By Matt Volz

HELENA, Mont.— Montana is proposing wide-ranging rules for licensing abortion clinics under a disputed state law, raising a new potential obstacle for patients even as a constitutional amendment to protect access appears headed for the November ballot.

The proposed rules, released July 26 by the state Department of Public Health and Human Services, would set requirements for facilities that perform abortions for or provide medication abortion to at least five patients a year, excluding hospitals and outpatient surgical centers. Clinics would have to meet minimum limits for the size of their rooms and hallways, submit to annual state inspections, maintain written patient transfer agreements with hospitals, and be led by a medical director who is a licensed physician.

Nurse practitioner Helen Weems, who runs All Families Healthcare in Whitefish, one of three organizations that provide abortions in Montana, said the proposed regulations were unnecessary and would limit access to abortion in the state.

“These requirements, including the requirement that abortion clinics have a physician medical director, are not about patient health or safety — they are purely about creating havoc and hardship for abortion providers,” said Weems, who successfully sued the state in 2018 to strike down a law requiring that abortions be performed only by physicians or physician assistants.

Many of the proposed rules are similar to laws and regulations passed in about two dozen other states, and their supporters call them necessary safeguards for patient safety.

“Their objections to very reasonable requirements — like annual inspections, having lit exit pathways, and making sure a facility director is in good standing — show their disregard for the women who walk through their doors,” said Kelsey Pritchard, director of state public affairs for Susan B. Anthony Pro-Life America, a group opposed to abortion.

In the public notice of the rules, state health officials said most of the proposed requirements are based on those for outpatient surgical centers or on minimum standards imposed on all health care facilities and “represent the appropriate level of regulatory requirements to impose on abortion clinics.”

Health department spokesperson Holly Matkin said department officials can’t comment further because of pending litigation.

Abortion rights advocates say the rules would do nothing to protect patients while raising costs for clinics. They call such rules “TRAP” laws, which stands for targeted restrictions on abortion providers.“

Laws targeting abortion providers result in closure disproportionately affecting independent abortion clinics and the communities they serve,” said Erin Grant, co-executive director of Abortion Care Network, an association representing independent abortion clinics.

Similar rules were popular in the 2010s among states whose political leaders opposed abortion, but few states have passed them since the U.S. Supreme Court overturned Roe v. Wade in 2022, allowing for more restrictive state bans.

“They’re a blast from the past,” said Ivette Gomez, a women’s health policy analyst at KFF, a health information nonprofit that includes KFF Health News. “Their main goal was to make it difficult to provide abortion services.”

The Guttmacher Institute, a nonprofit abortion rights research group, cites TRAP laws as a main factor behind a decrease of 50 clinics in the South and 33 clinics in the Midwest from 2011 to 2017.

Attempts by Montana’s Republican-led legislature and Republican governor to pass an abortion ban or more severe restrictions on access have been stymied by a state Supreme Court ruling in 1999 that extended the state constitution’s privacy protections to a person’s medical decisions —including abortion.

The proposed regulations were drafted to accompany a state law, House Bill 937, that creates licenses for clinics that perform abortions. It was among several anti-abortion laws the state passed in 2023 that the courts have blocked. Others include a ban on abortions after 15 weeks of pregnancy, a ban on dilation-and-evacuation procedures, and a measure that made it more difficult for the state’s Medicaid program to pay for abortions.

Weems, her clinic, and the Blue Mountain Clinic in Missoula, which also provides abortions, sued to block the licensure law from taking effect, arguing it would unconstitutionally discriminate against abortion clinics by singling them out for regulation. Planned Parenthood, which provides abortions and has clinics in Billings, Great Falls, and Helena, is a plaintiff in lawsuits challenging other state anti-abortion laws.

A state district court judge in Helena granted All Families and Blue Mountain a temporary restraining order against HB 937 because the rules hadn’t yet been drafted. Now that they have been released, the rules go through a 30-day public comment period, including an Aug. 16 public hearing, before they can be finalized by the health department.

Judge Chris Abbott’s order blocks the law from taking effect until 60 days after the state health department adopts the regulations and both sides review them.

The Montana rules also would require the state to investigate any complaint against a clinic, and require clinics to keep employee and patient files that can be inspected by state regulators, conduct background checks and annual training of employees, and document that patients gave informed consent and were given a hotline number to help people who may be victims of sex trafficking or are being coerced into having an abortion.

Some of the rules could be waived depending on the scope of abortion services provided — for example, if a clinic has a policy not to abort a fetus over a certain gestational age, according to the draft.

It’s unclear what will happen to the licensure rules if they’re adopted and voters in November approve a ballot measure to amend the state constitution to explicitly protect abortion rights. The secretary of state’s deadline to certify the proposed constitutional amendment, which has been in and out of court for months, is Aug. 22, according to Richie Melby, a spokesperson for the office. Organizers say they have exceeded the signatures needed to place the question on the ballot.

The ballot initiative would say, in part, that the right to abortion “shall not be denied or burdened unless justified by a compelling government interest achieved by the least restrictive means.”

If both the constitutional amendment and the abortion license regulations are adopted, it would likely spark a legal battle around whether the rules are a justifiable burden, Gomez said.

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

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(KFF/AMT)