Planned Parenthood of Mont. v. State, DA 21-0521

Docket NºDA 21-0521
Citation2022 MT 157
Case DateAugust 08, 2022
CourtUnited States State Supreme Court of Montana

2022 MT 157

PLANNED PARENTHOOD OF MONTANA, and JOEY BANKS, M.D., on behalf of themselves and their patients, Plaintiffs and Appellees,

STATE OF MONTANA, by and through AUSTIN KNUDSEN, in his official capacity as Attorney General, Defendant and Appellant.

No. DA 21-0521

Supreme Court of Montana

August 8, 2022

Submitted on Briefs: May 11, 2022

APPEAL FROM: District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 21-0999 Honorable Michael G. Moses, Presiding Judge

For Appellant:

Austin Knudsen, Montana Attorney General, David M.S. Dewhirst, Solicitor General, Kathleen L. Smithgall, Brent Mead, Assistant Solicitors General, Helena, Montana

Kevin H. Theriot, Denise M. Harle, Alliance Defending Freedom, Scottsdale, Arizona

For Appellees:

Raph Graybill, Graybill Law Firm, PC, Great Falls, Montana

Gene R. Jarussi, Attorney at Law, Billings, Montana

Alan E. Schoenfeld, Michelle Nicole Diamond, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York

Kimberly Parker, Nicole Rabner, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, District of Columbia


Hana Bajramovic, Planned Parenthood Federation of America, Inc., New York, New York

Alice Clapman, Planned Parenthood Federation of America, Inc., Washington, District of Columbia

For Amici ACLU of Montana, et al.:

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

Amy Myrick, Alexander Wilson, Astrid Ackerman, Center for Reproductive Rights, New York, New York

For Amici Montana Constitutional Convention Delegates and Research Staff:

Emily J. Cross, Kyle Anne Gray, Brianne C. McClafferty, Holland &Hart LLP, Billings, Montana

For Amici The Asian Pacific Institute on Gender-Based Violence, et al.:

Matthew Gordon, Perkins Coie LLP, Seattle, Washington

For Amici American College of Obstetricians and Gynecologists, et al.:

Lindsay C. Beck, Beck, Amsden &Stalpes pllc, Bozeman, Montana




¶1 The State appeals the District Court's grant of a preliminary injunction temporarily enjoining the implementation of three laws the 2021 Legislature enacted that regulate or restrict abortion services: House Bills (HB) 136, 171, and 140 (collectively, "the challenged laws"). Restated, the issues are:

1. Did the District Court manifestly abuse its discretion in granting a preliminary injunction when it determined that the Plaintiffs made a prima facie showing that the challenged laws violate their rights under the Montana Constitution?
2. Did the District Court manifestly abuse its discretion in granting a preliminary injunction when it determined that the Plaintiffs would suffer irreparable injury if the challenged laws took effect?

Applying our settled standards for review of preliminary injunctions, we affirm.


¶2 During the 2021 session, the Montana Legislature passed HB 136, HB 171, HB 140, and HB 229. 2021 Mont. Laws 981-94, 1309-10. The Governor signed these bills into law in April 2021. In August 2021, the Plaintiffs, providers of abortion services (Providers), filed a complaint for declaratory and injunctive relief challenging all four laws.[1] They sought a preliminary injunction on the first three: HBs 136, 171, and 140.

¶3 HB 136 bans abortions beginning at twenty weeks from the patient's last menstrual period (LMP). HB 171 eliminates tele-health services for medication abortions and adds a variety of new credentialing, informed consent, and reporting requirements for abortion


providers. HB 140 mandates that an abortion provider offer patients the opportunity to view an ultrasound and listen to the fetal heart tone. The challenged laws also provide for various criminal penalties and for civil remedies.

¶4 Providers challenged these laws as violating several rights guaranteed by the Montana Constitution, including the rights to privacy and equal protection. The State filed a brief opposing the preliminary injunction and submitted supporting declarations. In October 2021, following a show cause hearing and its consideration of each party's affidavits and declarations, the court granted a preliminary injunction, and this appeal followed.


¶5 We review the grant of a preliminary injunction to determine whether the district court manifestly abused its discretion. Porter v. K &S P'ship, 192 Mont. 175, 181, 627 P.2d 836, 839 (1981). A court abuses its discretion when it acts "arbitrarily, without employment of conscientious judgment, or exceeds the bounds of reason resulting in substantial injustice." In re Marriage of Elder &Mahlum, 2020 MT 91, ¶ 10, 399 Mont. 532, 462 P.3d 209 (citation omitted). An abuse of discretion rises to the level of "manifest" when it is "obvious, evident, or unmistakable." Driscoll v. Stapleton, 2020 MT 247, ¶ 12, 401 Mont. 405, 473 P.3d 386 (citations omitted). If the decision was based on legal conclusions, however, we review those conclusions de novo. Driscoll, ¶ 12. "[I]n considering whether to issue a preliminary injunction, neither the district court nor this Court will determine the underlying merits of the case giving rise to the preliminary injunction." Driscoll, ¶ 12 (citations and alterations omitted).



¶6 A court may grant an injunction order on any one of five enumerated grounds, including as pertinent here:

(1) when it appears that the applicant is entitled to the relief demanded and the relief or any part of the relief consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually; [or]
(2) when it appears that the commission or continuance of some act during the litigation would produce a great or irreparable injury to the applicant[.]

Section 27-19-201(1)-(2), MCA. The subsections of § 27-19-201, MCA, are written disjunctively; therefore, "only one subsection need be met for an injunction to issue." BAM Ventures, LLC v. Schifferman, 2019 MT 67, ¶ 14, 395 Mont. 160, 437 P.3d 142 (citations omitted). To prevail under subsection (1), "an applicant must show that [the applicant] has a legitimate cause of action and that [the applicant] is likely to succeed on the merits of that claim . . . [and] that an injunction is an appropriate remedy." Sandrock v. DeTienne, 2010 MT 237, ¶ 16, 358 Mont. 175, 243 P.3d 1123 (citations omitted). To establish the first part of that test (a legitimate cause of action that is likely to succeed on the merits), the applicant must make at least "a prima facie showing" of entitlement to relief. BAM Ventures, ¶ 18; Sandrock, ¶ 16. But the applicant need not establish "evidence . . . sufficient to prevail at trial." Driscoll, ¶ 16. The second part of the test (that an injunction is an appropriate remedy) requires "the prevention of some degree of harm or injury." BAM Ventures, ¶ 16. Although only subsection (2) explicitly demands the appearance of "great or irreparable injury," we have stated that a "lesser degree of harm


[is] implied with the other subsections of § 27-19-201, MCA," as well. BAM Ventures, ¶ 16. This determination must be guided ultimately by the purpose of a preliminary injunction, which is "to maintain the status quo pending trial." Sandrock, ¶ 16. We have defined "status quo" as "the last actual, peaceable, noncontested condition which preceded the pending controversy." Sandrock, ¶ 16 (citations omitted). "For the purposes of a preliminary injunction, the loss of a constitutional right constitutes an irreparable injury." Driscoll, ¶ 15; Mont. Cannabis Indus. Ass'n v. State, 2012 MT 201, ¶ 15, 366 Mont. 224, 286 P.3d 1161.

¶7 The District Court granted Providers' preliminary injunction motion on two alternate grounds. It found that Providers satisfied the requirements of subsection (1) because they made a prima facie case that the challenged laws deprived them of a constitutional right. It held also that Providers were entitled to injunctive relief under subsection (2) because the challenged laws, if not enjoined during the litigation, would cause Providers and their patients great or irreparable harm.

¶8 1. Did the District Court manifestly abuse its discretion in granting a preliminary injunction when it determined that the Plaintiffs made a prima facie showing that the challenged laws violate their rights under the Montana Constitution?

¶9 The State argues that the District Court's application of strict scrutiny was erroneous. It contends further that the court erred by applying an incorrect preliminary injunction standard because the standard should be "likelihood of success on the merits," not "prima facie." The State also claims that the District Court failed to consider and assess the State's rebuttal of Providers' prima facie case.


The Challenged Laws and the District Court's Rulings

HB 136

¶10 HB 136, titled "Montana Pain-Capable Unborn Child Protection Act," bans abortions beginning at twenty weeks LMP. The asserted compelling state interest is "protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain." [2] HB 136, 67th Leg., Reg. Sess. (Mont. 2021). HB 136 prohibits abortions of "unborn child[ren] capable of feeling pain unless it is necessary to prevent a serious health risk to the unborn child's mother." Mont. HB 136, § 3(1)(a). HB 136 provides for civil damages and subjects abortion providers who violate Section 3 to "a felony punishable in accordance with" § 50-20-112, MCA. Mont. HB 136, §§ 4-5.

¶11 Providers argued that HB 136's ban on abortions for pregnancies within twenty weeks LMP violates their patients' right to privacy, under Article II, Section 10; right to individual dignity, under Article II, Section 4; right to seek safety, health, and happiness in all lawful ways, under Article II,...

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