At the end of January, the ACLU of Montana and the Center for Reproductive Rights filed a lawsuit in Lewis and Clark County seeking an injunction against the state law that bars advanced practice registered nurses (APRNs) from providing abortions. The suit was filed on behalf of a nurse midwife, known in the suit as Jane Doe, and Helen Weems, the certified nurse practitioner who reopened All Families Healthcare in Whitefish on Feb. 5. Weems worked in partnership with physician assistant Susan Cahill, who operated All Families in Kalispell as the only abortion provider in the Flathead Valley until the clinic was destroyed by an anti-abortion activist in 2014 (see: “Can’t do it alone,” May 15 2014).
Currently, state law expressly states that only physicians and physician assistants may perform abortions, and it is a felony for other clinicians to do so. Helen Weems, who answered questions from the Independent via email, says that APRNs regularly perform procedures similar to or greater in complexity to early-term abortions, including endometrial biopsies and IUD placements. “APRNs also provide miscarriage management by numbing the cervix and emptying the uterus,” Weems says. “This is the exact same procedure as an abortion.”
Weems says she chose to bring the case because of the shortage of available practitioners. “In deciding to be a plaintiff, my thought process was pretty straightforward: Women need access to safe abortion. I have the skills to provide safe abortion. What do I need to do to make this happen?” she writes. “This is an unjust, arbitrary, and unconstitutional limitation for a service that is so desperately needed.” She says the clinic will also provide a variety of health services, including a patient care fund for contraception.
“[Weems and Doe] are both in the category of advanced practice registered nurses who are providers that are qualified to provide abortions based on their training and experience, generally,” says Caitlin Borgmann, executive director of the ACLU of Montana. “The research has shown that consistently, and they do provide abortions in many other states, and they do so as safely and effectively as doctors and physician assistants.”
A statement from the ACLU says that the nurse midwife in the case chose anonymity due to safety concerns. “Ms. Doe fears that, if she discloses her identity publicly, she will be exposed to harassment, intimidation, and violence. This fear is based on a history of harassment, intimidation, and violence against abortion providers in the United States generally, and in Montana in particular.”
Until now, the Flathead has not had an abortion provider since All Families was destroyed in 2014. During those years, the closest provider was more than 120 miles away, in Missoula. Until All Families reopened last week, 93 percent of Montana counties lacked an abortion provider.
The suit builds on the Montana Supreme Court’s ruling in Armstrong v. State in 1999, when the Center for Reproductive Rights sued the state on behalf of medical professionals for the rights of physician assistants to provide abortion services. Armstrong challenged a state law that targeted Cahill specifically, as she was the only PA in the state providing abortion services. That ruling resulted in the state Legislature adding PAs to the list of qualified abortion providers. “Definitely we believe this case is squarely controlled by the decision in Armstrong v. State,” says Borgmann. “There’s nothing about the reasoning in that opinion or the wording that indicates that the Montana Supreme Court felt the opinion should be limited to physician assistants.”
The Armstrong opinion rested on an expansive interpretation of the Montana state constitution’s privacy protections, which are stronger than those in the U.S. Constitution. “The right of privacy should also address information gathering and protect citizens from illegal private action and from legislation and governmental practices that interfere with the autonomy of each individual to make decisions in matters generally considered private,” reads the unanimous opinion authored by Justice James C. Nelson.
While the Montana Legislature has regularly produced attempts to restrict abortion access, Borgmann says those attempts would stand little chance against a challenge in court. “I think it’s pretty clear that these really onerous TRAP [Targeted Regulation of Abortion Providers] laws that have been introduced around the country would be — they’re already being struck down under the federal Constitution. There’s no question they would be unconstitutional under the Montana constitution.”
Lacking similarly strong protections, dozens of clinics in other states have closed in the U.S. over the last decade.