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Billings judge to decide soon if new abortion laws will take effect

Planned Parenthood

Planned Parenthood's Martha Stahl and attorney Raph Graybill arrive at the Yellowstone County Courthouse on Aug. 16 to file a lawsuit against the state of Montana.

A Billings judge said Thursday he'd decide before Oct. 1 if he'll halt the implementation of three new abortion laws challenged by Planned Parenthood of Montana.

The laws ban abortions after 20 weeks gestational age; require a woman be informed of the option to view an ultrasound before an abortion; and require informed consent before a drug-induced abortion and block providing the medication through the mail.

There's a fourth law included in the lawsuit filed in August, to prohibit health insurances plans sold in the federal exchange in Montana from covering abortion care, but it's not part of the preliminary injunction request.

The legislation was passed earlier this year by Republican lawmakers, who hold a majority in the Legislature, and signed by Republican Gov. Greg Gianforte. The lawsuit is being defended by Republican Attorney General Austin Knudsen's office.

The case is before Judge Gregory Todd in Yellowstone County District Court, who will retire at the end of the year.

On Thursday, lawyers for Planned Parenthood of Montana and the state solicitor general squared off before Todd.

Raph Graybill, an attorney for Planned Parenthood, said if Todd allowed the laws to take effect Oct. 1, it would curtail the constitutional right to a pre-viability abortion, violate women's right to privacy and infringe on doctor-patient relationships, causing irreparable harm.

"Women seeking pre-viability abortions after 20 weeks or later will be categorically barred from doing so. Other women will have their right to obtain abortion earlier in pregnancy unduly infringed and will be stigmatized if they decide to seek such care," Graybill told the judge. "Plaintiffs and other health care providers will be forced to tell patients false medical information in violation of their rights to free speech and in violation of their ethical obligations as health care providers."

Planned Parenthood has argued the requirements in the informed consent law include claims the provider says are "medically inaccurate" information. That includes a requirement to inform women of possible complications from medication abortions, which the law lists as things like pregnancies not being terminated, that a medical abortion could be reversed, cardiac arrest, respiratory arrest, subsequent development of breast cancer and death as possible effects of the medication.

According to the Kaiser Family Foundation, medication abortion is safe and effective, with pregnancies terminated 99.6% of the time and a 0.4% risk of major complications. The mortality rate is 0.00064%

David Dewhirst, the solicitor general for Montana, argued that none of the new laws violated a woman's right to obtain a pre-viability abortion, but instead added protections to ensure women's health. He also said the new laws upgrade standards of care. 

"It's well settled in federal case law that states may regulate abortion practices in order to maintain the integrity," Dewhirst said. " ... The in-person requirement is important for many reasons, but the unifying purpose is to better protect women."

Michelle Diamond, also representing Planned Parenthood, said the number of appointments required in the informed consent bill, along with a 24-hour wait period, instead increase burdens on women.

"Mandatory delays are premised on the notion that women are not bright enough or mature enough to make these decisions without some help from the state," Diamond argued. "That infringes a woman's autonomy."

Dewhirst countered that the Legislature passed "three reasonable laws" and that Planned Parenthood waited until August to file its lawsuit to create a "timing emergency."

The state's argument also focused on fetal pain, with Dewhirst arguing that science has advanced on that area of study. House Bill 136, the bill banning abortions after 20 weeks, was titled the "Establish pain-capable unborn child protection act."

"It's abundantly clear from the bona fide medical evidence that we've provided that babies feel pain at 20 weeks, and probably much earlier," Dewhirst argued.

Diamond countered that studies show a fetus cannot feel pain until 24 weeks.

When asked by the judge whose right was being protected — the woman's or the fetus' — Dewhirst answered: "The point I'm making right now is that it is the child who's being protected. But HB 136 also is protecting the interests of women because it's uncontested that surgical abortions later in pregnancy present significantly higher risks to women, but it is the unborn pain-capable human beings that are the particular class the Legislature seeks to protect."

The bill requiring in-person medical visits and banning telehealth for abortion care is because the Legislature "has determined the standard of care can better be provided in person," Dewhirst argued.

"If these additional facts cause women to rethink or decline their abortion decision, that's a success, not because of the particular outcome but because women were provided information that made an actionable difference in their personal decision-making," Dewhirst said.

Diamond countered that Dewhirst's "rebuttal makes clear the purpose of the law is to discourage women from obtaining abortions," a statement the solicitor general disputed.

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