Weems v. State

05/12/2023

DA 22-0207
Case Number: DA 22-0207

IN THE SUPREME COURT OF THE STATE OF MONTANA

2023 MT 82

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.

APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. ADV-2018-73
Honorable Mike Menahan, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

Austin Knudsen, Montana Attorney General, Kathleen L. Smithgall, Brent
Mead (argued), Assistant Solicitors General, Helena, Montana

Emily Jones, Special Assistant Attorney General, Jones Law Firm, PLLC,
Billings, Montana

For Appellees:

Alex Rate, Akilah Lane, ACLU of Montana Foundation, Inc. Missoula,
Montana

Hillary Schneller (argued), Center for Reproductive Rights, New York,
New York

For Amici National Association of Nurse Practitioners in Women’s Health and the
American College of Nurse-Midwives:

Lindsay Beck, Beck, Amsden & Stalpes PLLC, Bozeman, Montana
 Johnathan K. Youngwood, Simpson Thacher & Bartlett LLP, New York,
New York

For Amici Legal Voice and Women’s Law Project:

Mathew Gordon, Perkins Coie LLP, Seattle, Washington

Argued and Submitted: December 14, 2022

Decided: May 12, 2023

Filed:

ir-, 6-•-•f
__________________________________________
Clerk

2
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 The State of Montana appeals the February 25, 2022 Order on Motions for Summary

Judgment entered in the First Judicial District Court, Lewis and Clark County. The District

Court held § 50-20-109(1)(a) (2005), MCA, which restricts providers of abortion care to

physicians and physician assistants (PAs), violated a woman’s fundamental right of privacy

to seek abortion care from a qualified health care provider of her choosing. The District

Court held the State had failed to demonstrate that Advanced Practice Registered Nurses

(APRNs) performing abortions present a medically acknowledged, bona fide health risk.

We conclude there is no genuine dispute of fact that abortion care is identical to the care

APRNs already lawfully provide in Montana; that abortion care is exceedingly safe; and

that abortion care can safely be provided by APRNs. Accordingly, there is no medically

acknowledged, bona fide health risk for the State to restrict the availability of abortion care

by preventing APRNs from performing abortions.

¶2 We affirm and restate the issue as follows:

Did the State demonstrate that abortions performed by APRNs present a medically
acknowledged bona fide public health and safety risk sufficient to invoke the State’s
regulatory authority to restrict access to abortion care guaranteed by Montana’s
fundamental constitutional right to privacy?

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Helen Weems, APRN-FNP, is the owner and sole clinician at All Families

Healthcare, a sexual and reproductive health clinic in Whitefish, Montana. She holds a

license issued by the Montana Board of Nursing (Board) as a registered nurse and a

certificate in the advanced practice of Family Practice. Jane Doe, APRN-CNM, is a

3
licensed registered nurse with a certificate in the advanced practice of Nurse Midwives.

Both Weems and Jane Doe (hereinafter, collectively called Weems) are authorized by the

United States Drug Enforcement Administration (DEA) and § 37-8-202(1)(h), MCA, to

prescribe prescription medication. Additionally, each may practice independently without

supervision of a physician.

¶4 In 2005, the Montana Legislature amended § 50-20-109(1)(a), MCA, to add PAs to

those health care providers who could provide constitutionally protected abortion care. As

amended, § 50-20-109(1)(a), MCA, made it a felony for any licensed or competent

provider, except physicians and PAs, to provide early abortion care. On January 31, 2018,

Weems challenged the constitutionality of § 50-20-109(1)(a), MCA, claiming that the

statute did not codify the full scope of this Court’s holding in Armstrong v. State, 1999 MT

261, 296 Mont. 361, 989 P.2d 364. Here, Weems argues Armstrong established that Article

II, Section 10, of the Montana Constitution guarantees a woman a fundamental right of

privacy to seek abortion care from a qualified health care provider of her choosing, absent

a clear demonstration of a medically acknowledged, bona fide health risk. Weems

maintains that limiting the scope of qualified health care providers to physicians and PAs

conflicts with Article II, Section 10, and this Court’s interpretation of that right in

Armstrong, because APRN-FNPs and APRN-CNMs are qualified to perform early

abortion care. Conversely, the State maintains that § 50-20-109(1)(a), MCA, did codify

Armstrong because all that was at issue in Armstrong was whether PAs could perform

abortions. The State argues it has authority to provide for the general health and safety of

4
Montanans and that early abortion care presents a risk of harm beyond what an APRN is

capable of handling.

¶5 On April 4, 2018, the District Court issued a preliminary injunction enjoining the

State from enforcing § 50-20-109(1)(a), MCA. The State appealed the preliminary

injunction to this Court. On April 26, 2019, we affirmed the preliminary injunction.

Weems v. State, 2019 MT 98, 395 Mont. 350, 440 P.3d 4 (Weems I).

¶6 After our decision in Weems I, the parties conducted discovery between May 2018

and June 2021 and filed cross-motions for summary judgment. On February 25, 2022, the

District Court granted Plaintiffs’ motion for summary judgment on their Article II, Section

10, claim, and enjoined the enforcement of § 50-20-109(1)(a), MCA.1 Neither party has

asked the District Court, or this Court on appeal, to revisit our decision in Armstrong. The

dispositive conclusion made by the District Court, and the only one we address here, was

that the State failed to “clearly and convincingly demonstrate a medically acknowledged,

bona fide health risk which justifies interfering with a patient’s fundamental right[.]” The

District Court reasoned, “[t]he Montana Constitution protects not only a patient’s right to

seek and obtain lawful medical procedures, but also the patient’s right to choose the health

care provider who performs the procedure[,]” when that provider is licensed and

competent. The District Court found that the “medical community clearly considers

APRNs competent” to perform abortion practice. Both parties maintain that there is no

genuine dispute of material fact which would render summary judgment inappropriate.

1
The District Court declined to consider Plaintiffs’ claims premised upon a violation of the right
to dignity and equal protection and they are not, accordingly, part of this appeal.
5
¶7 The State appeals.

EVIDENTIARY RECORD

¶8 The evidentiary record on the parties’ cross-motions for summary judgment focused

on two general areas: (1) the delivery of early abortion care and associated potential risks;

and (2) licensing, qualification requirements, and scope of practice for APRNs. Before

addressing the substantive areas of evidence, we briefly address each expert witness’

background and expertise.

¶9 The State disclosed expert witness Dr. George Mulcaire-Jones, a family medicine

and obstetrics physician in Butte, Montana, who specializes in Cesarean sections, surgical

management of miscarriages, and care of high-risk pregnancies. In his deposition, Dr.

Mulcaire-Jones testified to his experience in women’s health, pregnancy,

pregnancy-related surgery, pregnancy termination, treatment of post-abortion

complications, and abortion risk factors. The State also disclosed Dr. Kathi Aultman as a

rebuttal witness. Dr. Aultman is an obstetrician-gynecologist (OB-GYN) licensed in

Florida who serves as a fellow of the American College of Obstetricians and

Gynecologists.2

¶10 Plaintiffs disclosed three expert witnesses: Dr. Suzan Goodman, a family medicine

physician licensed in California with a Master of Public Health; Dr. Joey Banks, a family

2
The Eastern District of Virginia found Dr. Aultman “was not current on the medical aspects of
abortion; indeed, she last performed an abortion in 1982.” Richmond Med. Ctr. for Women v.
Gilmore, 55 F. Supp. 2d 441, 449 (E.D. Va. 1999). Dr. Aultman’s expert testimony has also been
discredited by other courts. See Planned Parenthood of Greater Iowa, Inc. v. Miller, 30 F. Supp.
2d 1157, 1165 n.9 (S.D. Iowa 1998); Little Rock Family Planning Servs. v. Rutledge, 397 F. Supp.
3d 1213, 1301 (E.D. Ark. 2019).
6
medicine physician licensed in Montana; and Laura Jenson, an APRN-CNM licensed in

Oregon with a Master of Public Health and Science. Both Dr. Goodman and Dr. Banks

currently provide abortion care. Jenson practices in an outpatient setting where she

provides obstetric care, miscarriage management, contraception, and annual health care for

women. She also trains APRNs regarding their scope of practice and works with the

Oregon Board of Nursing to review and revise Oregon’s APRN regulations.

¶11 We now summarize the evidence presented to the District Court, organized by the

two substantive areas we have identified.

Abortion Care and Associated Potential Risks

¶12 Medication and aspiration abortion are the most common types of early abortion

care. Medication abortion involves the ingestion of pills to terminate the pregnancy. A

patient first takes mifepristone, which terminates the pregnancy, and then takes

misoprostol, which causes the uterine contents to pass in a process identical to miscarriage.

Patients early in their pregnancy prefer medication abortion for many reasons: they can

complete the process in a private place of their choosing; they can avoid fear of harassment

for their decision; and they can avoid potential violence from family members. During an

aspiration abortion, a clinician dilates the patient’s cervix and inserts a thin tube through

the cervix into the uterus and, with suction, removes the uterine contents. According to the

expert witnesses—including the State’s expert witnesses—medication and aspiration

abortions are very similar and use techniques and protocols identical to that used for

managing a miscarriage or a stillbirth. The State does not dispute that APRNs currently

7
manage miscarriages and stillbirths. Likewise, the State does not argue that APRNs present

a bona fide health and safety risk to Montanans when they provide miscarriage care.

¶13 Dr. Mulcaire-Jones, the State’s expert, opined that while APRNs may be able to

perform an abortion procedure, they are not trained to handle the full set of complications

which can result from an invasive surgical procedure such as an aspiration abortion.

Dr. Mulcaire-Jones explained that an aspiration abortion is a surgical procedure involving

the removal of tissue from the uterus with instruments, which may cause bleeding,

cramping, and possible infection. Dr. Mulcaire-Jones opined that there was an

unacceptable risk to women when abortions are performed without emergency backup

systems in place, such as when APRNs perform abortion care in their office. According to

Dr. Mulcaire-Jones, “[t]o have to travel to have an abortion in a safe setting where standard

of care measures are more likely to be met is no different than a patient who must travel

for any other type of elective surgery, which would require post-operative care and

monitoring.” He opined that medication abortions also carry risks of hemorrhage and

bleeding and, consequently, could require post-abortion care beyond what an APRN is

capable or authorized to provide. According to Dr. Aultman, the State’s expert rebuttal

witness, “[a]llowing less qualified practitioners to perform abortions, especially when they

cannot handle the serious and life-threatening complications that can occur, creates an

unacceptable risk for patients at any location, [which] expands exponentially in rural areas

without the necessary facilities and expertise to handle complications.”

¶14 Conversely, Dr. Goodman stated “[l]egal abortion is one of the safest medical

procedures in the United States.” She elaborated, “[c]omplication rates of abortion are
8
similar to or lower than other outpatient procedures.” Further, relying on various cited

scientific studies, Dr. Goodman explained “[t]he risk of death associated with childbirth is

approximately 14 times higher than that associated with abortion, and pregnancy-related

complications are more common among women having live births than among those

having abortions.” Dr. Goodman noted that national studies found the prevalence of rare

minor complications3 during first-trimester aspiration abortion among physicians, PAs,

APRNs, and CNMs, was 1.32% and the prevalence of major complications from abortions

requiring hospitalization, regardless of clinician type, was 0.05%. As a comparison,

abortion care has a lower prevalence of complications than other common procedures such

as wisdom tooth removal (7%) and tonsillectomies (between 8-9%).

¶15 Additionally, Dr. Goodman opined that “nearly every complication associated with

medication or aspiration abortion can safely be managed in an outpatient setting.” For

example, in most cases of hemorrhage—a rare event—patients are treated in the clinic with

medications that increase uterine contractions and reduce bleeding, or by repeat aspiration.

Incomplete abortions and associated infections can also be managed in an outpatient setting

with medication or repeat aspiration. Thus, when abortion-related complications do occur,

they typically are minor, easily treatable, and can be safely managed by properly trained

clinicians in an outpatient setting or by the patient at home.

¶16 The record also established that abortion services are tied to provider availability—

the number of providers who actually provide early abortion care—not the total number of

3
Rare minor complications include incomplete abortion, bleeding not requiring a transfusion, and
uncomplicated uterine perforation.
9
physicians or PAs located in the state. Only three clinics in Montana offer regular

aspiration abortion care: a Billings clinic that provides abortions up to 21.6 weeks

following the day of the patient’s last menstrual period (LMP); a Missoula clinic that

provides medication abortions up to 10 weeks following the day of the patient’s LMP and

aspiration abortions up to 18 weeks of the patient’s LMP; and Plaintiff Weems’s clinic in

Whitefish. On varying days, a health center in Helena offers abortions up to 14.6 weeks

following the day of the patient’s LMP and a clinic in Great Falls only offers medication

abortion when they have a provider available. In her deposition, Dr. Banks highlighted

research establishing that the median distance a patient must travel for early abortion care

in Montana increased by nearly 50 miles between 2011 and 2014. By 2014, women in

Montana had to travel on average 180 miles or more to reach their closest abortion provider,

making Montana one of the few states in the nation with such limited provider availability.

Dr. Banks provided that as of 2017, over 90% of counties in Montana had no abortion

provider and roughly 50% of Montana’s population lived in these counties.

¶17 Due to limited provider availability, women seeking early abortion care must often

travel great distances, requiring long travel times to access a provider. In addition to

finding the funds and means to travel, women must arrange for time off from work, make

family arrangements, and ensure funds are available to pay for care. Dr. Goodman

explained that difficulties associated with travel can result in delays in accessing abortion

care and have “safety repercussions.” The scarcity of providers can cause women to

experience delays accessing care, forcing them to remain pregnant until they can seek a

“later-term abortion,” which may result in comparatively higher risk, greater financial
10
expenses, and even ineligibility for medication abortion4 as pregnancy advances. The

evidence established that the availability or unavailability of even one abortion provider

can significantly impact access in Montana.

¶18 Finally, Dr. Goodman reported that it is uniformly established that APRNs can

provide early abortion care with the same safety and efficacy as physicians and PAs.

Dr. Goodman relied on the “most comprehensive study done” which compared

complications from aspiration abortions between physicians, PAs, APRNs, and CNMs.

The study, published in 2013, used data collected by Health Workforce Pilot Project. It

compared 5,812 aspiration procedures performed by physicians with 5,675 aspiration

procedures performed by APRNs and PAs. The study concluded “complications were

rare” among both groups of clinicians, and that complications were “clinically equivalent”

between the two groups. Dr. Goodman explained that the results confirmed existing

evidence from smaller studies “and from larger international and national reviews that have

found [APRNs] to be safe and qualified health care providers.”

Licensure by the Board of Nursing and APRN Scope of Practice

¶19 The Legislature has defined an APRN as “a registered professional nurse who has

completed educational requirements related to the nurse’s specific practice role, in addition

to basic nursing education, as specified by the board pursuant to 37-8-202.”

Section 37-8-102(1), MCA. Section 37-8-202(2)(b), MCA, sets forth the organization,

powers, and duties of the Board and, relevant to APRNs, provides:

4
Women become ineligible for medication abortion past 10 weeks from the day of the patient’s
LMP.
11
 The board may . . . define the educational requirements and other
qualifications applicable to recognition of advanced practice registered
nurses. Advanced practice registered nurses are nurses who must have
additional professional education beyond the basic nursing degree required
of a registered nurse. Additional education must be obtained in courses
offered in a university setting or the equivalent. The applicant must be
certified or in the process of being certified by a certifying body for advanced
practice registered nurses. Advanced practice registered nurses include nurse
practitioners, nurse-midwives, nurse anesthetists, and clinical nurse
specialists.

¶20 A person “may practice in [a] specified field of advanced practice registered nursing

upon approval by the board of an amendment to the person’s license granting a certificate

in a field of advanced practice registered nursing.” Section 37-8-409(1), MCA. “The board

shall grant a certificate in a field of advanced practice registered nursing to a person who

submits written verification of certification by a board-approved national certifying body

appropriate to the specific field . . . .” Section 37-8-409(1), MCA.

¶21 Section 37-8-202(2)(e), MCA, provides that the Board may “adopt rules necessary

to administer” Title 37, chapter 8, MCA (“Nursing”). Pursuant to this statutory power, the

Board has adopted a definition of “certifying body”5 and adopted the requirement that

APRNs “abide by the current practice standards and guidelines established by a national

professional organization for the APRN’s role and population focus.” Admin. R. M.

24.159.1405(1)(b) (2013). “National professional organization” is defined as “a

board-recognized professional nursing membership organization that delineates nursing

practice standards and guidelines.” Admin. R. M. 24.159.301(22) (2021). The National

5
The Board defines “certifying body,” as “a board-recognized national certifying organization that
uses psychometrically sound and legally defensible examinations for certification in APRN roles
and population focus.” Admin. R. M. 24.159.301(4) (2021).
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Organization of Nurse Practitioner Faculties is one of the national professional

organizations that delineates standards and guidelines for APRN-FNPs and provides

educational curriculum and content that includes women’s sexual and reproductive health,

pregnancy, and postpartum care. The American College of Nurse Midwives (ACNM) is

the Board-recognized national professional organization that delineates practice standards

and guidelines for APRN-CNMs. The ACNM requires the educational curriculum for

APRN-CNMs to include women’s sexual and reproductive health.

¶22 These national organizations provide the curriculum, practice standards, and

certifying exams which establish the baseline for licensure of APRNs, including

APRN-FNPs and APRN-CNMs. However, APRNs must further “engage in ongoing

competence development . . . [which] is the method by which an APRN gains, maintains,

or refines practice, knowledge, skills, and abilities.” Admin. R. M. 24.159.1469(1) (2021).

APRNs are required to be:

[A]ccountable to patients, the nursing profession, and to the board for
complying with the rules and statutes for the quality of advanced nursing care
rendered, for recognizing limits of knowledge and experience, for planning
for the management of situations beyond the APRN’s expertise, and for
consultation with or referring patients to other health care providers as
appropriate.

Admin. R. M. 24.159.1405(2) (2013). These rules provide the framework within which

APRNs must exercise their professional judgment to determine if they have the expertise

and background to address the health needs of any particular patient. These rules also

establish APRNs are responsible for determining the training and supervision, following

certification, necessary to competently perform the services they are providing.

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¶23 Neither the State nor the Legislature lists health services APRNs may or may not

provide. Instead, the Board’s administrative regulations establish an APRN’s practice,

including the following:

(a) establishing medical and nursing diagnoses, treating, and managing
patients with acute and chronic illnesses and diseases; and

(b) providing initial, ongoing, and comprehensive care, including:

(i) physical examinations, health assessments, and/or other screening
activities;

(ii) prescribing legend and controlled substances when prescriptive
authority is successfully applied for and obtained;

(iii) ordering durable medical equipment, diagnostic treatments and
therapeutic modalities, laboratory imaging and diagnostic tests,
and supportive services, including, but not limited to, home
healthcare, hospice, and physical and occupational therapy;

(iv) receiving and interpreting results of laboratory, imaging, and/or
diagnostic studies;

(v) working with clients to promote their understanding of and
compliance with therapeutic regimens;

(vi) providing instruction and counseling to individuals, families, and
groups in the areas of health promotion, disease prevention, and
maintenance, including involving such persons in planning for
their health care; and

(vii) working in collaboration with other health care providers and
agencies to provide and, where appropriate, coordinate services to
individuals and families.

Admin. R. M. 24.159.1406 (2013).

¶24 The Board also grants APRNs prescriptive authority after they meet certain

additional educational requirements, permitting them to “prescribe, procure, administer,

14
and dispense . . . controlled substances pursuant to applicable state and federal laws and

within the APRN’s role and population focus.” Admin. R. M. 24.159.1461(1) (2013);

Admin. R. M. 24.159.1463 (2021). APRNs registered with the DEA may prescribe

potentially dangerous and addictive drugs, and medications that carry far more risk than

the medications used in a medication abortion. The pharmaceuticals typically used for

medication abortion—mifepristone and misoprostol—are as safe as over-the-counter

medications, such as Tylenol. Abortion medications are approved by the Food and Drug

Administration and supported by national medical organizations.

¶25 APRNs in Montana practice autonomously within their scope of practice for which

they are trained and without any legally mandated collaboration with or supervision by a

physician. The relevant statutes and regulations guide APRNs in the exercise of their

professional judgment. Moreover, the Board’s approach to APRN regulation is consistent

with other medical provider regulation designed to protect the public health. For example,

physicians follow a similar self-evaluation approach for competence. Once licensed by the

State, they must know the limits of their practice and may be subject to discipline if they

provide care beyond their competence. The Montana Board of Medical Examiners does

not maintain a list of procedures that physicians may or may not provide. The State,

through the Board of Medical Examiners, requires physicians to provide care consistent

with their education and training and based on guidance from their professional

organizations. Physicians who deviate from these rules are subject to discipline. Similarly,

APRNs who do not provide care consistent with their education, training, and guidance

15
from professional organizations may be disciplined by the Board. See § 37-8-202(1)(g),

MCA (“The board shall . . . cause the prosecution of persons violating this chapter.”).

¶26 In July 2019, the Board addressed the issue of abortion and APRN scope of practice.

The specific question before the Board was: “Can Certified Nurse Practitioners certified in

Family Practice (APRN-FNP) or Certified Nurse Midwives (APRN-CNM) provide

medication and aspiration abortion services without specific authorization from the

Board?” The Board unanimously concluded it would “leave the rules and statutes as they

are because they adequately cover this issue.” Thus, the Board determined “specific

authorization” was not necessary to permit APRNs to provide abortion care. Importantly,

the Board explained “[m]edication and aspiration abortion procedures are not significantly

different than the procedures, medications and surgeries that nurse practitioners currently

perform without significant issues.”

¶27 The Board recognizes numerous national professional organizations that outline the

scope and standards of practice for APRNs. Like the Board, none of these organizations

provide a comprehensive or exhaustive list of health care services that APRNs are

specifically authorized to provide. The American Association of Nurse Practitioners

(AANP) and the ACNM define APRNs’ scope of practice broadly, leaving APRNs with

significant latitude to provide a range of services. The AANP, for example, instructs that

“[a]s licensed, independent practitioners, . . . [APRNs] provide a wide range of health care

services including the diagnosis and management of acute, chronic, and complex health

problems, health promotion, disease prevention, health education, and counseling to

individuals, families, groups and communities.”
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¶28 The ACNM broadly defines the scope of practice for CNMs as “encompass[ing] the

independent provision of care during pregnancy, childbirth, and the postpartum period;

sexual and reproductive health; gynecologic health; and family planning services,

including preconception care.” In 2019, the ACNM affirmed that “[m]anual vacuum

aspiration abortion and medication abortion may be safely provided by trained advance

practice clinicians [], including midwives.”

¶29 Finally, as noted, similar skills are required for both APRN-provided services and

abortion care. APRNs insert and remove intrauterine contraceptive devices (IUDs)6 and

other contraceptive implants and perform endometrial biopsies. APRNs may perform early

prenatal ultrasounds, miscarriage management, and IUD insertions, and prescribe

medications, among many other services that are related to and comparable to abortion

care. APRNs also provide health care services that are more complex than early abortion

care, including, but not limited to, neuraxial anesthesia, central line insertions, arterial line

insertions, intubations, chest tube insertions, surgical first assistance, colonoscopies, and

endoscopies. Managing miscarriages—which the State does not dispute is within APRNs’

scope of practice—entails essentially the identical procedure and protocol as early abortion

care. For instance, APRNs treating miscarriages may perform an aspiration procedure

where the cervix is dilated, and a curette is used to remove the uterine contents through

suction. This is essentially the same procedure required for an early-term abortion.

Dr. Aultman, the State’s expert, testified that managing the complications involved in

6
Like aspiration abortion, inserting and removing an IUD involves placing an instrument through
the cervix. Difficult removals may necessitate cervical dilation.
17
miscarriage and stillbirth—which APRNs already do in Montana—is “extremely similar

to management of abortion complications.” Dr. Mulcaire-Jones, the State’s other expert,

likewise elaborated that the “techniques and protocols” for “tak[ing] care of women who

have fetal demise or miscarriage or a stillbirth” are “identical” to those used for abortion

care.7

¶30 Accordingly, the uncontroverted evidence established that APRN-FNPs and

APRN-CNMs provide a broad range of health care within their scope of practice that is

identical to, or significantly more complex, than early abortion care. In particular, there is

no dispute or genuine issue of fact that miscarriage management is within the scope of

practice of APRN-FNPs and APRN-CNMs, and that the protocol, procedures, and risk of

harm from complications for miscarriage management are identical to early abortion care.

¶31 The parties have both submitted that there is no dispute of material fact.

STANDARDS OF REVIEW

¶32 We review de novo a district court’s grant or denial of summary judgment, applying

the same criteria of M. R. Civ. P. 56 as a district court. Pilgeram v. GreenPoint Mortg.

Funding, Inc., 2013 MT 354, ¶ 9, 373 Mont. 1, 313 P.3d 839 (citation omitted). A motion

for summary judgment must be granted when “there is no genuine issue as to any material

fact and . . . the movant is entitled to judgment as a matter of law.” M. R. Civ. P. 56(c)(3).

“When there are cross-motions for summary judgment, a district court must evaluate each

party’s motion on its own merits.” Kilby Butte Colony, Inc. v. State Farm Mut. Auto. Ins.

7
Miscarriages can be managed with medication, specifically misoprostol, one of the medications
used in medication abortion.
18
Co., 2017 MT 246, ¶ 7, 389 Mont. 48, 403 P.3d 664. We review a district court’s

conclusions of law to determine whether they are correct and its findings of fact to

determine whether they are clearly erroneous. Pilgeram, ¶ 9 (citation omitted).

¶33 The Court’s review of constitutional questions is plenary. Williams v. Bd. of County

Comm’rs, 2013 MT 243, ¶ 23, 371 Mont. 356, 308 P.3d 88. “A district court’s resolution

of an issue involving a question of constitutional law is a conclusion of law which we

review to determine whether the conclusion is correct.” Bryan v. Yellowstone County

Elementary Sch. Dist. No. 2, 2002 MT 264, ¶ 16, 312 Mont. 257, 60 P.3d 381.

¶34 Statutes are presumed to be constitutional, and we regard that presumed

constitutionality as a high burden to overcome. Hernandez v. Bd. of County Comm’rs,

2008 MT 251, ¶ 15, 345 Mont. 1, 189 P.3d 638 (citing Montanans for the Responsible Use

of the Sch. Tr. v. State ex rel. Bd. of Land Comm’rs, 1999 MT 263, ¶ 11, 296 Mont. 402,

989 P.2d 800). The challenging party bears the burden of proving the statute is

unconstitutional. Molnar v. Fox, 2013 MT 132, ¶ 49, 370 Mont. 238, 301 P.3d 824.

Separately, we have also recognized that “legislation infringing the exercise of the right of

privacy must be reviewed under a strict-scrutiny analysis,” which necessarily shifts the

burden to the State to demonstrate that the legislation is “justified by a compelling state

interest and [is] narrowly tailored to effectuate only that compelling interest.” Armstrong,

¶ 34. While the analysis of a statute pertaining to fundamental rights will generally require

a strict scrutiny review that ultimately shifts the burden, we still begin our review with the

same principle: statutes are presumed to be constitutional. To do otherwise would infringe

on the principle of separation of powers and the deference we give to the Legislature, as it
19
is the Legislature’s prerogative to legislate under their general police power, and not merely

in those areas we do not consider fundamental.

DISCUSSION

¶35 Independently of the federal constitution, when the right of individual privacy is

implicated, Montana’s Constitution affords significantly broader protection than the

federal constitution. Gryczan v. State, 283 Mont. 433, 448, 942 P.2d 112, 121 (1997);

see also Armstrong, ¶34 (stating that Montanans right to privacy is the “most stringent”

and “exceed[s] even that provided by the federal constitution”). The delegates to

Montana’s 1972 Constitutional Convention viewed the textual inclusion of this right in

Montana’s new constitution as being necessary for the protection of the individual in “an

increasingly complex society . . . [in which] our area of privacy has decreased, decreased,

and decreased.” Montana Constitutional Convention, Verbatim Transcript, March 7, 1972,

Vol. V, p. 1681. Delegate Campbell proclaimed that the “right to be let alone” is “the

most important right of them all.” Montana Constitutional Convention, Verbatim

Transcript, March 7, 1972, Vol. V, p. 1681. We acknowledged the expansiveness of the

right of privacy in Montana’s Constitution in Armstrong:

[I]t is clear from their debates that the delegates intended this right of privacy
to be expansive—that it should encompass more than traditional search and
seizure. 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.

Armstrong, ¶ 33.

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¶36 “Few matters more directly implicate personal autonomy and individual privacy

than medical judgments affecting one’s bodily integrity and health.” Armstrong, ¶ 53. The

express guarantee of privacy in Article II, Section 10, is fundamental:

[U]nder Montana’s Constitution, the right of individual privacy—that is, the
right of personal autonomy or the right to be let alone—is fundamental. It
is, perhaps, one of the most important rights guaranteed to the citizens of this
State, and its separate textual protection in our Constitution reflects
Montanans’ historical abhorrence and distrust of excessive governmental
interference in their personal lives.

Gryczan, 283 Mont. at 455, 942 P.2d at 125. The Montana Constitution “guarantees each

individual the right to make medical judgments affecting her or his bodily integrity and

health in partnership with a chosen health care provider free from government

interference.” Armstrong, ¶ 14. More specifically, Article II, Section 10, “protects a

woman’s right of procreative autonomy . . . [that is] to seek and obtain a specific lawful

medical procedure . . . from a health care provider of her choice.” Armstrong, ¶ 14.

¶37 In Armstrong, a PA challenged the constitutionality of §§ 37-20-103 and 50-20-109

(1995), MCA, which excluded PAs from performing abortions. At that time, the statutes

restricted the provision of abortion to physicians, specifically barring PAs from providing

abortion care. Armstrong, ¶¶ 21, 26. This Court held the statutes were unconstitutional

because they interfered with a woman’s right to obtain an abortion from a qualified health

care provider8 of her choosing. Armstrong, ¶ 75. Decisions about whom to trust with

8
“Health care provider” refers to “any physician, physician-assistant certified, nurse,
nurse-practitioner, or other professional who has been determined by the appropriate medical
examining and licensing authority” to have the requisite training, education, or experience to
provide the care the patient seeks. Armstrong, ¶ 2 n.1.
21
“intimate invasions of body and psyche,” such as those involved in health care, must be

the individual’s decision, and state regulation must be based on protecting citizens from

actual health risks. Armstrong, ¶¶ 58-59. Limiting access to abortion care by reducing the

number of qualified providers only makes obtaining abortion care “as difficult, as

inconvenient and as costly as possible” under the guise of “protecting women’s health.”

Armstrong, ¶ 65. Armstrong unequivocally established that a woman has a fundamental

right of privacy to seek abortion care from a qualified health care provider of her choosing,

absent clear demonstration by the State of a “medically-acknowledged, [bona fide] health

risk.” Armstrong, ¶ 62.

¶38 However, every restriction on medical care does not necessarily impermissibly

infringe on the right to privacy. The State possesses a general and inherent “police power

by which it can regulate for the health and safety of its citizens.” Wiser v. State, 2006 MT

20, ¶ 19, 331 Mont. 28, 129 P.3d 133. To protect “the health of its citizens,” the State may

regulate and license health care professionals. Wiser, ¶ 18. Thus, Montanans do not

possess an unqualified right to obtain medical care free of State regulation. The Montana

Constitution does not encompass a “fundamental right to seek medical care from

unlicensed professionals.” Wiser, ¶ 18. We have explained that the State and its licensing

boards determine who is qualified to provide medical services. Wiser, ¶ 17. Thus, the right

of privacy to make health care choices guarantees access to a health care provider who has

been determined “competent” by the medical community and “licensed” to perform the

service. Wiser, ¶ 16 (citing Armstrong, ¶ 62). “[T]he practice of medicine is a privilege,

not a right, in Montana and . . . it is generally subject to legislative oversight in order to
22
protect the health, safety, and welfare of the people of Montana.” Armstrong, ¶ 79 (Gray,

J., specially concurring).

¶39 We similarly recognized a circumscription of the right of privacy in Montana

Cannabis Industry Ass’n v. State, 2012 MT 201, 366 Mont. 224, 286 P.3d 1161 (MCIA).

MCIA addressed the Montana Marijuana Act, which limited Montanans’ right to access

medical marijuana. MCIA, ¶ 4. We explained that the right of privacy is implicated when

a statute infringes upon a person’s ability to obtain or reject medical treatment that is lawful,

but that it does not follow that the right is implicated when a statute regulates a particular

medication. MCIA, ¶ 27. The fundamental right of privacy does not include an

“affirmative right of access to medical marijuana” because the right of privacy does not

extend to give a patient the right to use any particular medication. MCIA, ¶ 32.

¶40 We have recognized “the State of Montana has a police power by which it can

regulate for the health and safety of its citizens.” Wiser, ¶ 19. The Legislature retains its

police power when it creates agencies and boards and delegates power to them. When the

Legislature creates these boards, it implicitly, and sometimes explicitly, recognizes the

expertise that those appointed to positions on the board provide. As can be seen through

history and practice, the Legislature often leaves board decisions untouched, respecting the

expertise of the individuals on the board and affording the board deference to operate, so

long as it operates within its statutory parameters—parameters set by the Legislature and

subject to the Legislature’s alterations. In Wiser, the Legislature dissolved the Board of

Denturitry and placed the regulation of denturists under the Board of Dentistry. Wiser, ¶ 8.

While focusing on the denturists’ federal and state constitutional arguments, including
23
privacy, we implicitly recognized the inherent power retained by the Legislature over the

boards it statutorily creates. Wiser, ¶ 24. Thus, the Legislature does not lose its authority

to legislate in areas that have been delegated to the oversight of a board. The Legislature’s

power to protect the “health, safety, and welfare of the people of Montana” remains.

Armstrong, ¶ 79 (Gray, J., specially concurring).

¶41 The District Court began its analysis by essentially holding the Legislature had no

proper role in the discussion about the issue before us, stating the Legislature has no right

to “substitute[] its own judgment on the medical qualifications of APRNs in place of the

Board’s general authority on the issue” absent an articulated “clear reason determining the

Board is incompetent to regulate its licensees regarding the practice of abortion.” In doing

so, the District Court determined that the Legislature has no place at the table. This was

incorrect. The State has a police power by which it can regulate for the health and safety

of its citizens. The question is not whether the Legislature has authority to act, but rather

whether the Legislature’s action is constitutional.

¶42 Here, the State argues there are no fundamental rights at issue, and specifically, the

right of privacy is not implicated because the decision to seek and obtain an abortion is not

at issue. The State argues § 50-20-109(1)(a), MCA, merely regulates who can provide a

surgical procedure that has “known risks to human health and wellbeing.” The State

maintains that because the statute does not implicate the decision to seek and obtain an

abortion but, instead, implicates the State’s authority to protect public health and safety,

rational basis review should be applied to assess its constitutionality. We easily conclude

that ship has already sailed.
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¶43 The restriction in § 50-20-109(1)(a), MCA, is virtually identical to the restriction

in Armstrong which also precluded qualified health care providers from performing

abortion care. In Armstrong and Weems I, this Court recognized that the Montana

Constitution guarantees a fundamental right to access abortion care from a qualified health

care provider of a woman’s choice. Armstrong, ¶ 75; Weems I, ¶ 26. Weems claims the

restriction in § 50-20-109(1)(a), MCA, interferes with that right by making it a crime for

qualified clinicians who are not physicians or PAs to provide abortion care. We now have

the benefit of a fully developed record and the District Court’s conclusion that

§ 50-20-109(1)(a), MCA, interferes with a woman’s right of privacy and her decision to

obtain lawful healthcare from a qualified provider of her choice. The District Court held

that § 50-20-109(1)(a), MCA, implicates a patient’s fundamental right of privacy because

it removes qualified APRNs from the pool of health care providers from which women

may choose to obtain lawful medical procedures, thus implicating a patient’s fundamental

right of privacy. Accordingly, we review § 50-20-109(1)(a), MCA, under strict scrutiny.

¶44 Since § 50-20-109(1)(a), MCA, interferes with a fundamental right, the State has

the burden to demonstrate a compelling interest justifying the intrusion and the intrusion is

narrowly tailored to advance only that interest. Armstrong, ¶ 34. To rise to the level of

“compelling,” a state interest must be “at a minimum, some interest of the highest order

and . . . not otherwise served.” Armstrong, ¶ 41 n.6 (internal quotation marks omitted;

citation omitted). A narrowly tailored law is “the least onerous path that can be taken to

achieve the state objective.” Wadsworth v. State, 275 Mont. 287, 302, 911 P.2d 1165, 1174

(1996).
25
¶45 Here, within the framework of Armstrong, the State’s burden is to show there is a

“medically-acknowledged, [bona fide] health risk, clearly and convincingly

demonstrated,” justifying interference with a woman’s access to abortion and her choice

of a health care provider. Armstrong, ¶ 62. To determine whether the State has met its

burden, we analyze the record and consider whether the State provided a meritorious

argument that when APRNS perform abortions, there are exacerbated health risks not

present when physicians or PAs perform abortions.

¶46 The record is devoid of any evidence that APRNs providing abortion care present a

medically acknowledged, bona fide health risk to Montana women. The State’s argument

is detached from the overwhelming evidence presented to the District Court that abortion

care is one of the safest forms of medical care in this country and the world, and that

APRNs are qualified providers. The State’s reasoning rests on a faulty foundation: it puts

aspiration abortions in the category of “surgery” because “instruments” are used to remove

“human tissue”; because an aspiration abortion is “surgery” it has all the attendant risks of

surgery—hemorrhaging, infection, post-operative care, and monitoring; because abortion

is “surgery” it should not be treated any differently than other elective surgery, which

occurs in a clinic or hospital; because it is surgery it is not safe unless done where

emergency backup is in place and where clinicians who can perform “surgery” are present.

This reasoning would exclude APRNs from performing abortion care because, as the State

posits, post-abortion care might be beyond what APRNs are capable of handling or

authorized to do. Finally, at oral argument, the State represented that APRNs also should

not perform medication abortions because complications from a medication abortion could
26
lead to surgery. Therefore, according to the State, APRNs would not be authorized to

dispense mifepristone or misoprostol.

¶47 It is an undisputed fact in these proceedings, accepted by all the parties, that the

protocols, procedures, and the attendant complications of abortion care are identical to

miscarriage care. The State argues that, while APRNs may be able to perform the abortion

procedure, they are not capable or qualified to handle the “unacceptable” risk of

complications arising from an abortion. However, the same risk of complications exists in

miscarriage care, which the State has not argued presents a threat to public health and safety

when performed by APRNs. Thus, the State’s argument logically must fail. The State’s

ability to restrict the pool of health care providers and, concomitantly, a woman’s choice

of who provides her health care, must be tethered to a medically acknowledged, bona fide

health risk associated with those providers. Based on a straightforward, uncomplicated

review of the evidentiary record, there is no medically recognized bona fide health risk for

APRNs to perform abortion care, much less one that is clearly and convincingly

demonstrated.

¶48 The overwhelming evidence amassed in the District Court record established that

abortion care is one of the safest procedures in this country and the world. Complication

rates from abortion are similar to or lower than other outpatient procedures. When

complications do occur, they are usually minor and easily treatable—normally at home or

in an outpatient setting. Abortions remain one of the safest procedures when performed

collectively by health care providers, including APRNs. Other APRN-provided services

require similar skills to those required in early abortion care, including the insertion and
27
removal of IUDs and other contraceptive implants, and performing endometrial biopsies.

The Board agreed, noting that medication and aspiration abortion care “are not significantly

different than the procedures, medications and surgeries that nurse practitioners currently

perform without significant issues.” National and international studies establish there is

no difference in the prevalence of complications when an APRN performs an abortion and

when a physician or PA performs an abortion. The record shows that the health care

community and the national professional nursing organizations recognize APRNs as

competent and safe abortion care providers.

¶49 The record also demonstrates that APRNs already competently provide health

services that are more complex than early abortion care. For instance, APRNs currently

provide health care services such as neuraxial anesthesia, central line insertions, and

intubations. Additionally, ARPNs can prescribe dangerous and addictive medications that

carry more risks than mifepristone and misoprostol, which are as safe as other

over-the-counter medications.

¶50 Moreover, limiting the pool of qualified abortion providers would significantly

interfere with a patient’s right of privacy because of significant cost and travel required to

access a provider. The scarcity of providers in Montana increases the likelihood patients

will experience delays accessing care, forcing them to remain pregnant until they can seek

a later-term abortion, which can result in comparatively higher risk, greater expenses, and

even ineligibility for medication abortion as pregnancy advances. Access to abortion care

in Montana is the difference between obtaining quality care or no care at all, especially for

patients who might otherwise “time out” of early abortion care because their pregnancy
28
extended past a certain gestational age, which can result in safety repercussions for the

patient.

CONCLUSION

¶51 Article II, Section 10, of the Montana Constitution guarantees a woman a

fundamental right of privacy to seek abortion care from a qualified health care provider of

her choosing, absent a clear demonstration of a medically acknowledged, bona fide health

risk. The State has failed to meet its burden of demonstrating that APRN-FNPs and

APRN-CNMs providing abortion care present a medically acknowledged, bona fide health

risk. The State has failed to present any evidence that demonstrates abortions performed

by APRNs include more risk than those provided by physicians or PAs. The State has failed

to identify any reason why APRNs should be restricted from providing abortions, and thus

failed to articulate a medically acknowledged, bona fide health risk. The District Court

correctly determined that no genuine dispute of material fact exists regarding the safety

and efficacy of APRNs providing early abortion care. Accordingly, § 50-20-109(1)(a),

MCA, is an unconstitutional interference with a woman’s right of privacy to seek medical

care from a qualified provider of her choice.

¶52 The District Court’s Order on Motions for Summary Judgment granting judgment

to Weems is affirmed.

/S/ LAURIE McKINNON

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We Concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR
/S/ JIM RICE

30