Planned Parenthood v. State

                                                                                          10/09/2024


                                        DA 23-0287
                                                                                      Case Number: DA 23-0287

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        

PLANNED PARENTHOOD OF MONTANA;
ALL FAMILIES HEALTHCARE; BLUE
MOUNTAIN CLINIC; SAMUEL DICKMAN, M.D.,
and HELEN WEEMS, APRN-FNP, on behalf of
themselves and their patients,

           Plaintiffs and Appellees,

     v.

STATE OF MONTANA; MONTANA DEPARTMENT
OF PUBLIC HEALTH AND HUMAN SERVICES; and
CHARLIE BRERETON, in his official capacity as Director
of the Department of Public Health and Human Services,

           Defendants and Appellants.



APPEAL FROM:         District Court of the First Judicial District,
                     In and For the County of Lewis and Clark, Cause No. ADV-2023-299
                     Honorable Mike Menahan, Presiding Judge


COUNSEL OF RECORD:

             For Appellants:

                     Austin Knudsen, Montana Attorney General, Michael D. Russell, Thane
                     Johnson, Alwyn Lansing, Michael Noonan, Assistant Attorneys General,
                     Helena, Montana

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

             For Appellees Planned Parenthood of Montana and Samuel Dickman, MD:

                     Raph Graybill, Graybill Law Firm, Great Falls, Montana

                     Tanis M. Holm, Edmiston & Colton Law Firm, Billings, Montana

                     Peter Im, Planned Parenthood Federation of America, Inc., Washington,
                     District of Columbia
                Dylan Cowit, Planned Parenthood Federation of America, Inc., New York,
                New York

         For Appellees All Families Healthcare, Blue Mountain Clinic, and Helen Weems:

                Alex Rate, ACLU of Montana, Missoula, Montana

                Erin M. Erickson, Bohyer, Erickson, Beaudette, and Tranel P.C., Missoula,
                Montana

                Hillary Schneller, Jen Samantha D. Rasay, Center for Reproductive Rights,
                New York, New York

         For Amicus National Health Law Program:

                Michael G. Black, Attorney at Law, Helena, Montana

         For Amici National Association of Nurse Practitioners in Women’s Health,
         American College of Nurse-Midwives, American Academy of Physician
         Associates, and Association of Physician Associates in Obstetrics and Gynecology:

                Lindsay C. Beck, Attorney at Law, Bozeman, Montana

                Jonathan K. Youngwood, Simpson Thacher & Bartlett LLP, New York,
                New York

                Simona G. Strauss, Simpson Thacher & Bartlett LLP, Palo Alto, California

         For Amici American College of Obstetricians and Gynecologists, Society for
         Maternal-Fetal Medicine, and Society of Family Planning:

                Rylee Sommers-Flanagan, Dimitrios Tsolakidis, Mikaela Koski, Upper
                Seven Law, Helena, Montana

                Nicole A. Saharsky, Mayer Brown LLP, Washington, District of Columbia

         For Amici Legal Voice, Montana Coalition Against Domestic & Sexual Violence,
         Asian Pacific Institute on Gender-Based Violence, Coalition Ending Gender-Based
         Violence, The National Domestic Violence Hotline, and Sexual Violence Law
         Center:

                Matthew Gordon, Perkins Coie LLP, Seattle, Washington


                                             Submitted on Briefs: May 8, 2024
                                                        Decided: October 9, 2024

Filed:

                               ir,-6ta.--if
                __________________________________________
                                  Clerk

                                         2
Justice Ingrid Gustafson delivered the Opinion of the Court.


¶1     Defendants and Appellants the State of Montana, the Montana Department of Public

Health & Human Services (DPHHS), and Charlie Brereton, in his official capacity as

Director of DPHHS (collectively, “the State”) appeal from the preliminary injunction

issued by the First Judicial District Court, Lewis and Clark County. The District Court’s

preliminary injunction enjoined two laws regarding Medicaid funding of abortions—

HB 544 and HB 862—passed by the Montana Legislature during the 2023 session, as well

as a rule adopted by DPHHS amending Admin. R. M. 37.82.102 and 37.86.104 (2023)

(the Rule).

¶2     We address the following restated issue on appeal:

       Whether the District Court manifestly abused its discretion by granting a
       preliminary injunction which enjoined HB 544, HB 862, and the Rule.

¶3     We affirm.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶4     During the 2023 legislative session, the Montana Legislature passed several

abortion-related bills. Among those bills were two related to the Medicaid funding of

abortions in Montana—HB 544 and HB 862. Along with those bills from the Legislature,

DPHHS proposed and adopted the Rule, which also addresses Medicaid funding of

abortions.

¶5     Title XIX of the Social Security Act provides for grants to states for medical

assistance programs, known as Medicaid, with the stated objective of “enabling each State,

as far as practicable under the conditions in such State, to furnish . . . medical assistance
                                             3
on behalf of families with dependent children and of aged, blind, or disabled individuals,

whose income and resources are insufficient to meet the costs of necessary medical

services . . . .” 

. State participation in the Medicaid program is

voluntary. Bailey v. Mont. Dep’t of Pub. Health and Hum. Servs., 

, 

, 

. Montana is a Medicaid participant, and the Montana Medicaid

program is administered by DPHHS. Section 53-6-101(1), MCA. On December 23, 2022,

DPHHS published the proposed amendments of Admin. R. M. 37.82.102 and 37.86.104 in

the Montana Administrative Register (MAR) in MAR Notice No. 37-1024. The Rule

proposed to amend the Administrative Rules governing the Montana Medicaid program to

bar abortion coverage provided by a provider other than a physician, excluding advance

practice clinicians (APCs) such as physician assistants (PAs) and advanced practiced

registered nurses (APRNs); require abortion services to undergo a prior authorization

process; and provides an abortion-specific definition of “medically necessary,” which

allows coverage under Medicaid only when:

      (a) a woman suffers from a physical disorder, physical injury, or physical
      illness, including a life-endangering physical condition caused by or arising
      from the pregnancy itself, that would, as certified by a physician, place the
      woman in danger of death unless an abortion is performed; or

      (b) although it does not place the woman in danger of death unless an
      abortion is performed, a woman suffers from:

             (i) a physical condition that would, as certified by a physician, be
      significantly aggravated by the pregnancy; or
             (ii) a psychological condition that would, as certified by a physician,
      be significantly aggravated by the pregnancy.




                                            4
This abortion-specific definition of the Rule modifies the Admin. R. M. 37.82.102(18)(a)

definition of “[m]edically necessary service” which applies generally to all medical care:

        [A] service or item reimbursable under the Montana Medicaid program, as
        provided in these rules . . . [w]hich is reasonably calculated to prevent,
        diagnose, correct, cure, alleviate, or prevent the worsening of conditions in a
        patient which:

               (i) endanger life;

               (ii) cause suffering or pain;

               (iii) result in illness or infirmity;

               (iv) threaten to cause or aggravate a handicap; or

               (v) cause physical deformity or malfunction.

DPHHS adopted the Rule as proposed on April 28, 2023, with an effective date of May 1,

2023.

¶6      HB 544 is similar to the Rule and bars Medicaid from covering abortion services

provided by a provider other than a physician, excluding APCs; requires abortion services

to undergo a prior authorization process; and provides an abortion-specific definition of

“medically necessary” which allows coverage only when a physician certifies that a patient

“suffers from: (a) a physical condition that would be significantly aggravated by the

pregnancy; or (b) a severe mental illness or intellectual disability that would be

significantly aggravated by the pregnancy.” HB 862, meanwhile, prohibits the use of

public funds for abortion services unless the pregnancy is “the result of an act of rape or

incest” or would place the patient “in danger of death[.]”




                                                 5
¶7     On April 28, 2023, Planned Parenthood of Montana (PPMT); All Families

Healthcare; Blue Mountain Clinic; Dr. Samuel Dickman, M.D., PPMT’s chief medical

officer; and Helen Weems, APRN-FNP, the owner and sole clinician of All Families

Healthcare (collectively “Providers”) filed a Verified Complaint and Petition for

Declaratory Relief, Permanent Injunction, Preliminary Injunction, and Temporary

Restraining Order in the District Court, seeking to enjoin the Rule as unconstitutional. On

May 1, 2023, the District Court issued a TRO enjoining the Rule until such time as the

court could rule on the Providers’ application for a preliminary injunction. The District

Court initially set a hearing for May 12, which was later continued until May 23. The

governor signed HB 544 on May 15 and HB 862 on May 16. Both bills were set to take

effect on July 1, 2023. On May 18, 2023, Providers filed a verified amended complaint,

adding additional claims asserting HB 544 and HB 862 were unconstitutional. That same

day, Providers sought preliminary injunctions against HB 544 and HB 862. Prior to the

May 23, 2023 hearing, the parties filed a joint stipulation regarding the hearing, which had

been combined with a preliminary injunction hearing in Lewis and Clark County District

Court Cause No. ADV-23-231.1           Among other things, the stipulation provided that

testimony taken at the hearing regarding either case could be relied upon by the parties or




1
  This cause dealt with challenges to bills related to a requirement mandating an ultrasound prior
to an abortion and the prohibition and criminalization of the D&E abortion procedure. The District
Court issued a preliminary injunction in Cause No. ADV-23-231, which the State appealed to this
Court. In an opinion issued contemporaneously with the opinion in this case, we upheld the
District Court’s grant of a preliminary injunction. Planned Parenthood of Mont. v. State ex rel.
Knudsen, 

, ___ Mont. ___, ___ P.3d ___.
                                                  6
the District Court in the other case and that the parties, for the purposes of the preliminary

injunction hearing(s) only, stipulated to the qualifications of each other’s medical experts.

¶8     The District Court held the preliminary injunction hearing on May 23, 2023. At the

hearing, the court heard testimony of Dr. Dickman; Helen Weems, APRN-FNP; State

Medicaid Director Michael Randol; Dr. George Mulcaire-Jones; Nicole Smith, the

Executive Director of Blue Mountain Clinic; and Dr. Steven Ralston. At the close of the

hearing, the District Court orally granted the Providers’ request for a preliminary

injunction. The court noted it was considering the recently-revised preliminary injunction

standard, stated its belief that “the purpose of an injunction is to maintain the status quo,”

and granted the requested preliminary injunction of HB 544 and HB 862 after “considering

the testimony, the evidence presented today and the arguments of counsel” presented at the

hearing. The District Court also informed the parties it was “not sure how quickly” it

would be able to issue the written orders for each of the cases covered at the hearing.

¶9     On May 24, 2023, the State filed a notice of appeal to this Court. The District Court

issued its written order granting the Providers’ request for a preliminary injunction on July

11, 2023. Additional facts will be discussed as necessary below.

                                STANDARD OF REVIEW

¶10    “An order granting an injunction is immediately appealable, notwithstanding the

fact that the merits of the controversy remain to be determined.” Sandrock v. DeTienne,

, 

, 

 (citing M. R. App. P. 6(3)(e)). We

review a district court’s grant of a preliminary injunction for a manifest abuse of discretion.

Planned Parenthood of Mont. v. State ex rel. Knudsen, 

, 

,
                                              7


. “An abuse of discretion occurs if a lower court exercises granted discretion

based on a clearly erroneous finding of fact, erroneous conclusion or application of law, or

otherwise arbitrarily, without conscientious judgment or in excess of the bounds of reason,

resulting in substantial injustice.” Meine v. Hren Ranches, Inc., 

, 

, 

. A manifest abuse of discretion is one which is obvious, evident,

or unmistakable. Est. of Mandich v. French, 

, 

, 

. “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 v.

Westphal, 

, 

, 

. To the extent the district

court’s ruling is based on legal conclusions, we review the district court’s conclusions of

law to determine whether the court’s interpretation of the law is correct. Weems v. State

ex rel. Fox, 

, 

, 

 (Weems I) (citation omitted).

                                      DISCUSSION

¶11 Whether the District Court manifestly abused its discretion by granting a
preliminary injunction which enjoined HB 544, HB 862, and the Rule.

¶12    On March 2, 2023, the Legislature amended Montana’s preliminary injunction

statute. 2023 Mont. Laws ch. 43, § 1. While under the previous statute, a party seeking a

preliminary injunction was able to obtain a preliminary injunction “by demonstrating the

criteria of one of its five subsections,” Driscoll v. Stapleton, 

, ¶ 13, 

, 

, a party seeking a preliminary injunction since March 2, 2023, is now

required to meet the amended statute’s four-part conjunctive test:

       A preliminary injunction order or temporary restraining order may be granted
       when the applicant establishes that:
                                             8
              (a) the applicant is likely to succeed on the merits;

              (b) the applicant is likely to suffer irreparable harm in the absence of
              preliminary relief;

              (c) the balance of equities tips in the applicant’s favor; and

              (d) the order is in the public interest.

Section 27-19-201(1), MCA. The Providers sought a preliminary injunction to enjoin HB

544, HB 862, and the Rule after the amendments to the preliminary injunction statute took

effect and the preliminary injunction hearing in this case took place on May 23, 2023.

Accordingly, their request for a preliminary injunction is subject to the four-part

conjunctive test of the amended § 27-19-201(1), MCA.

¶13    The Legislature amended Montana’s preliminary injunction law with the intent to

“mirror the federal preliminary injunction standard[.]”         Section 27-19-201(4), MCA

(2023). The basic federal standard comes from the U.S. Supreme Court’s decision in

Winter v. NRDC, Inc., 

, 

 (2008), and requires that “[a] plaintiff

seeking a preliminary injunction must establish that he is likely to succeed on the merits,

that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

balance of equities tips in his favor, and that an injunction is in the public interest.” Winter,

, 

. The Ninth Circuit, along with several other circuit courts,

has determined the Winter test did not eliminate the discretion of a district court judge to

preserve the status quo with provisional relief until the merits could be sorted out in cases

where clear irreparable injury would otherwise result and at least serious questions going

to the merits are raised. All. for the Wild Rockies v. Cottrell, 

 (9th Cir.
                                               9
2011) (citation omitted). “A preliminary injunction may also be appropriate if a movant

raises ‘serious questions going to the merits’ and the ‘balance of hardships . . . tips sharply

towards’ it, as long as the second and third Winter factors are satisfied.” Disney Enters. v.

VidAngel, Inc., 

 (9th Cir. 2017) (quoting All. for the Wild Rockies, 

).

¶14    In the federal system, appellate review of a district court’s grant of injunctive relief

is meant to be “limited and deferential.” Flathead-Lolo-Bitterroot Citizen Task Force v.

Montana, 

 (9th Cir. 2024). In accordance with this deferential

standard, appellate review of an order granting a preliminary injunction “does not extend

to the underlying merits of the case.” Farris v. Seabrook, 

 (9th Cir. 2012)

(citation omitted). In general, “as long as the district court got the law right, it will not be

reversed simply because the appellate court would have arrived at a different result if it had

applied the law to the facts of the case.” Farris, 

 (cleaned up). While

Justice Rice’s Dissent pays lip service to following federal precedent regarding appellate

review of preliminary injunctions, Dissent, ¶ 60, he neither mentions nor applies any of the

foregoing federal authority and the Dissent’s review of the District Court’s preliminary

injunction is certainly not “limited and deferential.” Flathead-Lolo-Bitterroot Citizen Task

Force, 

. Under our caselaw, this Court’s review of a district court’s grant

of a preliminary injunction is for a manifest abuse of discretion. Planned Parenthood of

Mont., 

. With these standards in mind, we turn to the preliminary

injunctions issued by the District Court in this case.



                                              10
¶15    Beyond the merits of the injunctions, the State takes issue with both the District

Court’s oral ruling and its written order. The State asserts the District Court criticized and

“ignored” the revised preliminary injunction standard when issuing its oral injunction from

the bench and that the court’s written order, issued after the State appealed to this Court,

“failed to properly consider the facts and lacked independent judgment.” The Providers

contend the District Court correctly applied the revised preliminary injunction standard in

its oral ruling, which has, in any event, been superseded by the court’s written order which

“indisputably applied the correct standard.”       The Providers further note the State’s

disagreement with the court’s findings crediting the Providers’ experts over the State’s

does not demonstrate a manifest abuse of discretion, but raise only a factual dispute going

to the ultimate merits of the case and is not proper for resolution on appeal from a

preliminary injunction.

¶16    The Providers correctly note that the District Court’s oral injunction has been

superseded by the written order and is no longer before this Court. We briefly note,

however, that the State is incorrect in claiming that the District Court failed to consider any

of the four factors of the revised preliminary injunction test of § 27-19-201(1), MCA

(2023), when orally granting the Providers’ request for an injunction. While the District

Court expressed its opinion the new standard “puts the [d]istrict [c]ourt judges in a difficult

position” due to having to consider the likelihood of success on the merits when neither

the facts nor the legal arguments have “been fully developed during the course of the

litigation,” it nonetheless expressly noted it was “consider[ing]” the Legislature’s “recent

enactment to mirror” the federal injunction standard. The District Court granted the
                                              11
preliminary injunction after “considering the testimony, the evidence presented today and

the arguments of counsel” presented at the hearing. The State also takes issue with the

District Court’s statement about the importance of maintaining the status quo when it orally

granted the preliminary injunction requested by Providers, asserting it demonstrates the

court did not consider the preliminary injunction standard of § 27-19-201(1), MCA. As

noted, the court did consider the revised standard. And, in any event, the District Court’s

belief regarding the importance of maintaining the status quo is correct. In the federal

courts, which have been interpreting the Winter test for several years, it remains the case

that “the purpose of a preliminary injunction is to ‘preserve the status quo and the rights of

the parties until a final judgment issues in the cause.’” City & Cnty. of S.F. v. U.S.

Citizenship & Immigr. Servs., 

, 789 (9th Cir. 2019) (quoting U.S. Philips

Corp. v. KBC Bank N.V., 

 (9th Cir. 2010)).2

¶17    The State next asserts that the District Court adopting the Providers’ proposed order

when issuing its written order in this case demonstrates a lack of independent judgment

and the injunctions should be reversed on that basis. “While we discourage a district

court’s verbatim adoption of a prevailing party’s proposed order, such an action is not per

se error. A district court may adopt a party’s proposed order where it is sufficiently

comprehensive and pertinent to the issues to provide a basis for the decision.” Wurl v.

Polson Sch. Dist. No. 23, 

, 

, 

 (citing In re M.W.,

, 

, 

) (internal citation omitted);


2
 The Dissent also ignores this line of federal precedent and does not even mention the term “status
quo.”
                                                  12
see also In re Marriage of Frank, 

, 

, 

 (“This

Court has approved the verbatim adoption of findings and conclusions where they are

comprehensive and detailed and supported by the evidence.”). “The litmus test is whether

a district court’s order sets forth reasoning, based upon its findings of fact and conclusions

of law, in a manner sufficient to allow informed appellate review.” Snavely v. St. John,

, 

, 

 (citing Shammel v. Canyon Res. Corp.,

, 

, 

). In reviewing the findings and

conclusions of a district court, our concern is “‘the result and not the source[.]’”

In re Marriage of Frank, ¶ 86 (quoting In re Marriage of Jensen, 

, 

 (1981)). “[T]here is no reason in the Rules or otherwise to give such adopted

findings a lesser degree of weight, since once signed by the district judge they bear the

imprimatur of the court.” In re Marriage of Jensen, 

, 

.

Our review of the District Court’s order in this case shows that the order is “sufficiently

comprehensive to provide a basis for its decision and for our review on appeal,” Wurl, ¶ 29,

and we turn now to addressing the substance of the court’s order.

Likelihood of Success on the Merits

¶18    The first prong of the preliminary injunction test is whether “the applicant is likely

to succeed on the merits[.]” Section 27-19-201(1)(a), MCA. “[L]ikelihood of success does

not require the applicant to establish entitlement to final judgment, relief at all events on

final hearing, relief at a trial on the merits, or evidence sufficient to prevail at trial.”

Planned Parenthood of Mont., 

 (cleaned up, collecting cases). The State

asserts the Providers are not likely to succeed on the merits because the District Court
                                             13
improperly applied strict scrutiny, the Providers lack standing, and neither HB 544 nor HB

862 violate the right to privacy or equal protection of the laws, particularly when reviewed

under a rational basis test. The Providers contend they are likely to succeed on the merits

because both bills infringe the right to privacy and are thus subject to strict scrutiny review,

under which the State failed to demonstrate the bills are narrowly tailored to prevent a

medically acknowledged, bona fide health risk.

¶19    We begin with the State’s argument the Providers lack standing to bring this case.

The State contends Providers cannot “demonstrate sufficient third-party standing” to bring

claims on behalf of their patients. The State asserts neither the bills nor the Rule at issue

here impact the constitutional rights of women patients and therefore do not implicate

decades of our own precedent which has consistently held that “health care providers have

standing to assert on behalf of their women patients the individual privacy rights under

Montana’s Constitution of such women to obtain a pre-viability abortion from a health care

provider of their choosing.” Armstrong v. State, 

, 

, 

; see also Weems I, ¶ 12 (“[W]hen ‘governmental regulation directed at health care

providers impacts the constitutional rights of women patients,’ the providers have standing

to challenge the alleged infringement of such rights.”). The State asserts our precedent

allowing abortion providers to sue on behalf of their patients is not applicable here and the

Providers must instead meet a traditional third-party standing analysis, such as that

recognized in Baxter Homeowners Ass’n v. Angel, 

, 

, 

, wherein the Providers must demonstrate both a close relationship with their

patients and the existence of some hindrance to their patients’ ability to bring suit in order
                                              14
to have standing. The District Court rejected the State’s argument in this regard and found

the governmental regulations at issue “impact the constitutionally protected rights of

Plaintiffs’ Medicaid patients by making it much more difficult, if not impossible, for them

to access abortion.” We agree with the District Court. The Providers allege the provisions

at issue here directly impact both the Montana Constitution’s right to privacy and its right

to equal protection of the laws by “infring[ing] on the right of Providers’ Medicaid patients

to access abortion,” noting the provisions “would deny abortion access to most

Medicaid-eligible Montanans.” These considerations implicate our abortion provider

third-party standing precedent as first set forth in Armstrong and continuously reaffirmed

in the years since, and we “have little trouble concluding . . . that [Providers] have standing

to bring their complaint” challenging the provisions at issue here because they “impact[]

the constitutional rights of women patients” and are “directed at health care providers[.]”

Weems I, ¶ 12 (citations omitted).

Application of Strict Scrutiny

¶20    Beyond its standing argument, the State further contends Providers are unlikely to

succeed on the constitutional merits of their claims. At the outset, the State asserts the

District Court erred by applying strict scrutiny when reviewing the challenged provisions

and the provisions survive rational basis review. The Providers assert strict scrutiny review

is required because the challenged provisions “implicate Providers’ patients’ rights to

access abortions[.]” The District Court applied strict scrutiny review to both the privacy

and equal protection claims.



                                              15
¶21    “[I]n our review of a preliminary injunction, we may review whether the district

court applied the proper level of judicial scrutiny to enjoin an allegedly unconstitutional

statute.” Mont. Cannabis Indus. Ass’n v. State, 

, 

, 

 (MCIA). “Montana adheres to one of the most stringent protections of its

citizens’ right to privacy in the United States--exceeding even that provided by the federal

constitution. Indeed, since the right of privacy is explicit in the Declaration of Rights of

Montana’s Constitution, it is a fundamental right.” Armstrong, ¶ 34 (internal citation

omitted). “Independently of the federal constitution, when the right of individual privacy

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

federal constitution.” Weems v. State, 

, 

, 

(Weems II). In accordance with the significantly broader protection provided by the

Montana Constitution, we have long “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.’”

Weems II, ¶ 34 (quoting Armstrong, ¶ 34). If a provision infringes on the Montana

Constitution’s right to privacy, it is subject to strict scrutiny review. Planned Parenthood

of Mont., 

. Statutes are presumed to be constitutional and the party

challenging the constitutionality generally bears the burden of proving the statute

unconstitutional. Molnar v. Fox, 

, 

, 

(citations omitted). “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
                                              16
our review with the same principle: statutes are presumed to be constitutional.” Weems II,

¶ 34. The District Court applied strict scrutiny to the provisions because it determined they

interfere with the abortion provider-patient relationship by singling out abortion care for

disparate treatment.

¶22    The State’s assertion the provisions at issue in this case are simple funding issues

and do not so much as implicate the Montana Constitution’s right to privacy, which this

Court has long held “protects a woman’s right of procreative autonomy--here, the right to

seek and to obtain a specific lawful medical procedure, a pre-viability abortion, from a

health care provider of her choice,” Armstrong, ¶ 75, is not persuasive. The provisions at

issue here, as they relate to Medicaid-eligible patients, would bar Medicaid from covering

abortion services provided by a provider other than a physician, even though this Court has

recently reaffirmed that the judgment of who is qualified to provide an abortion is the

medical community’s, not the Legislature’s, to make, see Weems II, ¶ 51; require abortion

services to undergo a prior authorization process, which would both impose a delay in the

time-sensitive procedure and require a patient to make an in-person visit to a medical center

when medication abortions have “safely been done via telehealth for years,” see Planned

Parenthood of Mont. v. State ex rel. Knudsen, 

, ___ Mont. ___, ___

P.3d ___; and provide an abortion-specific definition of when an abortion is “medically

necessary” which is untethered from both the definition applicable to every other medical

service provided under Medicaid and from the medical judgment of a patient’s own doctor.

HB 862 goes even farther than HB 544 and the Rule, and completely prohibits the use of

public funds for abortion services unless the pregnancy is “the result of an act of rape or
                                             17
incest” or would place the patient “in danger of death,” again untethering the act of abortion

from the medical judgment of the patient’s own doctor and violating the personal autonomy

guarantees of the Montana Constitution. Though the State protests, the District Court

found preliminarily that these provisions are more than just funding judgments—they

implicate the constitutional rights of Medicaid-eligible Montanans. The court noted the

First Judicial District Court’s ruling that the state may not inject coercive financial

incentives favoring childbirth into a decision which is constitutionally guaranteed to be

free from governmental intrusion, Jeannette R. v. Ellery, No. BDV-94-811, 

, *23 (1st Jud. Dist. May 22, 1995) (citation omitted), because once the

state “has entered an area that is covered by the zone of privacy,” such as the constitutional

right to a pre-viability abortion, “the state must be neutral.” Jeannette R., 

 at *25.3

¶23    Here, the District Court

       applied our precedent subjecting restrictions on abortion services to strict
       scrutiny because they interfere with the fundamental right to privacy.
       See Armstrong[, ¶¶ 39-40]. Concluding that Montana’s constitutional right
       to privacy “broadly 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[,]” we held
       in Armstrong that “Article II, Section 10, protects the right to procreative
       autonomy[.]” Armstrong, ¶¶ 2, 14. Armstrong also held that any legislation
       that interferes with this right must be narrowly tailored to effectuate a
       compelling interest—“a medically acknowledged, [bona fide] health risk,
       clearly and convincingly demonstrated.” Armstrong, ¶¶ 34, 62.

3
 The Dissent’s description of Jeannette R., a 29-year-old district court decision which the State
had full opportunity to appeal but did not, as a court “intend[ing] to derail the proper workings of
our democratic system,” Dissent, ¶ 66, serves little purpose beyond fear mongering. Montana’s
democratic system has not collapsed in the nearly thirty years following the First Judicial District
Court’s Jeannette R. decision.
                                                 18
Planned Parenthood of Mont., 

. “Because the District Court found the

challenged laws restrict access to abortion services, it applied strict scrutiny under

Armstrong. The court followed our precedent and did not commit an error of law when it

employed this standard.” Planned Parenthood of Mont., 

; cf. Espinoza

v. Mont. Dep’t of Revenue, 

, 

 (2020) (determining

strict scrutiny to be the appropriate level of review “[w]hen otherwise eligible recipients

are disqualified from a public benefit” solely because of their religious character in

violation of the U.S. Constitution’s free exercise clause).       Here, otherwise eligible

recipients would be disqualified or otherwise restricted from certain public healthcare

benefits based on their exercise of their fundamental right to privacy as guaranteed under

the Montana Constitution. The District Court also determined strict scrutiny applied to the

equal protection claims. Strict scrutiny applies to an equal protection challenge “when a

law affects a suspect class or threatens a fundamental right. Under this standard, the State

has the burden of showing the law is narrowly tailored to serve a compelling government

interest.” Reesor v. Mont. State Fund, 

, 

, 

.

Again, because the court found the challenged provisions “infringe on Montanans’

fundamental right to access pre-viability abortions,” it properly applied strict scrutiny to

the equal protection claims as well. We also apply strict scrutiny to our review of the

provisions at issue in this case.

¶24    Justice Rice’s Dissent proffers that rational basis review should be applied to the

challenged statutes (and administrative rule) because he believes the bills “are not

                                            19
restrictions upon medical procedures,” but only “concern the separate issue of government

healthcare funding[.]” Dissent, ¶ 59. This contention is belied by the actual text of the

bills at issue—text conveniently ignored in Justice Rice’s Dissent. See Dissent, ¶ 62

(describing HB 862 as limiting public funding “to particular kinds of abortion services”

and HB 544 and the Rule as imposing a condition “that an abortion procedure be provided

by certain providers, upon prior authorization, and in cases where abortions are medically

necessary, as statutorily defined”). The actual provisions of HB 544 and the Rule would

bar Medicaid from covering abortion services provided by a provider other than a

physician, even though this Court has recently reaffirmed that the judgment of who is

qualified to provide an abortion is the medical community’s, not the Legislature’s, to make,

see Weems II, ¶ 51; require abortion services to undergo a prior authorization process,

which would both impose a delay in the time-sensitive procedure and require a patient to

make an in-person visit to a medical center when medication abortions have safely been

done via telehealth for years, see Planned Parenthood of Mont., 

; and

provide an abortion-specific definition of when an abortion is “medically necessary” which

is untethered from both the definition applicable to every other medical service provided

under Medicaid and from the medical judgment of a patient’s own doctor. HB 862,

meanwhile, eliminates funding for any abortion which is not a result of rape or incest,

unless the pregnant woman seeking a medically necessary abortion is literally going to die.

As explained above, the bills (and the Rule) challenged here are not simple funding

decisions, they implicate the constitutional rights of Medicaid-eligible Montanans. “While

the State retains wide latitude to decide the manner in which it will allocate benefits, it may
                                              20
not use criteria which discriminatorily burden the exercise of a fundamental right.” Moe

v. Sec’y of Admin. & Fin., 

 (Mass. 1981). Strict scrutiny is appropriate

“where the government, by selectively denying a benefit to those who exercise a

constitutional right, effectively deters the exercise of that right.”          State v. Planned

Parenthood of Alaska, 

 (Alaska 2001).             “Disparate restrictions on

government funding for women based on their choice of either abortion or childbirth deter

the exercise of a fundamental right because pregnant women in that position are locked in

a binary dilemma: the rejection of one option inevitably entails the embrace of the

other . . . biological reality requires that a woman who cannot afford a medical abortion

must carry her pregnancy to term.” State v. Planned Parenthood of the Great Nw., 

 (Alaska 2019). In accordance with these principles, the District Court

correctly applied strict scrutiny to the challenged provisions in this case.

Right to Privacy

¶25    HB 544 and the Rule each bar Medicaid from covering abortion services provided

by a provider other than a physician, excluding APCs; require abortion services to undergo

a prior authorization process; and provide an abortion-specific definition of when an

abortion is “medically necessary[.]” HB 862 prohibits the use of public funds for abortion

services unless the pregnancy is “the result of an act of rape or incest” or would place the

patient “in danger of death[.]” The State asserts these are simply funding measures and do

not infringe on fundamental rights of Medicaid patients. The Providers assert the District

Court correctly held the provisions likely violate the right to privacy by infringing the right

to access abortion without addressing a medically acknowledged, bona fide health risk.
                                              21
¶26    Under a strict scrutiny analysis of a provision alleged to infringe on a patient’s

fundamental right to abortion care in Montana, the State must demonstrate the provision is

“narrowly tailored to effectuate a compelling interest—‘a medically acknowledged, [bona

fide] health risk, clearly and convincingly demonstrated.’” Planned Parenthood of Mont.,

 (quoting Armstrong, ¶¶ 34, 62). “A narrowly tailored law is ‘the least

onerous path that can be taken to achieve the state objective.’” Weems II, ¶ 44 (quoting

Wadsworth v. State, 

, 

 (1996)).

¶27    The State does not contend any of the provisions could survive strict scrutiny

review, asserting only that the provisions “survive rational basis review and are therefore

constitutional.” But, as we have explained, the provisions are subject to strict scrutiny

review as they implicate the fundamental rights of Medicaid-eligible Montanans. Though

the State has provided no analysis under strict scrutiny, we nevertheless conduct our own

review of the provisions under strict scrutiny. We do note, however, that “we are not

obligated to develop arguments on behalf of parties to an appeal, nor are we to guess a

party’s precise position, or develop legal analysis that may lend support to his position.”

McCulley v. Am. Land Title Co., 

, 

, 

 (citing

Botz v. Bridger Canyon Plan. & Zoning Comm’n, 

, 

, 

).

¶28    “In narrowly defined instances the state, by clear and convincing evidence, may

demonstrate a compelling interest in and obligation to legislate or regulate to preserve the

safety, health and welfare of a particular class of patients or the general public from a

medically-acknowledged, [bona fide] health risk.” Armstrong, ¶ 59. The District Court
                                            22
did not manifestly abuse its discretion when it determined that, at this stage, the State has

failed to meet its burden to demonstrate the provisions are narrowly tailored to effectuate

the compelling interest of a medically acknowledged, bona fide health risk and, based upon

the evidence presented, that the Providers have shown they are likely to succeed on the

merits. The State contends its compelling interest is in combatting Medicaid fraud by

abortion providers, but the District Court found the State presented no evidence abortion

providers were engaged in Medicaid fraud or ever filled out the required MA-37 Form

incorrectly. The State contends the physician-only requirement is justified by Medicaid’s

interest in “ensuring that professionals performing abortions for its beneficiaries have the

skills necessary to provide a high level of care,” but this Court has consistently determined

the determination of who has the skills to provide abortions is determined by the medical

community. “[E]xcept in the face of a medically-acknowledged, [bona fide] health risk,

clearly and convincingly demonstrated, the legislature has no interest, much less a

compelling one, to justify its interference with an individual’s fundamental privacy right

to obtain a particular lawful medical procedure from a health care provider that has been

determined by the medical community to be competent to provide that service and who has

been licensed to do so.” Armstrong, ¶ 62; see also Weems II, ¶ 51. The State contends the

prior authorization process does not violate the right to privacy because the in-person

examination can be done at any medical facility, but the process undoubtedly requires an

extra in-person visit to a healthcare provider, imposes a waiting period to receive the

authorization, and would in practice ban direct-to-patient medication abortions which have

safely been done via telehealth for years without the need for any in-person visit. Planned
                                             23
Parenthood of Mont., 

. And, as for the abortion-specific “medically

necessary” definition imposed by the Rule and HB 544, as succinctly stated by the District

Court, the “State cannot circumvent Jeannette R.’s requirement that it cover medically

necessary abortions by restricting the category of abortions classified as medically

necessary” as this would supplant the clinical judgment of the actual providers as to what

constitutes medical necessity. HB 862’s ban on Medicaid for all abortions except in the

case of rape, incest, or threat of death certainly is not narrowly tailored to effectuate the

compelling interest of a medically acknowledged, bona fide health risk to

Medicaid-eligible Montana women because “abortion care is one of the safest forms of

medical care in this country and the world[.]” Weems II, ¶ 46. At this stage in the litigation,

the State has not clearly and convincingly demonstrated the provisions at issue are

“narrowly tailored to effectuate a compelling interest—‘a medically acknowledged, [bona

fide] health risk, clearly and convincingly demonstrated.’” Planned Parenthood of Mont.,

 (quoting Armstrong, ¶¶ 34, 62). While the State takes issue with the

District Court crediting some of the testimony of the Providers’ experts over that of the

State’s experts, such a credibility determination is entirely within the province of the

District Court to make. See In re T.N.-S., 

, 

, 

. And such testimony remains subject to full development and evaluation in the merits

proceeding. Under a strict scrutiny analysis, the Providers are likely to succeed on their

claim the provisions at issue are unconstitutional infringements on the right to privacy.




                                              24
Equal Protection

¶29    The District Court found the Rule, HB 544, and HB 862 also violate the Montana

Constitution’s guarantee of equal protection.      “No person shall be denied the equal

protection of the laws.” Mont. Const. art. II, § 4. “Article II, Section 4, of the Montana

Constitution provides even more individual protection than does the Fourteenth

Amendment to the U.S. Constitution.” A.J.B. v. Mont. Eighteenth Jud. Dist. Ct., 

, 

, 

. “Equal protection guarantees that persons similarly

situated with respect to a legitimate government purpose of a law receive like treatment.”

A.J.B., ¶ 25 (citing Rausch v. State Comp. Ins. Fund, 

, 

,

).

¶30    We evaluate “potential equal protection violations under a three-step process: (1) we

identify the classes involved and determine if they are similarly situated; (2) we determine

the appropriate level of scrutiny to apply to the challenged statute; and (3) we apply the

appropriate level of scrutiny to the statute.” A.J.B., ¶ 25 (citing Satterlee v. Lumberman’s

Mut. Cas. Co., 

, ¶¶ 15, 17-18, 

, 

). “A law or

policy that contains an apparently neutral classification may violate equal protection if ‘in

reality [it] constitutes a device designed to impose different burdens on different classes of

persons.’” Snetsinger v. Mont. Univ. Sys., 

, 

, 

 (quoting State v. Spina, 

, 

, 

).

¶31    The District Court found the provisions treated similarly-situated classes differently

by imposing “restrictions that will prevent pregnant Medicaid patients who decide to

terminate their pregnancies from accessing those medically necessary abortions . . . without
                                             25
imposing similar restrictions on medically necessary care for Medicaid patients who

choose to continue their pregnancies” and applied strict scrutiny because the challenged

provisions implicate a fundamental right.        As with the challenged provision from

Jeannette R., here the “state has taken the class of indigent pregnant Medicaid eligible

women and divided them. One class, who needs medically necessary treatment (an

abortion) are not entitled to help from the state. However, another class (those women for

whom child birth is a medically necessary treatment) are entitled to state financial help.”

Jeannette R., 

 at *27. Justice Rice’s Dissent disagrees with

our determination of the classes at issue here, asserting the only difference between

indigent women seeking Medicaid funding for an abortion and those seeking to carry a

fetus to term is individual choice. Dissent, ¶¶ 67-68. This disagreement appears to arise

due to the Dissent’s refusal to engage with the actual content of the bills at issue in this

case—a legislative and executively-imposed directive for what “medically necessary”

means untethered from the medical judgment of providers and applied only to abortion

care and no other medical services provided by Medicaid—and the Dissent’s implied

assertion this matter involves Medicaid funding for elective, nontherapeutic abortion care.

But this case involves Medicaid, which “pays for covered medically necessary services”

for indigent patients. Admin. R. M. 37.82.101(1) (2011) (emphasis added). “The State,

having established a health care program for the poor, may not selectively deny necessary

care to eligible women merely because the threat to their health arises from pregnancy.”

Planned Parenthood of Alaska, 

. Further, at a basic level, “a woman who

carries her pregnancy to term and a woman who terminates her pregnancy exercise the
                                            26
same fundamental right to reproductive choice.” Planned Parenthood of Alaska, 

; see also Planned Parenthood of Mont. v. State, 

, 

,

 (explaining the proper classes with regard to the Consent Act are pregnant

minors who want to obtain an abortion and pregnant minors who do not want an abortion).

The proper comparison classes are Medicaid-eligible women who seek funding for

abortion and Medicaid-eligible women who seek funding for natal and prenatal care.

See Planned Parenthood of the Great Nw., 

. Once again, the State only

asserts the challenged provisions survive rational basis scrutiny and does not contend the

legislation is “narrowly tailored to effectuate a compelling interest—‘a medically

acknowledged, [bona fide] health risk, clearly and convincingly demonstrated.’” Planned

Parenthood of Mont., 

 (quoting Armstrong, ¶¶ 34, 62).

¶32   The Dissent further asserts, without evidence, our decision today somehow means

“the government cannot provide assistance or support to women choosing to give birth

without violating the equal protection clause of the Constitution[.]” Dissent, ¶ 68. This

assertion is, on its face, inaccurate. None of HB 862, HB 544, or the Rule have anything

to do with the State’s funding of prenatal care or other pregnancy-related services—each

targets only abortion care. Indeed, an indigent woman seeking to carry her pregnancy to

term may also not be discriminated against once the State has established a health care

program for the poor. “The State’s undisputed interest in providing health care to women

who carry pregnancies to term has no effect on the State’s interest in providing medical

care to Medicaid-eligible women who, for health reasons, require abortions.” Planned

Parenthood of Alaska, 

. And the Dissent’s unusual digression into the need
                                           27
for indigent women to be forced to carry their pregnancy to term to replace humans who

die due to war and disease, Dissent, ¶ 70, or to ensure colleges are not forced to close due

to a lack of students, Dissent, ¶ 71, is not only speculative, it has nothing to do with the

constitutionality of HB 544, HB 862, or the Rule. Suffice it to say that our decision today

does not prevent the government from “be[ing] permitted to assist and support” women

who seek to carry their pregnancy to term as alleged by the Dissent. Dissent, ¶ 71. It

merely recognizes the simple fact that “the State burdens the exercise of a fundamental

right for indigent people when it only subsidizes the inevitable alternative.” Planned

Parenthood of the Great Nw., 

. “Our holding is not that the State is under

a constitutional obligation to fund all abortions. Rather, we hold that the State may not

jeopardize the health and privacy of poor women by excluding medically necessary

abortions from a system providing all other medically necessary care for the indigent. A

woman’s right to choose to protect her health by terminating her pregnancy outweighs the

State’s asserted interest in protecting a potential life at the expense of her health.” Right to

Choose v. Byrne, 

 (N.J. 1982).

¶33    Specific to the Rule and HB 544, the District Court additionally found those

provisions “violate equal protection by discriminating against pregnant Medicaid patients

seeking an abortion from an APC” because “Medicaid would cover abortions for pregnant

Medicaid patients who seek an abortion from a physician but not for pregnant Medicaid

patients who seek an abortion from an APC.”              On appeal, the State defends the

physician-only provision of the Rule and HB 544 as it relates to privacy, asserting only that

the “physician requirement does not violate a woman’s right to privacy” and leaving equal
                                              28
protection unmentioned. As the physician requirement of the Rule and HB 544 relates to

equal protection, then, the State has waived any claim the District Court’s holding was

incorrect. See Barrett v. State, 

, 

, 

.

¶34     Regarding HB 862, the State asserts the Providers are unlikely to succeed on the

merits because it “constitutes a Montana counterpart of the federal Hyde Amendment,

which has withstood court scrutiny.” The State asserts “HB 862 is no more restrictive than

the federal Hyde Amendment, and therefore does not violate the right to privacy or equal

protection.” The federal Hyde Amendment, which prohibits most federal funding of

abortions, was upheld by the U.S. Supreme Court in Harris v. McRae, 

, 

 (1980). That Court did not apply strict scrutiny to the Hyde Amendment in

analyzing the claim under the U.S. Constitution, but a form of rational basis review to

determine if “the Hyde Amendment bears a rational relationship” to the government’s

interest in protecting the potential life of a fetus. Harris, 

, 

. But as we have explained, “Montana’s Constitution affords significantly broader

protection than the federal constitution,” Weems II, ¶ 35, “restrictions on abortion services”

are subject to strict scrutiny, Planned Parenthood of Mont., 

, and the

State may not “infringe the right of procreative autonomy in favor of birth[.]” Armstrong,

¶ 49.

¶35     Upon our review of the record, we conclude the Providers have demonstrated they

are likely to succeed on the merits of their claims based upon the evidence presented thus

far. At a minimum, they have presented “serious questions” going to the merits. All. for

the Wild Rockies, 

. The challenged provisions present legislative (or, in
                                             29
the case of the Rule, executive) directives directly infringing on the right to privacy, to

equal protection of the laws, and to a pre-viability abortion and none addresses a medically

acknowledged, bona fide health risk. The District Court properly applied strict scrutiny

and there is no manifest abuse of discretion in the District Court’s determination the

Providers are likely to succeed on the merits as to the unconstitutionality of the challenged

provisions.

Likelihood of Irreparable Harm

¶36    The second prong of the preliminary injunction test concerns whether “the applicant

is likely to suffer irreparable harm in the absence of preliminary relief[.]”        Section

27-19-201(1)(b), MCA. “For the purposes of a preliminary injunction, the loss of a

constitutional right constitutes an irreparable injury.” Driscoll, ¶ 15; see also MCIA, ¶ 15.

A privacy violation is “commonly recognize[d] . . . as causing irreparable injur[y].”

Weems I, ¶ 25.

¶37    The Ninth Circuit, among others, employs a sliding scale test for preliminary

injunctions. All. for the Wild Rockies, 

. In Disney Enters., the Ninth

Circuit determined the likelihood of success on the merits to be “the most important” factor

in the conjunctive preliminary injunction test. Disney Enters., 

. While the

Ninth Circuit is not alone in that determination, see Higuchi Int’l Corp. v. Autoliv ASP,

Inc., 

, 404 (6th Cir. 2024) (describing likelihood of success on the merits to

be “generally the most important” factor in preliminary injunction analysis), that view is

not uniform across the federal judiciary. In the Second Circuit, for example, “[a] showing

of irreparable harm is the single most important prerequisite for the issuance of a
                                             30
preliminary injunction.” JTH Tax, LLC v. Agnant, 

 (2d Cir. 2023)

(internal quotation marks and citations omitted); see also Montanans Against Irresponsible

Densification, LLC v. State, 

, 

, ___ P.3d ___ (“‘Perhaps

the single most important prerequisite for the issuance of a preliminary injunction is a

demonstration that if it is not granted, the applicant is likely to suffer irreparable harm

before a decision on the merits can be rendered.’ 11A Wright, Miller, & Kane, Federal

Practice and Procedure, § 2948.1 (2013).”). The Second Circuit holds irreparable harm is

the most important factor “because a preliminary injunction strives to maintain the status

quo in order ‘to protect [the] plaintiff from irreparable injury’ while awaiting final decision

on the merits.” JTH Tax, 

 (quoting Wright & Miller § 2947). In the Seventh

Circuit, meanwhile, the likelihood of success on the merits and irreparable harm factors

have been collectively referred to as “[t]he two most important considerations” of the

preliminary injunction test. Bevis v. City of Naperville, 

 (7th Cir.

2023). Regardless of how the various Circuit Courts of Appeal may choose to rank the

Winter factors, one throughline remains true in each court: the purpose of a preliminary

injunction generally remains to preserve the status quo and prevent irreparable injury until

such time as a final judgment may be issued. City & Cnty. of S.F., 944 F.3d at 789; JTH

Tax, 

.

¶38    We have determined the Providers are likely to succeed on their constitutional

claims relating to the challenged provisions—those claims being violations of the Montana

Constitution’s right to privacy and right to equal protection of the law. In itself, the loss of

that constitutional right is an irreparable injury “for the purpose of determining whether a
                                              31
preliminary injunction should be issued.” MCIA, ¶ 15 (citing Elrod v. Burns, 

, 

 (1976)). Accordingly, there is no manifest abuse of discretion

in the District Court’s determination the Rule, HB 544, and HB 862 are likely to cause

irreparable harm in the absence of a preliminary injunction.

Balance of Equities and Public Interest

¶39    The third prong of the preliminary injunction test is whether “the balance of equities

tips in the applicant’s favor,” § 27-19-201(1)(c), MCA, while the final prong of the

preliminary injunction test is whether “the order is in the public interest.”         Section

27-19-201(1)(d), MCA. When the government opposes a preliminary injunction, these two

factors “merge into one inquiry.” Porretti v. Dzurenda, 

, 1047 (9th Cir. 2021)

(citing Drakes Bay Oyster Co. v. Jewell, 

 (9th Cir. 2014)).

¶40    The State asserts these factors weigh in its favor because it “has the constitutional

concern that the laws be faithfully executed” and to impose conditions on the payment of

Medicaid services so as “to help ensure that the services are high quality.” At this stage,

these concerns have not been shown to be “narrowly tailored to effectuate a compelling

interest—‘a medically acknowledged, [bona fide] health risk, clearly and convincingly

demonstrated.’” Planned Parenthood of Mont., 

 (quoting Armstrong,

¶¶ 34, 62). “[T]he Montana Constitution guarantees a fundamental right to access abortion

care from a qualified health care provider of a woman’s choice.” Weems II, ¶ 43 (citing

Armstrong, ¶ 75; Weems I, ¶ 26). As addressed in the likelihood of success prong, the

District Court did not abuse its discretion in finding the challenged provisions are likely to

infringe that fundamental right. “A plaintiff’s likelihood of success on the merits of a
                                             32
constitutional claim . . . tips the merged third and fourth factors decisively in his favor.”

Baird v. Bonta, 

 (9th Cir. 2023).4 The balance of the equities therefore

tips in the Providers’ favor because “the government suffers no harm from an injunction

that merely ends unconstitutional practices and/or ensures that constitutional standards are

implemented.” Doe v. Kelly, 

 (9th Cir. 2017) (internal quotation marks

omitted). The preliminary injunction is also in the public interest because “it is always in

the public interest to prevent the violation of a party’s constitutional rights,” Melendres v.

Arpaio, 

 (9th Cir. 2012) (citations omitted), and “all citizens have a

stake in upholding the Constitution.” Preminger v. Principi, 

 (9th Cir.

2005).

¶41      There is no manifest abuse of discretion in the District Court’s determination the

balance of the equities tips in the Providers’ favor because the government suffers no harm

from an injunction which merely ends unconstitutional practices and that a preliminary

injunction enjoining the provisions at issue in this case is in the public interest because it

is always in the public interest to prevent a violation of a party’s constitutional rights. As

such, the Providers have met all four prongs of the preliminary injunction test and the

District Court did not manifestly abuse its discretion by granting their request for a

preliminary injunction.




4
  Under the federal preliminary injunction test, “in cases where a plaintiff alleges a constitutional
injury, it is no surprise that ‘our caselaw clearly favors granting preliminary injunctions to a
plaintiff . . . who is likely to succeed on the merits of his [constitutional] claim.’” Baird, 

 (quoting Klein v. City of San Clemente, 

 (9th Cir. 2009)).
                                                   33
                                     CONCLUSION

¶42    In sum, our review of the record in this case shows the District Court did not

manifestly abuse its discretion by issuing a preliminary injunction enjoining the Rule,

HB 544, and HB 862, because the Providers are likely to succeed on the merits, would be

irreparably harmed absent an injunction, the balance of the equities tips in the Providers’

favor, and the injunction is in the public interest. The case will proceed to trial and await

the District Court’s decision on the ultimate merits of the Providers’ claims. See Planned

Parenthood of Mont., 

.

¶43    Affirmed.


                                                  /S/ INGRID GUSTAFSON


We Concur:

/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR


Justice Laurie McKinnon concurring.

¶44    I concur with the Court’s decision in its entirety. I write separately to address only

the Special Concurrence and Dissent.

¶45    To begin, the Special Concurrence faults the Court for “stray[ing] beyond what is

necessary to decide the preliminary injunction appeal and . . . effectively decid[ing] the

case on its merits in review of an interlocutory order.” Special Concurrence, ¶ 54. The

Special Concurrence agrees with the Court on the privacy claim and does not contend the

Court impermissibly reached the merits on that claim in an interlocutory order; yet the
                                             34
Court applied the same analysis and preliminary injunction criteria to the equal protection

claim as it did to the privacy claim.1 The Special Concurrence would simply apply “our

long-established precedent in affirming the District Court’s application of strict scrutiny to

a review of the Providers’ privacy claims.” Special Concurrence, ¶ 56. However, the Court

was required by statute to examine each of the preliminary injunction factors––two of

which required likelihood of success and irreparable injury. Here, Providers’ claims allege

both a violation of the right to privacy and equal protection of the law, and the District

Court entered an order enjoining the statutes on each constitutional bases. The District

Court and the parties, both of whom have invested significant time and energy in these

proceedings, should know whether they got the law right and their legal analysis was

correct.   We recently held a statute requiring parental consent for an abortion was

unconstitutional because it violated the right to privacy and equal protection of the law.

Planned Parenthood v. State, 

, 

, 

. It was

important there, as it is here, to address the parties’ arguments, the District Court’s

decision, and to apply our case law consistently. Further, addressing a party’s arguments

helps develop case law, even if it only pertains to preliminary injunction proceedings. The

Special Concurrence’s selective approach of which constitutional provision to address

likely will send mixed messages to litigants and the courts of various justices’ implied




1
  The Special Concurrence refers to the Court’s decision as a “Plurality Opinion.” However, the
Special Concurrence is mistaken as the plurality exists only with respect to the equal protection
claim. This likely will prove confusing to litigants and the courts.
                                                 35
biases and preferences, as well as be confusing about what grounds upon which future

requests for injunctions should be premised.

¶46    Far worse, however, the Special Concurrence has unnecessarily created a plurality

opinion in an area of law that needs strong leadership from this Court. The Special

Concurrence agreed with this Court’s decision in Planned Parenthood and agreed that the

requirement to obtain parental consent for a minor’s abortion violated the minor’s right to

privacy and equal protection of the law. That this proceeding takes place in the context of

a preliminary injunction request does not call for a dilution in the applicable law and

relevant precedent. The Special Concurrence, and the resulting plurality as to the equal

protection claim, will cause this Court to be criticized for its inadequacy as

pronouncements from a court of final resort, as guides to lower courts, and as statements

of the law. This Court has a role beyond that of resolving individual disputes; we serve as

a guide for private parties, legislatures, lower courts, and our own future decisions. To

perform this function adequately, we must provide definitive statements of the law; more

than a mere agreement on the result is needed. Without a majority rationale for the result,

this Court abdicates its responsibility to the institutions and parties depending on it for

direction. A plurality decision thus represents a failure to fulfill the Court’s obligation.

¶47    Here, the Special Concurrence has provided nothing, other than that the Court

addressed both claims ruled on by the District Court, to justify this plurality opinion. The

Special Concurrence cites to an opinion I authored, State v. Tome, 

, 

, 

, to support its misplaced application here of judicial restraint. In Tome,

however, I cited the doctrine of judicial restraint as a reason the United States Supreme
                                              36
Court did not specifically overrule prior precedent when it was not necessary for its ruling.

Tome, ¶ 31. In Tome, the exercise of judicial restraint did not create a plurality opinion.

The Supreme Court’s decision was a legitimate exercise of judicial restraint and is a far cry

from here, where the exercise of “judicial restraint” by the Special Concurrence is not

supported by our case law and has needlessly created a plurality opinion. Unlike other

decisions of this Court, plurality decisions are open to criticism purely because of their

form; they are a body of cases exhibiting judicial decision-making at its worst. The Court

has addressed the claims made by the parties and did not cherry-pick which argument it

would entertain. Both the right to privacy and equal protection are weighty constitutional

issues in our precedent and are relevant to and frequently arise in preliminary injunction

proceedings. The Special Concurrence does a disservice to the parties and courts.

¶48    I now turn to the Dissent.      The Dissent recognizes authority on preliminary

injunction standards from the Eighth and First federal Circuits. This Court has not yet had

the opportunity to address the division within the federal Circuits on how to apply the

preliminary injunction factors.     The federal Circuits apply three different tests to

preliminary injunction questions: the Sliding Scale test, the Sequential Test, and the

Gateway Factor Test. It appears the Dissent, by recognizing the “most important factor”

in its preliminary injunction analysis as the likelihood of success on the merits, is applying

the Gateway Factor test. This test is a hybrid which blends the Sequential Test, used in the

Fourth, Fifth, Tenth, and Eleventh Circuits and the Sliding Scale Test, used in the Second,

Sixth, Seventh and Ninth Circuits. The Gateway Factor test examines the likelihood of



                                             37
success and the likelihood of irreparable harm—the gateway factors—before balancing the

remaining factors.

¶49    How to apply the preliminary injunction factors has not been addressed by this Court

and I believe it important that we be clear going forward on what federal standard courts

and litigants are to apply. Further, which test is applicable in Montana has not been raised

by any of the parties. The Court’s application of Ninth Circuit precedent is nonetheless

appropriate and correct because, when applying the correct level of strict scrutiny, Planned

Parenthood has successfully met its burden on each factor.

¶50    I additionally point out that a woman who carries her pregnancy to term and a

woman who terminates her pregnancy exercise the same fundamental right to reproductive

choice and that any analysis under the right to privacy and the equal protection clause must

be made pursuant to strict scrutiny. Planned Parenthood argues the statutes and regulations

at issue here effectively deter the exercise of the fundamental right to reproductive choice

by selectively denying a benefit to those who exercise that right. Hence, the issue here is

not about whether the legislature has discretion to fund a particular program; it is about

whether they may deter the exercise of a fundamental right when the legislature funds or

does not fund medical care that affects reproductive choice.

¶51    And, finally, in response to the Dissent’s position that the Legislature controls the

purse and has the exclusive appropriation function within the constitutional separation of

powers, Dissent ¶ 65, I feel compelled to revisit what Alexander Hamilton said in The

Federalist No. 78 in May 1788, about the constitutional separation of powers and the role

of the judiciary:
                                            38
Whoever attentively considers the different departments of power must
perceive, that, in a government in which they are separated from each other,
the judiciary, from the nature of its functions, will always be the least
dangerous to the political rights of the Constitution; because it will be least
in a capacity to annoy or injure them. The Executive not only dispenses the
honors, but holds the sword of the community. The legislature not only
commands the purse, but prescribes the rules by which the duties and rights
of every citizen are to be regulated. The judiciary, on the contrary, has no
influence over either the sword or the purse; no direction either of the
strength or of the wealth of the society; and can take no active resolution
whatever. It may truly be said to have neither FORCE nor WILL, but merely
judgment; and must ultimately depend upon the aid of the executive arm even
for the efficacy of its judgments . . . .

There is no position which depends on clearer principles, than that every act
of a delegated authority, contrary to the tenor of the commission under which
it is exercised, is void. No legislative act, therefore, contrary to the
Constitution, can be valid. To deny this, would be to affirm, that the deputy
is greater than his principal; that the servant is above his master; that the
representatives of the people are superior to the people themselves; that men
acting by virtue of powers, may do not only what their powers do not
authorize, but what they forbid.

If it be said that the legislative body are themselves the constitutional judges
of their own powers, and that the construction they put upon them is
conclusive upon the other departments, it may be answered, that this cannot
be the natural presumption, where it is not to be collected from any particular
provisions in the Constitution. It is not otherwise to be supposed, that the
Constitution could intend to enable the representatives of the people to
substitute their WILL to that of their constituents. It is far more rational to
suppose, that the courts were designed to be an intermediate body between
the people and the legislature, in order, among other things, to keep the latter
within the limits assigned to their authority. The interpretation of the laws is
the proper and peculiar province of the courts. A constitution is, in fact, and
must be regarded by the judges, as a fundamental law. It therefore belongs
to them to ascertain its meaning, as well as the meaning of any particular act
proceeding from the legislative body. If there should happen to be an
irreconcilable variance between the two, that which has the superior
obligation and validity ought, of course, to be preferred; or, in other words,
the Constitution ought to be preferred to the statute, the intention of the
people to the intention of their agents.



                                      39
       Nor does this conclusion by any means suppose a superiority of the judicial
       to the legislative power. It only supposes that the power of the people is
       superior to both; and that where the will of the legislature, declared in its
       statutes, stands in opposition to that of the people, declared in the
       Constitution, the judges ought to be governed by the latter rather than the
       former. They ought to regulate their decisions by the fundamental laws,
       rather than by those which are not fundamental . . . .

The Federalist No. 78, at 465-68 (Alexander Hamilton) (C. Rossiter ed., 1962).

¶52    The Supreme Court recently addressed these principles in Moore v. Harper, 

, 

 (2023), where it explained the constitutional limitations on state

legislatures despite being assigned specific constitutional authority.        When a state

legislature carries out its constitutional power to prescribe rules, “the commission under

which it exercises authority” is two-fold. Moore, 

, 143 S. Ct. at 2084

(quoting The Federalist No. 78, at 467). The legislature acts as both a law-making body

created and bound by its state constitution, and as the entity assigned authority by the

federal constitution. Both constitutions restrain the legislature’s exercise of power. Moore,

, 143 S. Ct. at 2084. Here, while the Legislature may choose what programs

to fund, it may not do so in a way that violates our State’s Constitution.

¶53    Contrary to the Dissent’s position, I cannot accept, under these guiding and

foundational principles, that because the Legislature controls the purse, it may fund

indiscriminately and without any accountability to our fundamental law as embodied in

this State’s constitution, which includes equal protection of the law and a right to privacy.


                                                  /S/ LAURIE McKINNON




                                             40
Justice Beth Baker specially concurring.

¶44    I concur in the Court’s decision to affirm the preliminary injunction. I agree that

the District Court correctly applied strict scrutiny in its review of the challenged statutes

and administrative rule and did not manifestly abuse its discretion when it held that the

Providers are likely to succeed on their claim that these provisions unconstitutionally

infringe the right to privacy under Montana’s constitution. In my view, however, both the

Plurality Opinion and the Dissent stray beyond what is necessary to decide the preliminary

injunction appeal and would effectively decide the case on its ultimate merits in review of

an interlocutory order.

¶45    “[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.” Planned Parenthood of Mont. v. State, 

 (quoting Driscoll, ¶

12). We have cautioned trial courts and frequently repeated that when determining whether

to grant or deny a preliminary injunction, findings and conclusions regarding the resolution

of the ultimate issues must be reserved for trial on the merits. See Sandrock, ¶ 13; Benefis

Healthcare v. Great Falls Clinic, LLP, 

, 

, 

.

Likewise, “[o]ur task is not to resolve the substantive matters of law relevant to the ultimate

resolution of [the] complaint by the District Court; it is to inquire whether the District Court

manifestly abused its discretion by denying [or granting the] motion for a preliminary

injunction.” Benefis Healthcare, ¶ 19.

¶46    By explicitly prohibiting the infringement of individual privacy “without the

showing of a compelling state interest,” Article II, Section 10, of the Montana Constitution
                                              41
compels strict scrutiny analysis. The Court applies our long-established precedent in

affirming the District Court’s application of strict scrutiny to a review of the Providers’

privacy claims. Applying that standard, I agree with and join the Court’s analysis of the

privacy claims in affirming the preliminary injunction.

¶47    I would end the analysis there. When a district court is faced with a request for

preliminary injunction, it “should restrict itself to determining whether the applicant has

made a sufficient case to warrant preserving a right in status quo until a trial on the merits

can be had.” Knudson v. McDunn, 

, 

 (1995)

(citing Porter v. K & S P’ship, 

, 

 (1981)). In like

fashion, this Court should restrict itself to determining whether the trial court had a

legitimate basis for granting relief. “[I]n Montana we have a long line of cases holding

that constitutional questions will not be determined unless their determination is essential

to the disposition of the case.” State ex rel. Hammond v. Hager, 

, 

 (1972) (citations omitted). See also In re G.M., 

, 

, 

 (“We have repeatedly recognized that courts should avoid constitutional

issues whenever it is possible to decide a case without reaching constitutional

considerations” (internal citation omitted)). This principle of restraint should have equal

force in resolving appeals of a preliminary injunction on the narrowest ground supported

by the record and the trial court’s decision so as to avoid adjudicating the case on its merits

at this preliminary stage. “The ‘cardinal principle of judicial restraint’ is that ‘if it is not

necessary to decide more, it is necessary not to decide more.’” State v. Tome, 

, 

, 

 (quoting Morse v. Frederick, 

,
                                              42


 (2007) (Breyer, J., concurring in the judgment in part and dissenting

in part)).

¶48    Because the Court’s privacy ruling, well-grounded in our precedent, “is sufficient

to settle the case at bar, principles of judicial restraint counsel us to decline ruling further.”

In re Powder River Drainage Area, 

, 

 (1985). I

accordingly join its decision to affirm the preliminary injunction on the Providers’ privacy

challenge; I offer no opinion or comment about the equal protection issues at this stage in

the proceedings.


                                                    /S/ BETH BAKER


Justice James Jeremiah Shea joins in the specially concurring Opinion of Justice Beth
Baker.


                                                    /S/ JAMES JEREMIAH SHEA


Justice Rice, dissenting.

¶49    The Court upholds the District Court’s preliminary injunction of HB 544 and HB

862. I would reach a contrary conclusion on the critical distinction that these bills are not

restrictions upon medical procedures that must rest upon a bona fide health risk and be

subjected to strict scrutiny review under the fundamental right of privacy. Rather, the

challenged bills concern the separate issue of government healthcare funding, an issue that

lies at the core of the Legislature’s exclusive appropriation function within the




                                               43
constitutional separation of powers, and which should be assessed under rational basis

review.

¶50    First, as the Court notes, the District Court applied the new Montana statute, adopted

in March 2023, which revised the standards governing the issuance of preliminary

injunctions, and adopted federal standards. See § 27-19-201(1), MCA.1 Now, a petitioner

must demonstrate the likelihood of success on the merits in every injunction case, in

addition to demonstrating the other conjunctively listed requirements. Critically, federal

courts, precedent from which we are now to follow, have recognized that likelihood of

success on the merits is the “most important factor” in the preliminary injunction analysis.

California v. Azar, 

 (9th Cir. 2018); Brady v. Nat’l Football League, 

 (8th Cir. 2011); see also Arborjet, Inc. v. Rainbow Treecare Sci.

Advancements, Inc., 

 (1st Cir. 2015) (“[P]roving likelihood of success

on the merits is the ‘sine qua non’ of a preliminary injunction.”). Consequently, issuance

of a preliminary injunction in Montana is now more heavily dependent upon a court’s

consideration of a petitioner’s likelihood of success on the merits than under prior statute.

¶51    Consideration of the merits should begin where all constitutional challenges to

legislation must begin: that the legislation is presumed to be constitutional.            “The

constitutionality of a legislative enactment is prima facie presumed, and every intendment

in its favor will be presumed, unless its unconstitutionality appears beyond a reasonable

doubt. The question of constitutionality is not whether it is possible to condemn, but


1
 The statute was made retroactively applicable “to all occurrences on or after January 1, 2021.”
2023 Mont. Laws ch. 79, § 3.
                                              44
whether it is possible to uphold the legislative action . . . .” Powell v. State Compensation

Ins. Fund, 

, 

, 

 (citing Stratemeyer v. Lincoln

County, 

, 

 (1993)); see also Driscoll, ¶ 16 (a

challenged statute “enjoys a presumption of constitutionality.”). This is because courts

must “assume that the legislative body—whether Congress or a state legislature—was

aware of constitutional limitations and endeavored to follow them.” Bevis v. City of

Naperville, 

 (7th Cir. 2023); see also Clark Fork Coalition v. Mont.

Dep’t of Natural Res. & Conservation, 

, ¶ 60, 

, 

(“The Legislature is presumed to be aware of all of its enactments, as well as all related

constitutional duties and limitations.”). “Every possible presumption must be indulged in

favor of the constitutionality of a legislative act. . . . The party challenging a statute bears

the burden of proving that it is unconstitutional beyond a reasonable doubt.” Powell, ¶ 13.

“[I]f any doubt exists, it must be resolved in favor of the statute.” Powell, ¶ 13 (emphasis

added). While a challenged statute need not be proven to be unconstitutional beyond a

reasonable doubt at the preliminary injunction stage, a petitioner nonetheless has the

burden, as part of the consideration of the likelihood of ultimate success on the merits, of

making out a prima facie case that a challenged statute is unconstitutional. See City of

Billings v. County Water Dist., 

, 

 (1997) (petitioner

for injunctive relief need not “prove beyond a reasonable doubt” that a challenged statute

is unconstitutional, but nonetheless “must make out a prima facie case of

unconstitutionality.”).



                                              45
¶52    After presuming the legislation’s constitutionality, a court’s assessment of

likelihood of success must consider the appropriate level of scrutiny to be applied to the

judiciary’s review of the challenged statute. See Mont. Cannabis Indus. Ass’n, ¶ 13. At

center in this case is the Legislature’s power of the purse, including both the power to

appropriate public funding and to set the conditions upon which the funds can be

appropriated, that is, to adopt regulations for such funding. Specifically, HB 862 limits

public funding (Medicaid) to particular kinds of abortion services, while HB 544, and the

Rule adopted pursuant thereto, impose the condition for Medicaid funding that an abortion

procedure be provided by certain providers, upon prior authorization, and in cases where

abortions are medically necessary, as statutorily defined.      These are parameters the

Legislature has adopted for provision of public funding of abortion services pursuant to its

power of the purse, a quintessential legislative purpose that has been long recognized:

       Among Congress’s most important authorities is its control of the purse.
       U.S. Const., Art. I, § 9, cl. 7; see also Office of Personnel Management v.
       Richmond, 

, 

, 

 (1990)
       (the Appropriations Clause is “a most useful and salutary check upon
       profusion and extravagance” (internal quotation marks omitted)). It would be
       odd to think that separation of powers concerns evaporate simply because the
       Government is providing monetary benefits rather than imposing
       obligations.

Biden v. Nebraska, 

, 

, 2375 (2023) (emphasis added).

       By the time of the Constitutional Convention, the principle of legislative
       supremacy over fiscal matters engendered little debate and created no
       disagreement. It was uncontroversial that the powers to raise and disburse
       public money would reside in the Legislative Branch. The only disagreement
       was about whether the right to originate taxation and appropriations bills
       should rest in a legislative body with proportionate representation. . . .



                                            46
       In short, the origins of the Appropriations Clause confirm that appropriations
       needed to designate particular revenues for identified purposes. Beyond that,
       however, early legislative bodies exercised a wide range of discretion.

Consumer Fin. Prot. Bureau v. Cmty. Fin. Servs. Ass’n of Am., Ltd., 

, 431,

, 1484 (2024) (emphasis added) (affirming the funding of consumer bureau

despite Congress not employing the usual mechanism of specific appropriation).

       The legislature not only commands the purse, but prescribes the rules by
       which the duties and rights of every citizen are to be regulated. The judiciary,
       on the contrary, has no influence over either the sword or the purse; no
       direction either of the strength or of the wealth of the society; and can take
       no active resolution whatever.

Evans v. Gore, 

, 

 (1920) (citing Federalist No. 78, at 1

(Alexander Hamilton) (emphasis added) (overruled in part on other grounds, United States

v. Hatter, 

, 

 (2001)).

¶53    In Harris, the U.S. Supreme Court entertained statutory and constitutional

challenges to congressional appropriation actions involving the “funding of abortions

under Title XIX of the Social Security Act, commonly known as the ‘Medicaid’ Act, and

recent annual Appropriations Acts containing the so-called ‘Hyde Amendment,’” and

addressed several issues that are likewise before us here. Harris, 

, 

. Regarding interpretation of the challenged appropriation statutes, the

Court concluded that Title XIX did not require a participating state to pay for services for

which federal reimbursement was unavailable, specifically in that case, by reason of the

Hyde Amendment’s limitation on the funding of abortion. Harris, 

, 

. Taking up the plaintiffs’ constitutional challenges, including under the then-

existent federal “due process liberty” right to abortion established in Roe v. Wade, 

113, 

 (1973), the Court distinguished the constitutional right to obtain an

abortion from a claimed right to require public funding for that private choice:

       Although the liberty protected by the Due Process Clause affords protection
       against unwarranted government interference with freedom of choice in the
       context of certain personal decisions, it does not confer an entitlement to such
       funds as may be necessary to realize all the advantages of that freedom. To
       hold otherwise would mark a drastic change in our understanding of the
       Constitution. It cannot be that because government may not prohibit the use
       of contraceptives, Griswold v. Connecticut, 

, or prevent parents
       from sending their child to a private school, Pierce v. Society of Sisters, 

, government, therefore, has an affirmative constitutional obligation
       to ensure that all persons have the financial resources to obtain contraceptives
       or send their children to private schools. To translate the limitation on
       governmental power implicit in the Due Process Clause into an affirmative
       funding obligation would require Congress to subsidize the medically
       necessary abortion of an indigent woman even if Congress had not enacted a
       Medicaid program to subsidize other medically necessary services. Nothing
       in the Due Process Clause supports such an extraordinary result.

Harris, 

, 

. Rejecting the plaintiffs’ privacy and

equal protection arguments, the Court applied rational basis review and affirmed the Hyde

Amendment appropriation provision pursuant thereto.2 Harris, 

, 

.




2
  The Harris Court was not unaware of the potentially impactful nature of its decision, but believed
it was the correct application of the Constitution, stating:

    It is not the mission of this Court or any other to decide whether the balance of competing
    interests reflected in the Hyde Amendment is wise social policy. If that were our mission,
    not every Justice who has subscribed to the judgment of the Court today could have done
    so. But we cannot, in the name of the Constitution, overturn duly enacted statutes simply
    “because they may be unwise, improvident, or out of harmony with a particular school of
    thought.” Williamson v. Lee Optical Co., 

, quoted in Dandridge v.
    Williams, 397 U.S., at 484.

Harris, 

, 

.
                                                48
¶54    Likewise, the right to obtain an abortion based upon the Montana constitutional right

of privacy, which subjects medical regulations to a strict scrutiny review, does not create a

concomitant constitutional right for public funding of private choice that is also subjected

to strict scrutiny review. We held in Timm v. Mont. Dep’t. of Pub. Health & Hum. Servs.,

, 

, 

, that “there is no fundamental right to

receive Medicaid benefits in Montana.” While public funding of abortion or other medical

services can be considered beneficial and important, nevertheless, such financial programs

are appropriation decisions that must, under the Constitution, be made exclusively by the

Legislature, including the adoption of eligibility criteria for that funding. “It is not

unreasonable for a State to insist upon a prior showing of medical necessity to insure that

its money is being spent only for authorized purposes.” Maher v. Roe, 

,

 (1977) (upholding a state Medicaid regulation for payment of abortion

services).   The Legislature imposes numerous eligibility requirements for Medicaid

benefits. If the Legislature’s funding decisions must be subjected to strict scrutiny review

by the courts—standards that are the most difficult to satisfy—that branch’s power to

appropriate would be significantly undermined.

¶55    The Court applies strict scrutiny review to the challenged bills for the reason that

the Montana Constitution provides broader protections than the Federal Constitution.

Opinion, ¶ 34. However, while this principle is correct generally, it is correct specifically

only in proper context, and is not untethered from established jurisprudence. Indeed, in

many areas of constitutional law, the Montana and Federal Constitutions are aligned, either

as originally intended, or as they became within the development of interpretive caselaw.
                                             49
The Legislature’s power to “command[] the purse” and to prescribe the rules by which

public funding is appropriated is not narrowed under the Montana Constitution. Evans,

, 

; see also Mont. Const., art. V, § 1 (“The legislative power

is vested in a legislature consisting of a senate and a house of representatives.”).

¶56    The Court also bases its application of strict scrutiny on Jeannette R., a state district

court decision that was not appealed. Opinion, ¶¶ 22, 28, 31. Beyond the jurisdictional

limitation of the case, I believe the constitutional portion of the decision was wrongfully

entered and should not serve as precedent. The District Court, after concluding that a

challenged administrative regulation was invalid as conflicting with state statute, which

resolved the entire case, nonetheless proceeded to decide two constitutional challenges to

the regulation, offering:

       [T]his Court feels that this issue is of such importance that these
       constitutional matters must be decided by the courts of Montana at one time
       and not over a period of time. To do otherwise would only encourage a ping
       pong effect where this regulation might be changed by the legislature or by
       an administrative agency and come back to this Court or some other court
       for further review. This process could take years and would not be in the
       public interest.

Jeannette R., *17-18. It thus appears the District Court intended to derail the proper

workings of our democratic system, within which the legislative and executive branches

could have responded to the statutory basis for the court’s decision, by using the plaintiff’s

constitutional challenges to preempt future actions by the other governmental branches.

Clearly, efforts by the legislative and executive branches to navigate or respond to a judicial

decision should instead be recognized as the proper functioning of our tripartite system,

not deemed to be a time-wasting “ping pong” match to be preempted by an excessive
                                              50
judicial ruling. If the judiciary is to retain the moral authority to perform its constitutional

duty to ensure that the legislative and executive branches stay within their respective

constitutional lanes, the judiciary must likewise stay within its own lane. This requires that

the judiciary permit the other branches to act within their respective spheres of authority,

rather than preempting them. Consequently, in my view, only the statutory portion of the

District Court’s decision in Jeannette R. was appropriately entered.

¶57    Even so, I believe the constitutional analysis provided in Jeannette R. was

substantively incorrect, and that the citation to it furthers what I believe was the equal

protection analytical error made by the Court in Planned Parenthood v. State, 

, 

, 

, 

. There, the Court held that the

challenged Consent Act created two similarly situated classes of minors, those being “a

class of pregnant minors who want to obtain an abortion and a class of pregnant minors

who do not want an abortion.” Planned Parenthood, ¶ 28. I disagreed with that assessment

of the classes on the grounds that the Consent Act did not apply to pregnant minors who

did not want to obtain an abortion, and did not itself create the two classes. Planned

Parenthood, ¶¶ 62-63 (Rice, J., concurring). Rather, the difference between the groups

resulted from individual choice, not the legislation, and the groups were not similarly

situated. Planned Parenthood, ¶¶ 62-63 (Rice, J., concurring).

¶58     Now, the Court goes further to hold that the State cannot even incentivize a

woman’s choice to carry her pregnancy to term and give birth, because such an incentive

would not be neutral, nondiscriminatory treatment of women who seek an abortion.

Opinion, ¶ 22. That the government cannot provide assistance or support to women
                                              51
choosing to give birth without violating the equal protection clause of the Constitution is,

in my view, an untenable conclusion, but is the logical extension of the Court’s

determination in Planned Parenthood that these groups constitute similarly situated classes

that the government is treating differently, and which requires strict scrutiny review. I

continue to believe this to be an incorrect equal protection analysis. See Harris, 

, 

 (“Congress has established incentives that make childbirth a

more attractive alternative than abortion for persons eligible for Medicaid.                 These

incentives bear a direct relationship to the legitimate congressional interest in protecting

potential life.”).

¶59    Governments, at the state and national levels, frequently incentivize personal

choice, providing reasons for people to individually pursue policies the government

believes are good for the state or nation. Such incentivization is ubiquitous throughout the

law and includes incentives for choices that would fall within so-called “zone[s] of

privacy.” Jeanette R., *25. For example, out of their policy belief that marriage is good

for society, governments provide many incentives for people to marry.3 These policies do

not constitute discriminatory, nonneutral treatment of persons who decide not to marry,



3
  Marriage is recognized as a universal fundamental right. See Universal Declaration of Human
Rights art. 16, Dec. 10, 1948, A/RES/217 (III); International Covenant on Civil and Political
Rights art. 23, Dec. 19, 1966, 999 U.N.T.S. 171; Charter of Fundamental Rights of the European
Union Tit. II, art. 9, Oct. 26, 2012, OJ C 326, 391-407. The benefits in law of marriage in the U.S.
include, to name a few: tax benefits for joint income tax filers, estate planning benefits including
inheriting a share of a spouse’s estate with tax exemption, a spouse’s social security benefits and
enhancement of the individual’s social security benefits, Medicare, disability benefits for spouses,
spouse’s employer-provided benefits, FMLA benefits for caring for a spouse, death benefits,
consumer benefits for married couples, including with respect to insurance, and communication
privileges.
                                                  52
because such incentives for voluntary behavior do not create similarly situated classes that

are treated differently by the government. Rather, the different outcome is the result of

personal choice.

¶60    Women who choose to carry their pregnancies to term and give birth provide a

virtually limitless benefit to society, that of human life and human potential. While the

ravages of war, disease and the like can mean that a greater number of humans will result

in greater suffering, history instructs us that humanity can prevail over suffering and

survive into the future if enough people continue to pursue good. For that to happen,

society needs more children to become more students to become more teachers and nurses

and scientists and truck drivers—all the trades and professions—to serve and preserve

society into the future.

¶61    Indeed, certain nations of the world are now facing the new and unusual problem of

depopulation. See Matthew J. Delventhal et al., Demographic Transitions Across Time

and Space 2 (Nat’l Bureau of Econ. Rsch., Working Paper No. 29480, 2021),

https://www.nber.org/papers/w29480. Childbirth rates are not high enough to sustain the

future needs in these nations, and governments are responding by incentivizing higher birth

rates and larger families. See Lily Kuo & Xueying Wang, Can China recover from its

disastrous one-child policy? The Guardian (Mar. 2, 2019, 10:00 AM EST),

https://www.theguardian.com/world/2019/mar/02/china-population-control-two-child-

policy [https://perma.cc/2DED-VEAB]; Neil Howe, Nations Labor to Raise Their

Birthrates,        Forbes     (Mar.       29,      2019,       11:00       AM        EST),

https://www.forbes.com/sites/neilhowe/2019/03/29/nations-labor-to-raise-their-birthrates/
                                            53
[https://perma.cc/3F34-TKH4]. The United States is facing a limited version of this. The

Great Recession of 2007-2008 resulted in a decline in childbirth rates, and will, with a

certainty, bring about a significantly smaller high school graduate population around 2026.

Gretchen Livingston & D’vera Cohn, U.S. Birth Rate Decline Linked to Recession, Pew

Res. Ctr. (Apr. 6, 2010), https://www.pewresearch.org/social-trends/2010/04/06/us-birth-

rate-decline-linked-to-recession/ [https://perma.cc/NN5V-ZEXV].         It is projected that

many colleges, perhaps hundreds, could close or be forced to downsize because of the

impending “demographic cliff.” Dan Bauman, Colleges Were Already Bracing for an

‘Enrollment Cliff.’ Now There Might be a Second One. The Chronicle of Higher Ed.

(Feb. 7,     2024,      corrected      June        7,    2024,      3:55      PM       EST)

https://www.chronicle.com/article/colleges-were-already-bracing-for-an-enrollment-cliff-

now-there-might-be-a-second-one.       Human “capital” remains a critical—the most

critical—ingredient to our future. Government must be permitted to assist and support the

birth choice, which does not violate the Constitution because such incentives neither create

similarly situated classes nor constitute discrimination against those who, for whatever

reason, are unable to make that choice.

¶62    In my view, the District Court failed to apply the presumption of constitutionality

of the challenged bills; did not credit our precedent that there is no fundamental right to

receive Medicaid benefits and recognize that there is no concomitant constitutional right

to public funding of a private choice, thereby conflating the right of private medical choice

with the policy of public funding, as recognized in Harris, and applying the wrong standard

of review; and failed to recognize the limits of the legitimate portion of the Jeannette R.
                                              54
decision. Notably, the appropriate portion of the Jeannette R. decision took pains to

“emphasize that this decision does not conclude that the state of Montana must fund

elective, nontherapeutic abortions,” and recognized that “[t]he legislature can pass its own

Hyde Amendment if it wishes.” Jeanette R., **28, 17. The Legislature has done so. I do

not believe, for the preceding reasons and consistent with the above-cited authority, that

the Plaintiffs have carried their burden to demonstrate the likelihood of success on the

merits.

¶63       I would reverse the preliminary injunction.


                                                   /S/ JIM RICE




                                              55