A disputed law that creates a new license for Montana abortion clinics is taking shape after the state health department recently released the proposed rules package detailing it wants to require. That comes after long delays sparked confusion and concern among providers. The rules bundle sets standards for the physical footprint of clinics such as exam room size and hallway width.
A medical director must be a physician, though that employee doesn't have to be physically onsite. Housekeeping must be provided daily. Clinics must have a written transfer agreement with a hospital in the case of an emergency.
The package calls for extensive record-keeping, specific sterilization protocols and a slew of written procedures, among other requirements. Supporters say licensure ensures patient safety and quality of care. Critics rebuke it as an effort to make it harder for abortion providers to exist in Montana, possibly leading to closure.
The need for this rulemaking process stems from House Bill 937, passed by the 2023 Legislature. It applies to any facility that performs surgical abortions or provides abortion-inducing drugs to five or more patients a year, except for hospitals and outpatient centers for surgical services. “Even my beauty shop, which doesn’t provide surgeries, is required to be licensed and inspected by the health department,” said Sharon Nason, who chairs Pro-Life Montana, a nonprofit that aims to make abortion “unthinkable,” during last week’s public hearing on the rules package.
Anti-abortion activists gather at the Montana State Capitol for the March for Life on Friday. Clinics must meet standards set by the Montana Department of Public Health and Human Services. Once licensed, they are then subject to annual inspections and must pay a $450 fee each year.
DPHHS maintains that these rules are based on best practices for outpatient surgical centers. It allows for clinics that do not provide all “legally permissible” abortions — which current Montana law defines as up to the point of fetal viability — to apply for a waiver for any requirements specific to surgical procedures, most common for abortions later in pregnancy. There were 1,798 reported abortions in Montana in 2021, according to data from the U.
S. Centers for Disease Control and Prevention. About 27% were surgical.
The remaining were completed through medication. “These rules matter because facilities performing surgical abortions, including those in the second trimester, should be operated in a way that ensures they are prepared to manage serious, life-threatening complications,” said Katie Daniel, the state policy director for Susan B. Anthony Pro-Life America, a national organization dedicated to ending abortion.
Two abortion providers filed suit against HB 937 in September 2023 on the grounds that regulatory requirements had not been published by the time the law was set to go into effect. A Helena judge granted a preliminary injunction allowing that licensure would not be required until DPHHS put forth a rules package. The judge didn't weigh in on the validity of the law itself.
With the publication of the proposed administrative rules on July 26 and a public hearing on Aug.16, abortion clinics could soon be violating the law if they don’t meet the licensure requirements. “They do not have anything to do with patient safety,” said Helen Weems, owner of Whitefish-based All Families Healthcare, where abortion is provided, during the hearing.
“Instead, they are a political strategy by extremist lawmakers designed to shut down clinics and limit abortion access by imposing bureaucratic and unnecessary requirements.” 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 2023.
Montana’s Legislature, led by majority Republicans, has a track record of trying to undermine abortion protections in the state. It passed three bills in 2021 to curtail access: a 20-week ban, prohibition of medication abortion by telehealth providers and a mandated 24-hour waiting period for medication abortions. All three were struck down by the state’s Supreme Court.
Two years later, during the 2023 session, lawmakers passed a 15-week abortion ban, now held up on legal challenges. Critics of HB 937 say the legislation is part and parcel of a tactic called Targeted Regulation of Abortion Providers, or TRAP laws, which specifically saddle abortion providers with onerous regulations that make it difficult to comply and, therefore, keep the doors open legally. According to the Guttmacher Institute, 23 states have such laws on the books regulating abortion providers in a way that goes beyond what is necessary to ensure patient safety.
There are 17 states that impose “onerous” licensing standards comparable to surgical centers, the reproductive health policy organization found. Montana would join their ranks, according to Nicole Smith, the executive director of Montanans for Choice, a reproductive health nonprofit. “Let's be clear about the intention of TRAP laws,” she said during the hearing.
“They seek to create facility licensing standards so cumbersome that it will be nearly impossible for most providers to meet those standards, resulting in the closure of clinics. When clinics close, people do not have access to the health care they need.” A CI-128 ballot petitioner seeks signatures from voters at the Missoula Pride Parade on June 15.
One study from the American Medical Association found a 2013 Texas law that required abortion clinics to meet safety standards akin to a hospital caused the distance to the nearest abortion provider to increase by a hundred miles or more in 56 counties. The U.S.
Supreme Court later struck down the law as unconstitutional. Public comment on the rules package is open through Aug. 23.
People can submit testimony via email to [email protected] or by mail. It remains unclear how these rules, if approved, would interact with this election cycle's ballot initiative for a constitutional amendment guaranteeing the right to an abortion in Montana.
That measure was approved for the ballot this week. Carly Graf is the State Bureau health care reporter for Lee Montana. By Mail: Bailey Yuhas, Department of Public Health and Human Services, Office of Legal Affairs, P.
O. Box 4210, Helena, Montana, 59604 By Fax: (406) 444-9744 By Email: [email protected] All comments must be received by 5 p.
m. on Friday, August 23 Get Government & Politics updates in your inbox! Stay up-to-date on the latest in local and national government and political topics with our newsletter. State Bureau Health Care Reporter {{description}} Email notifications are only sent once a day, and only if there are new matching items.
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