Judge says state can’t enforce law that bars nurses from performing abortions

Posted at 4:39 PM, Apr 09, 2018
and last updated 2018-04-09 18:39:21-04

A state judge has blocked the state from enforcing a law prohibiting certain nurses from performing abortions, opening the door for expanded abortion services in Montana.

District Judge Mike Menahan of Helena last week granted a request by the American Civil Liberties Union of Montana and the Center for Reproductive Rights, to block enforcement of the law while he decides a lawsuit to strike down the law entirely.

“At this state of the litigation, the state has not met its burden of showing a compelling state interest in restricting Montana women’s fundamental right to privacy,” he wrote.

Caitlin Borgmann, executive director of ACLU-Montana, said Monday that only four Montana counties currently have an abortion provider.

“Allowing advanced-practice nurses to perform these services as the case is pending will ensure Montanans have the quality health care they need,” she said in a statement.

Aided by the ACLU and the center, a Whitefish advanced-practice nurse and an unnamed Montana nurse midwife filed suit in January to strike down Montana’s law that allows only physicians or physician’s assistants to perform abortions.

The lead plaintiff, Helen Weems, has re-opened a Whitefish health clinic that had performed abortions but was severely damaged by vandalism in 2014. It was the only abortion provider in the Flathead Valley.

Weems plans to offer abortions at the clinic once she completes training and is authorized by the state Board of Nursing.

Menahan said the lawsuit could take months or years to resolve, and that he saw no reason to leave Weems open to possible prosecution during that time, if the Board of Nursing says providing abortion is within her “scope of practice.”

Last month, state lawyers argued against an immediate ban on enforcing the law.

They pointed to an American Journal of Public Health article showing that 1.8 percent of abortions performed by a “newly trained nurse” had complications, compared to 0.9 percent by physician-attended abortions – and said therefore the state had a compelling interest to ban nurses from performing the procedure.

Yet Menahan said the same article concluded that the complications were “clinically equivalent” among newly trained nurses, midwives, physicians and physician’s assistants.

“This article does not support the state’s contention that (state law) is necessary to preserve the health of Montana women seeking abortion care,” he wrote. “Absent evidence to the contrary, the court is satisfied the Board of Nursing is competent to set appropriate licensing requirements and police Montana’s advance-practice registered nurses.”

Menahan issued his ruling last Wednesday.