Future of abortion provider licensure requirement up in the air as deadline looms
At least five abortion clinics in Montana will be subject to a batch of new rules issued by the state health department starting Nov. 19, unless a Helena judge issues an order granting relief. Two clinics say these regulations, if implemented, would significantly disrupt patient care and possibly force the facilities to shut down entirely.
Lawyers from ACLU Montana and the Center for Reproductive Rights argued on behalf of their clients, All Families Healthcare in Whitefish and Blue Mountain Clinic in Missoula, in front of Judge Christopher Abbott in Lewis and Clark County District Court on Friday.
Only a few days removed from Montanans showing resounding support for a ballot measure to enshrine abortion rights in the state Constitution, the plaintiffs sought injunctive relief against rules from the Department of Public Health and Human Services that, they say, uniquely target abortion providers.
"Fundamental rights are not subordinate to the state's police power," said Hillary Schneller, a lawyer from the Center for Reproductive Rights, during the Nov. 8 hearing.
House Bill 937, passed by the Montana Legislature during the 2023 session, requires all abortion clinics to secure a license created by the state health department in order to operate. The Department of Public Health and Human Services is charged with crafting those regulations through a public rulemaking process and overseeing the issuance of the license.
It adopted the rules Sept. 20, jumpstarting a two-month countdown to the deadline for clinics such as Blue Mountain and All Families to come into compliance.
Any health facility that provides abortion-inducing drugs like mifepristone to five or more patients a year or performs surgical abortions must get a license. Providers at these clinics are subject to licensure by state professional boards, but the clinics have never before been required to secure separate licensure through the state health department. DPHHS said in its original administrative rule proposal that five clinics would be impacted, though it did not name which.
Many of the new regulations mimic those applied to outpatient surgical centers. Exam rooms and hallways must be a certain size. Clinics must have a written transfer agreement with a hospital in case of emergency, and they must hire a medical director that is a physician, though that employee doesn't have to be on-site. There are particular recordkeeping mandates, specific sterilization protocols and a slew of written procedures, among other requirements.
It also requires abortion facilities to pay $450 to obtain a license, hundreds of dollars more than other health care facilities regulated by the state health department. Abortion clinics would have to re-certify their license annually, whereas other health facilities can obtain licenses that last up to three years.
Plaintiffs argue that HB 937 violates Montanans constitutional right to privacy because it singles out abortion providers. Physicians who operate in a private practice, for example, are not required to obtain licensure from DPHHS, even if they provide almost identical miscarriage or gynecological care, they say.
Jennifer Mayo, an OB-GYN at Western Montana Clinic, submitted an affidavit on behalf of the plaintiffs articulating what they see as an inconsistency.
"The procedures I perform in my office for management of miscarriage are identical in skill, technique, and risk to abortion procedures," she writes in the affidavit. "Additionally, the medications I prescribe to manage miscarriage are identical to the medications used to induce an abortion. There is no medical reason that would necessitate different facility licensure or facility requirements for an induced abortion, as compared to management of miscarriage.
Abbott acknowledged that some of the regulations proposed seemed somewhat "benign," and asked the plaintiffs to demonstrate how things like general sanitation standards would compromise abortion access. Toward the state, the judge focused much of his questioning on what qualifies as a "surgical" procedure under the law, and why DPHHS chose to liken the abortion licensure regulations to those for outpatient surgical centers, which mostly include facilities that offer orthopedic or cosmetic operations.
The overwhelming majority of abortions in Montana are medication abortions that take place during the first trimester. All Families also provides abortion through aspiration, and Blue Mountain Clinic offers aspiration plus dilation and evacuation abortions during the second trimester.
"None of those seem comparable in my mind to a knee replacement, or a hip replacement or the sorts of things that we do at a surgical center," Abbott said. "So, why are we regulating them like a surgical center?"
Representing the state, Thane Johnson conceded that finding the exact right assortment of regulations for abortion providers, as required by HB 937, is a "moving target," and that there might be some in the package worth revisiting. But he emphasized DPHHS' view that many of the rules in question are "common-sense" practices to ensure patient safety.
"In a way, the plaintiffs want their cake and to eat it too," Johnson said. "They want to be treated as premium health care but when the state treats them like premium health care, they claim it's too burdensome."
But the plaintiffs say these regulations go beyond health and safety regulations — which abortion providers are already subject to — and seek to undermine the availability of abortion care in Montana.
According to an affidavit submitted by Joey Banks from Blue Mountain Clinic, the facility provided 350 abortions last year. The rules, if enacted, would make it "more difficult, if not impossible, for Blue Mountain to continue offering abortion care," it reads. "As a result, our patients will face increased costs, delays, or experience other needless interferences ... "
The state called Tara Wooten, the DPHHS licensure bureau chief, as a witness. She explained that the DPHHS rules package includes a waiver process designed to allow abortion clinics to be exempted from some of the regulations if not applicable to the services they provide or if it's shown to be too costly.
"We made it broad so that we could work one-on-one with providers to determine what could be waived," Wooten said during her testimony. This waiver process is meant to ensure flexibility "as long as it doesn't jeopardize patient safety."
Both All Families Healthcare and Blue Mountain Clinic have applied for waivers, but received no response from DPHHS. Wooten said the department was in a holding pattern awaiting the outcome of the hearing.
Abbott said he would issue a decision on whether to grant a temporary restraining order and/or preliminary injunction before the Nov. 19 deadline, perhaps by late next week.
Carly Graf is the State Bureau health care reporter for Lee Montana.
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