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Montana Judge issues TRO against law protecting living unborn babies from dismemberment abortion

by | May 19, 2023

By Dave Andrusko

On Thursday, Judge Mike Menahan, a nemesis to all pro-life legislation, accepted Planned Parenthood’s contention that House Bill 721—which protects unborn children from dying by dismemberment abortions— means PPFA will suffer “immediate and irreparable harm” because the law would be immediately in effect. He issued a temporary restraining order.

In signing the bill into law, pro-life Gov. Greg Gianforte said “Dismemberment abortion for nontherapeutic or elective reasons is a barbaric practice, dangerous for the mother, and demeaning to the medical profession.” He added, “House Bill 721 makes clear that it has no place in Montana.”

In his order Judge Menahan  indicated there is plenty of room for tearing apart living unborn babies.

“Whereas plaintiffs and their patients face immediate, irreparable harm, defendants will not be harmed by the issuance of a temporary restraining order that preserves the status quo,” he wrote. The Lewis and Clark County District Court Judge added, “Finally, the public interest weighs in favor of preserving the status quo and in ensuring access to constitutionally protected health care services pending adjudication of a preliminary injunction.”

A hearing is set for May 23.

The governor’s office said it strongly supported the law.

“The fact that the bill hadn’t even come to the governor’s desk for his review and groups like Planned Parenthood we’re already running to court tells Montanans everything they need to know about these far-left, pro-abortion groups and their extreme tactics,” spokesperson Kaitlin Price wrote in an email.

Over the course of the waning days of the legislative session, the governor signed a flurry of what he described as “pro-family, pro-life bills that protect the lives of unborn babies in Montana.”

For instance, on May 16, Gov. Gianforte signed HB 575 which Judge Menahan also blocked. 

The new law “would prohibit the abortion of viable fetuses, a point the bill sets at 24 weeks’ gestation,” Sam Wilson reported. The law “would have required healthcare providers to perform an ultrasound on a woman who seeks an abortion, and also requires written documentation to be kept on file that documents that the fetus is not viable,” according to Darrell Ehrlich.

In issuing a brief three page order, Judge Menahan said the bill “impermissibly infringes on Montanans’ constitutional right to a pre-viability abortion both by requiring all patients to undergo an ultrasound before receiving an abortion and by suggesting advance practice registered nurses cannot perform abortions.”

Judge Menahan will hear arguments for a preliminary injunction on May 12.

The Associate Press’s Amy Beth Hanson wrote

The new law being challenged also includes a provision that says: “The right of individual privacy as referenced in the Montana Constitution … does not create, and may not be construed as creating or recognizing, a right to abortion or to governmental funding of abortions,” as part of a Republican effort to require the Montana Supreme Court to reconsider the 1999 Armstrong ruling.

The Montana Supreme Court cited the Armstrong ruling last week in saying advanced practice registered nurses can continue to provide abortion care if they are properly trained.

A press release from the governor’s office added

House Bill 544, sponsored by Rep. Jane Gillette, R-Bozeman, establishes requirements for the Department of Health and Human Services (DPHHS) to ensure abortions covered by Medicaid are medically necessary.

House Bill 862, sponsored by Rep. Mike Hopkins, R-Missoula, brings Montana in line with the federal Hyde Amendment to bar the use of taxpayer dollars to fund abortions except to save the life of a woman or in cases of incest or rape. …

Lastly, the governor signed House Bill 937, sponsored by Rep. Lola Sheldon-Galloway, R-Great Falls, to provide for licensure and appropriate oversight of abortion clinics by DPHHS [Department of Public Health and Human Services].

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