Submitted on Briefs: January 30, 2019
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
For
Appellants: Timothy C. Fox, Montana Attorney General, Rob
Cameron, Deputy Attorney General, Patrick M. Risken,
Assistant Attorney General, Helena, Montana Travis R. Ahner,
Flathead County Attorney, Kalispell, Montana
For
Appellees: Alex Rate, Elizabeth K. Ehret, ACLU of Montana,
Missoula, Montana Hillary Schneller, Hailey Flynn, Center for
Reproductive Rights, New York, New York
For
Amicus Montana Public Health Association: Simona G. Strauss,
Simpson Thacher and Bartlett LLP, Palo Alto, California
Lindsay Beck, Beck, Amsden and Stalpes, PLLC, Bozeman,
Montana
BETH
BAKER JUSTICE.
¶1
Twenty years ago, this Court held that a statute preventing a
woman from obtaining a lawful medical procedure-a
pre-viability abortion-from a health care provider of her
choosing unconstitutionally infringed her right to individual
privacy under Montana's Constitution. Armstrong v.
State, 1999 MT 261, ¶¶ 2, 75, 296 Mont. 361,
989 P.2d 364. We used the term "health care
provider"
to refer 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 be competent by reason of education, training or
experience, to perform the particular medical procedure or
category of procedures at issue or to provide the particular
medical service or category of services which the patient
seeks from the health care provider.
Armstrong, ¶ 2, n.1. Six years later, the
Montana Legislature amended § 50-20-109(1)(a), MCA, to
restrict the performance of pre-viability abortions to
licensed physicians and physician assistants-certified. 2005
Mont. Laws, ch. 519, § 27. Plaintiffs, a Certified Nurse
Practitioner (CNP) and Certified Nurse Midwife (CNM), filed
this action in 2018, seeking a declaratory judgment that the
statute violates Montana's constitutional right of
privacy, equal protection, and dignity. They moved for a
preliminary injunction. Both parties submitted affidavits,
and neither requested an evidentiary hearing. After
considering the affidavits and legal arguments presented by
all parties, the District Court granted that relief on April
4, 2018. Pursuant to M. R. App. P. 6(3)(e), the State appeals
on the alternative grounds that the District Court:
1. lacked jurisdiction because the Plaintiffs do not have
standing to seek relief on their claims; or
2. improperly issued an advisory opinion on claims that
were not ripe for a preliminary injunction, did not establish
irreparable harm, and did not seek to preserve the status
quo.
We
affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
¶2
Plaintiff Jane Doe is a CNM and women's health nurse
practitioner who practices midwifery in Montana and is
proceeding in this matter under a pseudonym by leave of
court. Plaintiff Helen Weems is a CNP in Montana who has been
board certified in family practice by the American Nurses
Credentialing Center since 1999 and re-certified every five
years since.[2] Weems co-owns a primary care clinic in
Whitefish that offers comprehensive health services for men
and women, including reproductive health care services. The
other owner is Susan Cahill, a licensed physician's
assistant (PA), who performs early-term abortions as part of
her practice. Both Plaintiffs allege that the performance of
early-term abortions[3] is within their scope of practice and
that they could perform such services but for Montana's
statutory restriction.
¶3
In support of their motion for preliminary injunction,
Plaintiffs presented evidence that APRNs routinely perform
procedures within their scope of practice that are similar in
skill to or more complex than early-term abortions and that
carry comparable or greater risk. Plaintiff Weems described
her experience with inserting and removing Intra-Uterine
Devices (IUDs), dilating the cervix, and performing
endometrial biopsy, a procedure that involves inserting
instruments into the uterus to remove a tissue sample from
the uterine lining. She described these procedures as
comparable to those used in an aspiration procedure for
abortion. She also attested that she has prescription
authority from the Board of Nursing and a U.S. Drug
Enforcement Authority (DEA) license, which permits her to
prescribe schedules II through V controlled substances. Weems
attested to her experience, prior to moving to Montana, with
independently dispensing mifepristone and misoprostol for
medication abortions-drugs that are not controlled substances
and that carry less danger than controlled substances.
¶4
Plaintiffs also presented evidence to show that early
abortion safety, efficacy, and patient acceptability is the
same as between physicians and physician assistants, nurse
practitioners, and certified nurse midwives. Finally, they
offered evidence of the limited access to abortion services
in Montana and the impact the restriction on authorized
providers has on the availability of those services.
¶5
The State submitted as its evidence a chart from the Montana
Board of Nursing identifying and listing websites for the
relevant national organizations that set standards for nurse
practitioners and certified nurse midwives. It also submitted
a one-page description of the scope of practice for nurse
practitioners from the American Association of Nurse
Practitioners and a one-page summary definition of midwifery
and scope of practice of certified nurse-midwives and
certified midwives from the American College of Nurse
Midwives. The State pointed out that abortion is not listed
within the scope of practice in these documents, nor is it
included in the Montana Board of Nursing's administrative
rules governing APRN standards and practice.
¶6
The District Court held that Plaintiffs were entitled to a
preliminary injunction under § 27-19-201(2), MCA,
because they had made a showing that enforcement of §
50-20-109(1)(a), MCA, prior to the conclusion of litigation
would cause irreparable injury.
STANDARDS
OF REVIEW
¶7
We review the grant or denial of a preliminary injunction for
manifest abuse of discretion. Davis v. Westphal,
2017 MT 276, ¶ 10, 389 Mont. 251, 405 P.3d 73. A
manifest abuse of discretion is one that is "obvious,
evident, or unmistakable." Davis, ¶ 10
(quoting Shammel v. Canyon Res. Corp., 2003 MT 372,
¶ 12, 319 Mont. 132, 82 P.3d 912). "The grant or
denial of injunctive relief is a matter within the broad
discretion of the district court based on applicable findings
of fact and conclusions of law." Davis, ¶
10 (citing Shammel, ¶ 11; Walker v.
Warner, 228 Mont. 162, 166, 740 P.2d 1147, 1149-50
(1987)). To the extent the ruling is based on legal
conclusions, "we review the district court's
conclusions of law to determine whether the interpretation of
the law is correct." City of Whitefish v. Bd. of
Cty. Comm'rs of Flathead Cty., 2008 MT 436, ¶
7, 347 Mont. 490, 199 P.3d 201. Issues of justiciability,
such as standing and ripeness, also are questions of law, for
which our review is de novo. Reichert v. State, 2012
MT 111, ¶ 20, 365 Mont. 92, 278 P.3d 455.
DISCUSSION
¶8
1. Do Weems and Doe have standing to challenge the
statute?
¶9
Courts have power to resolve actual cases or controversies,
requiring a plaintiff to show, "at an irreducible
minimum," that she "has suffered a past, present,
or threatened injury to a property or civil right, and that
the injury would be alleviated by successfully maintaining
the action." Schoof v. Nesbit, 2014 MT 6,
¶ 15, 373 Mont. 226, 316 P.3d 831 (internal quotations
omitted). "A plaintiff's standing may arise from an
alleged violation of a constitutional or statutory
right." Mitchell v. Glacier County, 2017 MT
258, ¶ 11, 389 Mont. 122, 406 P.3d 427 (citing
Schoof, ¶ 23).
¶10
The State argues that neither Weems nor Doe has standing to
challenge § 50-20-109(1)(a), MCA, because abortion is
outside their scope of practice. Irrespective of the statute,
the State maintains that "[a]s of the issuance" of
the District Court's preliminary injunction order, the
harm posited by the Plaintiffs was conjectural and
hypothetical. The State maintains that the Plaintiffs have
not presented an actual case or ...