Abortion providers sue over Medicaid abortion rule

A trio of abortion providers in Montana are asking the courts to block a new rule issued by the state health department to require preauthorization for abortions covered by Medicaid, change what counts as a medically necessary abortion and limit who can provide abortions in Montana.

The rule was finalized earlier this month and is set to take effect May 1. Republican legislators have also passed a bill that would do the same thing in state law; that legislation is on its way to Gov. Greg Gianforte.

The lawsuit is from Planned Parenthood Federation of America, the Center for Reproductive Rights, and the ACLU of Montana on behalf of All Families Healthcare, Blue Mountain Clinic, and Planned Parenthood of Montana. It was filed in Lewis and Clark County District Court. It also seeks a temporary block while the court case plays out.

The abortion providers argue that the rule will “effectively eliminate abortion access for most Medicaid patients in the state.” Opponents to the legislation that advanced this session have said the timeline for getting preauthorization will make getting abortions more dangerous for women by delaying care, and that limiting who can perform the procedure will cut off access.

The rule would also require what the press release called an “unnecessary physical exam, requirement,” would would remove telehealth as an option for people seeking abortions. Because of its provisions, the rule would violate the Montana Constitution’s rights to privacy and equal protection, in addition to the Montana Administrative Procedure Act.

Montana’s state Constitution preserves the ability to access pre-viability abortions through its right-to-privacy provision upheld with the state Supreme Court’s 1999 Armstrong decision.

“Today, we are asking the court to halt a dramatic and rushed effort on the part of the state of Montana that would essentially cut off abortion access for Medicaid patients in the state. Not only does the rule threaten the health and safety of the very Montanans DPHHS purports to protect, it also violates their rights under the state’s own Constitution,” the providers said in a statement. “This is just another concerted effort to take away Montanans’ fundamental rights and restrict access to essential health care.

“Pregnant people who rely on Medicaid deserve the same vital, timely, and potentially life-saving care as every other Montanan. Unless this rule is blocked, health inequity in the state will dramatically increase as patients are forced to travel even further afield to access the health care they need, if they can at all. We are fighting to ensure that Montanans can make decisions about their own bodies, lives, and futures regardless of their income and insurance status.”

The department in an email late Friday said it would oppose the lawsuit.

“We stand by our rule to protect the integrity of Montana’s Medicaid program and look forward to defending it in court,” state health department Director Charlie Brereton said.