Montana Supreme Court decides registered nurses and midwives can continue providing abortion care

HELENA, Mont. (AP) — Montana’s Supreme Court ruled unanimously Friday that advanced-practice registered nurses can continue to provide abortion care in the state, likely setting up legal clashes with the 2023 Legislature, which passed restrictive laws saying only physicians can perform abortions.

The state failed to prove that an abortion performed by a family nurse practitioner or certified nurse-midwife presents more risk to the patient than abortions provided by physicians or physician assistants, according to the opinion written by Justice Laurie McKinnon.

“This case was not about the right to abortion — it was about whether women have a right to an elevated standard of care during an abortion,” said Emilee Cantrell, spokeswoman for the Montana Department of Justice. “The Montana Supreme Court said ‘no’ and lowered the standard of care set by the Legislature, effectively constitutionalizing the right of unqualified individuals to perform unregulated abortions.”

Montana is one of at least 19 states that allow advanced-practice registered nurses to provide abortion care. APRNs have at least a master’s degree in nursing.

Justices found that a law making it a felony for providers other than physicians and physician assistants to perform abortions violated the patient’s fundamental right to privacy to seek a pre-viability abortion from the qualified health care provider of her choosing — a standard set in a 1999 Supreme Court ruling in the Armstrong case.

“Allowing APRNs to perform these services ensures Montanans maintain their constitutional right to access the quality healthcare they need,” Alex Rate, ACLU of Montana’s interim co-executive director, said in a statement.

Friday’s opinion upholds a February 2022 ruling by District Court Judge Mike Menahan, who found that a 2005 law that implemented the Armstrong ruling by also allowing physician assistants to provide abortion care was unconstitutional because it did not include properly trained APRNs.

The justices said court evidence showed APRNs are capable of providing care for miscarriages or stillbirths, and that early abortion procedures such as medication and aspiration abortions require similar care. The state did not argue that APRNs present a genuine health and safety risk when providing miscarriage care, the justices noted.

Montana’s 2023 Legislature passed several bills to restrict abortion access, including provisions to only allow physicians to provide abortion care, to require prior authorization before Medicaid pays for abortions and to prevent the most common abortion procedure used in the second trimester of pregnancy. Also, a bill advanced that seeks to make the court reconsider the Armstrong ruling, by saying that the state’s constitutional right to privacy does not include the right to an abortion.

The Montana Supreme Court noted that the state did not ask it to overturn the Armstrong ruling during the course of the case initially brought by Helen Weems, an APRN who owns a sexual and reproductive health clinic in Whitefish.

“Montana lawmakers have been relentless in their efforts to restrict access to essential health care,” Weems said in a statement.

Under earlier rulings in the case, Weems has been allowed to provide abortion care since 2018. Other APRNs, with proper training, were allowed to begin performing abortions after Menahan’s 2022 ruling.

“It is more important than ever to protect our patients and their ability to make decisions about their health and families,” Weems said. “I look forward to continuing to make abortion care more accessible in our state.”