Montana Judge Temporarily Blocks Law Requiring Abortion Clinics to Be Licensed

A photo of a women’s clinic in Moorhead, Minn., on April 13 2023. Ines Bel Aiba/AFP via Getty Images

A Montana judge has granted a temporary restraining order to block a law requiring abortion clinics to be licensed in order to practice.

The law, House Bill 937 (pdf), introduced by Republican state Rep. Lola Sheldon-Galloway (R-Great Falls), was signed in May by Republican Gov. Greg Gianforte. It was set to take effect on Oct. 1.

Lewis and Clark County District Court Judge Christopher Abbott wrote in his order filed Sept. 27 that Montana has yet to develop a process to license the clinics.

The block is temporary, the judge points out.

“The Court is not considering today a preliminary injunction that will endure throughout the litigation, but a temporary restraining order aimed at protecting the parties’ positions until a hearing can be held,” he wrote.

He said the temporary restraining order would “give [abortion] Providers sufficient assurance that they can continue operations while the [Montana Health] Department effectuates the legislature’s command that they develop a licensure process.”

The temporary restraining order only applies to Section 2(1) of the bill, which states: “A person may not operate or advertise the operation of an abortion clinic unless the person is licensed by the department.”

In Montana, abortion clinics are not presently licensed, but their providers are. The judge noted in his order that there’s no process for these clinics to secure a license before Oct. 1.

“Before licenses can be issued, the [Montana Health] Department must first promulgate rules,“ Judge Abbott wrote, adding: ”The department, however, has neither adopted nor even publicly proposed temporary or final rules to implement H.B. 937, nor has it otherwise given providers guidance on how they can avoid violations of Section 2(1) in the interim.

“While there may or may not prove to be a compelling state interest in licensing abortion clinics, a question for another day, there is no compelling interest in imposing a mandatory licensure regime while issuing no licenses. Nor can the court avoid the constitutional problems with Section 2(1) as written by engrafting onto it an implied impossibility defense, because that would require the court to ‘insert what has been omitted,'” he added.

Montana abortion providers had sued the state (pdf) at the start of the month over the legislation. They argued that the law is unconstitutional in part because there'd been no guidelines from the state health department on how to obtain a license, thereby making compliance by Oct. 1 “impossible.”

“HB 937 is also vague as to whether Plaintiffs must become licensed as “abortion clinics” or whether they may continue to provide that care under the laws to which they and similar clinics are currently subject,” the filing read.

The abortion providers also noted that abortions are already regulated in the state. “Plaintiffs have been, and will continue to be, subject to generally applicable State, federal, and professional oversight and regulation,” they wrote. “As mainstream medical authorities have repeatedly concluded, there is no valid reason to target abortion care for additional regulation.”

The ACLU of Montana, the Center for Reproductive Rights, and law firm Dechert, LLP, filed the lawsuit on behalf of All Families Healthcare, Blue Mountain Clinic, and Helen Weems, APRN-FNP.

The lawsuit names the defendants as the state of Montana, the Department of Public Health and Human Services (DPHHS), and Charlie Brereton, its director.