Montana justices weigh if some nurses can provide abortions

HELENA, Mont. (AP) — Advanced practice registered nurses in Montana should be allowed to provide abortions based on a state Supreme Court ruling that guarantees residents the right to get a legal abortion from a health care provider of the patient’s choice, an attorney for the Center for Reproductive Rights argued Wednesday.

The Montana Supreme Court heard arguments about whether the state was wrong in 2005 to just add physician assistants to the list of potential providers, and not include advanced practice registered nurses, which are nurses that have obtained at least a master’s degree and are trained and certified to diagnose and manage patient problems and prescribe medications.

Brent Mead, assistant solicitor general arguing for the state, countered that the case should not hinge on the constitutional right of a woman to obtain an abortion, just the law that regulates who is qualified to provide the service.

“The state shouldn’t have to lower its standards to have more providers,” he said.

Hillary Schneller, an attorney with the Center for Reproductive Rights, argued the state can’t prove that its restrictions make abortions any safer. The advanced practice nurse who brought the case has been providing abortion care for four years under an injunction, the center agues, and the law arbitrarily excludes a group of otherwise qualified health care providers.

Chief Justice Mike McGrath said the court would rule at a later date.

Several states allow advanced practice registered nurses to perform medication or aspiration abortions, including California, Colorado, Hawaii, Maine, Massachusetts, New Hampshire, Virginia, Vermont and West Virginia.

In Montana, the issue of abortion providers dates back to the mid-1990s, when the legislature passed a bill to specifically disallow physician assistants from providing abortions.

A challenge to that law resulted in the Supreme Court’s 1999 ruling that found that it infringed on a woman’s constitutional right to privacy to obtain a legal medical procedure — in that case an abortion — from a health care provider of her choosing.

In 2005, the Legislature updated laws pertaining to physician assistants and added providing abortions to their scope of practice at the recommendations of several medical organizations. Physician assistants must be supervised by a physician.

Susan Weems, an advanced practice registered nurses, and an unidentified nurse midwife challenged the law in 2018, arguing that master’s degree-level nurses could also be qualified to provide abortion services.

A state judge temporarily allowed Weems and the nurse midwife to provide abortion services, provided they had proper training, while the case was decided. A split Montana Supreme Court upheld that temporary ruling.

Weems started providing abortion services at a clinic in Whitefish in early 2018. The nurse midwife no longer lives in Montana, court records said.

In February, District Court Judge Mike Menahan declared the law unconstitutional. He said certified nurse practitioners and certified nurse midwives who have the proper training can perform pre-viability abortions within their scope of practice. He noted the Montana Board of Nursing said as much.

Mead countered that the state legislature has not authorized the Board of Nursing to expand the scope of practice of an advanced practice nurse.

In January, Attorney General Austin Knudsen asked the Montana Supreme Court to overturn its 1999 ruling guaranteeing a right to abortion access. Planned Parenthood is using that precedent to challenge laws restricting abortions that were passed by the 2021 Legislature, including one that would ban abortions after 20 weeks of gestation.

A state judge has granted an injunction against enforcing the 2021 laws while the case plays out. The state Supreme Court upheld that temporary ruling in August. The justices declined to consider Knudsen’s request to overturn the 1999 ruling while they were just considering the injunction.