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Montana judge temporarily blocks enforcement of abortion ban; hearing next week

May 18, 2023, 10:40 AM

FILE - Gov. Greg Gianforte signs a suite of bills aimed at restricting access to abortion during a ...

FILE - Gov. Greg Gianforte signs a suite of bills aimed at restricting access to abortion during a bill signing ceremony on the steps of the State Capitol, in Helena, Mont., on May 3, 2023. A judge on Thursday, May 18, 2023, granted Planned Parenthood of Montana's request to temporarily block enforcement of a law that bans the abortion method most commonly used after 15 weeks of pregnancy until he can hear arguments from both sides at a hearing on Tuesday, May 23. (Thom Bridge/Independent Record via AP, File)
Credit: ASSOCIATED PRESS

(Thom Bridge/Independent Record via AP, File)

HELENA, Mont. (AP) — A Montana judge has temporarily blocked the state from enforcing a new ban on the type of abortion most commonly used after 15 weeks of gestation until he can hear arguments on the law next week.

District Court Judge Mike Menahan issued a temporary restraining order Thursday against a law that bans the use of dilation and evacuation abortions. Republican Gov. Greg Gianforte signed the bill into law on Tuesday and it took immediate effect.

The law would cause immediate and irreparable harm and damage to Planned Parenthood and its patients if it was allowed to remain in effect while the challenge played out in court, the order states.

Planned Parenthood of Montana filed a legal complaint over the constitutionality of the law on Tuesday, just hours after it was signed.

Martha Fuller, president and CEO of Planned Parenthood of Montana, said she was glad the judge recognized the harm that anti-abortion laws cause to patients seeking basic health care.

“Politics has no place in the exam room and we will not stand by as lawmakers race to take away access to abortion and strip us of our personal freedom,” Fuller said.

The state of Montana argued that the law did not completely ban dilation and evacuation abortions. The procedure could still be done if the provider kills the fetus first by injecting it with a drug or saline solution, thus preventing the fetus from feeling pain, the state said in a court filing.

A human fetus does not have the capacity to experience pain until after at least 24 weeks of gestation, according to the American College of Obstetricians and Gynecologists. Abortion opponents argue a fetus can feel pain earlier than that.

Second-trimester abortions can also be performed by using medications to induce labor and delivery. The procedure takes place in a hospital where the patient can be monitored.

“None of the alternatives offered by the state for the banned procedure are feasible,” Planned Parenthood of Montana said in a statement. “They also carry more risk to the patient. This law bans the safest procedure after 15 weeks.”

As part of its reply, the state is also asking the courts to overturn a 1999 Montana Supreme Court ruling that said Montana’s constitutional right to privacy includes the right to obtain a pre-viability abortion from the provider of their choice. The new law includes a provision saying the constitutional right to individual privacy does not include the right to a pre-viability abortion.

Menahan said he would hear arguments about the law next Tuesday, a time he has also set aside to hear arguments against a law that requires a woman to undergo an ultrasound before having an abortion and a new rule that requires prior authorization before Medicaid will pay for abortions.

Menahan restrained enforcement of the ultrasound law and the prior authorization rule earlier this month.

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Montana judge temporarily blocks enforcement of abortion ban; hearing next week