The Montana Supreme Court last week heard oral arguments in Weems v. State, a case that will decide whether advanced practice registered nurses can legally provide abortions in Montana, or whether the Legislature has a broad ability to regulate a nurse’s scope of practice currently overseen by a professional medical board.
The state’s high court previously considered the case in 2019, after a district court temporarily allowed Helen Weems, a nurse practitioner and the owner of All Families Healthcare in Whitefish, to provide abortions while the case proceeded. The Supreme Court upheld that decision in a 4-3 ruling.
Assistant solicitor general Brent Mead argued the case on behalf of the state of Montana, asking the justices to uphold a state law that bestows the power to provide an abortion only to physicians and physician assistants, rather than deferring to the scope of practices governed by the Montana Board of Nursing.
“Licensing boards don’t possess an independent legislative power. They are created by the Legislature and subject to legislative limitations. Finding otherwise allows the proverbial tail to wag the dog,” Mead said in his opening remarks.
Plaintiffs’ attorney Hillary Schneller from the national nonprofit Center for Reproductive Rights, on the other hand, framed the case as a straightforward application of the 1999 Montana Supreme Court precedent in Armstrong v. State, which found that abortion is a medical choice protected by the state’s constitutional right to privacy that cannot be infringed without a compelling state interest.
“Medical decisions must often and necessarily be made in partnership with a health care provider. And so it is critical that the individual has control over who that provider is to fully effectuate their right to make this decision and to access care,” Schneller said.
Helena District Court Judge Mike Menahan, who has been adjudicating the case since 2018, ruled in February that the state had not provided a compelling interest in restricting advanced practice registered nurses, also referred to as nurse practitioners, from providing abortions, and that the Board of Nursing allows nurse practitioners to include abortion within their scope of practice if they have obtained the appropriate training and experience.
“Based on the precedent in Armstrong and the State’s failure to present a compelling argument as to why the legislature is better able to determine qualifications of potential abortion providers than the state-created medical licensing board, the Court finds the Montana Board of Nursing to be the appropriate source of authority for determining APRNs’ competency to provide abortion procedures,” Menahan wrote.
In Wednesday’s oral arguments, Mead said the case does not require the Legislature to meet the legal threshold cited by Menahan. Instead, he argued, the Legislature should be able to regulate the practice of medicine when the issue is about licensure and that a nurse practitioner’s license doesn’t expressly cover procedural or medication abortions.
Justices Beth Baker and Ingrid Gustafson questioned Mead about the existence of evidence in the record to support that assertion, pointing to a 2019 meeting in which the Board of Nursing decided not to amend its rules and statutes because medication and procedural abortion are “not significantly different than the procedures, medications and surgeries that nurse practitioners currently perform without significant issues,” such as managing miscarriages.
In response, Mead pointed to testimony from the state’s expert witness, introduced earlier in the case, who said nurse practitioners are not qualified to perform medical and surgical abortions. That diversion prompted rebukes from Justice Dirk Sandefur for rehashing factual questions that were outside the bounds of the arguments the state made when appealing the district court’s ruling.
“Nowhere, nowhere in the state’s brief is there any assertion that there’s any genuine issue of material fact, or the district court erroneously concluded that there was no genuine issue of material fact,” Sandefur said.
Mead maintained that “there is a difference of opinion” between the state and the plaintiffs about whether nurse practitioners can safely provide abortions.
Justice Baker later introduced a new line of questioning on that topic, asking Mead what evidence exists to show that abortion risks increase when conducted by a nurse practitioner as opposed to a physician assistant. Mead responded that the distinction lies in timely hospital access and the legal and medical relationship between a physician assistant and a physician. Sandefur and Gustafson interjected, pointing out that physician assistants often practice in outpatient clinics, away from a hospital, and their supervising physician isn’t always on-site.
“So your assertion is that these advanced practice nurse practitioners aren’t qualified to do this, or that they are subjecting these patients to increased risk because in an outpatient situation that there was such a complication, all they can do is call 911 and have these people transported to the ER,” Sandefur said. “The [physician assistant] in that same situation is in that same situation. So what difference does it make?”
Schneller, the plaintiffs’ attorney, later argued that the Board of Nursing and other expert witnesses had reiterated that nurse practitioners can provide abortions with proper training and experience.
“The record is undisputed that medication, aspiration abortion safety, do not depend on whether a physician, a physician’s assistant or advanced practice nurse is providing that care,” Schneller said in response to questions from Justice Laurie McKinnon. “The state may disagree with that, but it has not come forward with actual evidence to show that abortions provided by physicians and physician assistants resulted in any different safety than those provided by nurse practitioners and nurse midwives.”
Schneller argued that the state’s “central ask here is that this court not apply its controlling precedent in Armstrong” and asked the court to affirm the 1999 ruling as it applies to the Weems case. While the state had argued that prohibiting nurse practitioners from providing abortions would not inhibit access to abortion, citing other abortion providers currently operating around Montana, Schneller said the court’s Armstrong guidance was that patients can access appropriate medical care from the provider of their choice.
“Armstrong made clear that the right to access abortion from a chosen health care provider was not dependent on the statewide provider availability,” Schneller said. “I think here the critical issue is whether you have access to your chosen provider.”
Near the end of questioning, Justice Jim Rice asked Schneller to reflect on the question Mead had posed at the beginning of his arguments: whether the district court was correct to defer to the Board of Nursing on the issue, raising its authority on the issue above that of the Legislature.
“I do think there is a difference between, on the one hand saying to the Legislature, ‘You have the right to legislate in this area of abortion. If you get it wrong, it could be struck down as unconstitutional,’” Rice said. “And on the other hand, saying, ‘Legislature, you don’t even have the right to legislate on this subject because that is the exclusive jurisdiction of the board.’”
Schneller agreed that the Legislature has a role in regulating medical care and general practice, but said it should not selectively intrude in standards set by a medical board.
“I think there may be ways in which the Legislature can certainly regulate generally, but here their legislation has targeted and implicated a fundamental right,” Schneller said, referencing the right to privacy. That, she said, moves the matter into a different realm.
Chief Justice Mike McGrath thanked the attorneys for their argument and said the court will “take this matter under advisement and issue an opinion in due course.”
Present in the courtroom was Weems, who stood up to hug her attorney after the court adjourned. Outside the courtroom, Weems said she hopes the justices will decide to uphold the Armstrong decision and protect the right to access abortion from qualified providers.
“It seems fundamental to the functioning of a court that it’s going to recognize precedent and apply precedent where appropriate,” Weems said. “And if that is wholly ignored, then that would undermine the public’s confidence in the Montana state Supreme Court.”