HELEN WEEMS and JANE DOE, Plaintiffs and Appellees, v. STATE OF MONTANA, by and through AUSTIN KNUDSEN, in his official capacity as Attorney General, and TRAVIS R. AHNER, in his official capacity as County Attorney for Flathead County, Defendants and Appellants

HELEN WEEMS and JANE DOE, Plaintiffs and Appellees, v. STATE OF MONTANA, by and through AUSTIN KNUDSEN, in his official capacity as Attorney General, and TRAVIS R. AHNER, in his official capacity as County Attorney for Flathead County, Defendants and Appellants. Oral Argument is set for Wednesday, December 14, 2022, at 9:30 a.m. in the Courtroom of the Montana Supreme Court, Joseph P. Mazurek Justice Building, Helena, Montana. Live-streamed through the Court’s website at http://stream.vision.net/MT-JUD/ Plaintiffs, who are advanced practice registered nurses (APRNs), challenged the constitutionality of § 50-20-109(1)(a), MCA, which provides that only a licensed physician or physician assistant may perform abortions in Montana. They argue that this infringes on their patients’ right to privacy under Article II, Section 10, of the Montana Constitution. The District Court concluded that the Montana Board of Nursing may determine if APRNs are competent to provide abortion services. Relying on Armstrong v. State , a 1999 Montana Supreme Court decision that found a previous version of § 50-20-109(1)(a), MCA, unconstitutional, the court further concluded that the Montana Constitution protects a patient’s right to choose their healthcare provider who performs any lawful medical procedure for which the medical community has deemed the provider qualified. Since APRNs who obtain the proper certification and training are medically qualified to perform abortions according to the Board of Nursing, the court ruled that § 50-20-109(1)(a), MCA, unconstitutionally removes qualified APRNs from the pool of providers patients may choose. On appeal, the State argues that the Legislature amended § 50-20-109(1)(a), MCA, to comply with Armstrong and the District Court erred in concluding that the Board of Nursing has the authority to determine if APRNs may perform abortions. The State further argues that the court misconstrued Armstrong to require strict scrutiny of the statute as § 50-20-109(1)(a), MCA, is a health and safety regulation. The State argues that the constitutional right to privacy is not implicated because the statute only regulates who can perform an abortion, not whether a person may obtain an abortion.

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