In the Supreme Court of the State of Montana
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04/26/2019 DA 18-0308 Case Number: DA 18-0308 IN THE SUPREME COURT OF THE STATE OF MONTANA 2019 MT 98 HELEN WEEMS and JANE DOE, Plaintiffs and Appellees, v. STATE OF MONTANA, by and through Timothy C. Fox, in his official capacity as Attorney General, and TRAVIS R. AHNER, in his official capacity as the County Attorney for Flathead County,1 Defendants and Appellants. APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. ADV-2018-73 Honorable Mike Menahan, Presiding Judge COUNSEL OF RECORD: For Appellants: Timothy C. Fox, Montana Attorney General, Rob Cameron, Deputy Attorney General, Patrick M. Risken, Assistant Attorney General, Helena, Montana Travis R. Ahner, Flathead County Attorney, Kalispell, Montana For Appellees: Alex Rate, Elizabeth K. Ehret, ACLU of Montana, Missoula, Montana Hillary Schneller, Hailey Flynn, Center for Reproductive Rights, New York, New York 1 We have substituted the current Flathead County Attorney pursuant to M. R. Civ. P. 25(d). For Amicus Montana Public Health Association: Simona G. Strauss, Simpson Thacher and Bartlett LLP, Palo Alto, California Lindsay Beck, Beck, Amsden and Stalpes, PLLC, Bozeman, Montana Submitted on Briefs: January 30, 2019 Decided: April 26, 2019 Filed: __________________________________________ Clerk 2 Justice Beth Baker delivered the Opinion of the Court. ¶1 Twenty years ago, this Court held that a statute preventing a woman from obtaining a lawful medical procedure—a pre-viability abortion—from a health care provider of her choosing unconstitutionally infringed her right to individual privacy under Montana’s Constitution. Armstrong v. State, 1999 MT 261, ¶¶ 2, 75, 296 Mont. 361, 989 P.2d 364. We used the term “health care provider” to refer to any physician, physician assistant-certified, nurse, nurse-practitioner or other professional who has been determined by the appropriate medical examining and licensing authority to be competent by reason of education, training or experience, to perform the particular medical procedure or category of procedures at issue or to provide the particular medical service or category of services which the patient seeks from the health care provider. Armstrong, ¶ 2, n.1. Six years later, the Montana Legislature amended § 50-20-109(1)(a), MCA, to restrict the performance of pre-viability abortions to licensed physicians and physician assistants-certified. 2005 Mont. Laws, ch. 519, § 27. Plaintiffs, a Certified Nurse Practitioner (CNP) and Certified Nurse Midwife (CNM), filed this action in 2018, seeking a declaratory judgment that the statute violates Montana’s constitutional right of privacy, equal protection, and dignity. They moved for a preliminary injunction. Both parties submitted affidavits, and neither requested an evidentiary hearing. After considering the affidavits and legal arguments presented by all parties, the District Court granted that relief on April 4, 2018. Pursuant to M. R. App. P. 6(3)(e), the State appeals on the alternative grounds that the District Court: 3 1. lacked jurisdiction because the Plaintiffs do not have standing to seek relief on their claims; or 2. improperly issued an advisory opinion on claims that were not ripe for a preliminary injunction, did not establish irreparable harm, and did not seek to preserve the status quo. We affirm. FACTUAL AND PROCEDURAL BACKGROUND ¶2 Plaintiff Jane Doe is a CNM and women’s health nurse practitioner who practices midwifery in Montana and is proceeding in this matter under a pseudonym by leave of court. Plaintiff Helen Weems is a CNP in Montana who has been board certified in family practice by the American Nurses Credentialing Center since 1999 and re-certified every five years since.2 Weems co-owns a primary care clinic in Whitefish that offers comprehensive health services for men and women, including reproductive health care services. The other owner is Susan Cahill, a licensed physician’s assistant (PA), who performs early-term abortions as part of her practice. Both Plaintiffs allege that the performance of early-term abortions3 is within their scope of practice and that they could perform such services but for Montana’s statutory restriction. ¶3 In support of their motion for preliminary injunction, Plaintiffs presented evidence that APRNs routinely perform procedures within their scope of practice that are similar in skill to or more complex than early-term abortions and that carry comparable or greater 2 Both CNPs and CNMs are Advanced Practice Registered Nurses (APRN). See Admin. R. M. 24.159.1413. 3 The procedures Plaintiffs seek to provide are aspiration and medication abortions, both of which are carried out in the early stages of pregnancy. Medication abortion is available up to ten weeks, and aspiration abortion is an outpatient procedure used throughout the first trimester. 4 risk. Plaintiff Weems described her experience with inserting and removing Intra-Uterine Devices (IUDs), dilating the cervix, and performing endometrial biopsy, a procedure that involves inserting instruments into the uterus to remove a tissue sample from the uterine lining. She described these procedures as comparable to those used in an aspiration procedure for abortion. She also attested that she has prescription authority from the Board of Nursing and a U.S. Drug Enforcement Authority (DEA) license, which permits her to prescribe schedules II through V controlled substances. Weems attested to her experience, prior to moving to Montana, with independently dispensing mifepristone and misoprostol for medication abortions—drugs that are not controlled substances and that carry less danger than controlled substances. ¶4 Plaintiffs also presented evidence to show that early abortion safety, efficacy, and patient acceptability is the same as between physicians and physician assistants, nurse practitioners, and certified nurse midwives. Finally, they offered evidence of the limited access to abortion services in Montana and the impact the restriction on authorized providers has on the availability of those services. ¶5 The State submitted as its evidence a chart from the Montana Board of Nursing identifying and listing websites for the relevant national organizations that set standards for nurse practitioners and certified nurse midwives. It also submitted a one-page description of the scope of practice for nurse practitioners from the American Association of Nurse Practitioners and a one-page summary definition of midwifery and scope of practice of certified nurse-midwives and certified midwives from the American College of Nurse Midwives. The State pointed out that abortion is not listed within the scope of 5 practice in these documents, nor is it included in the Montana Board of Nursing’s administrative rules governing APRN standards and practice. ¶6 The District Court held that Plaintiffs were entitled to a preliminary injunction under § 27-19-201(2), MCA, because they had made a showing that enforcement of § 50-20-109(1)(a), MCA, prior to the conclusion of litigation would cause irreparable injury. STANDARDS OF REVIEW ¶7 We review the grant or denial of a preliminary injunction for manifest abuse of discretion. Davis v. Westphal, 2017 MT 276, ¶ 10, 389 Mont. 251, 405 P.3d 73. A manifest abuse of discretion is one that is “obvious, evident, or unmistakable.” Davis, ¶ 10 (quoting Shammel v. Canyon Res. Corp., 2003 MT 372, ¶ 12, 319 Mont. 132, 82 P.3d 912). “The grant or denial of injunctive relief is a matter within the broad discretion of the district court based on applicable findings of fact and conclusions of law.” Davis, ¶ 10 (citing Shammel, ¶ 11; Walker v. Warner, 228 Mont. 162, 166, 740 P.2d 1147, 1149-50 (1987)). To the extent the ruling is based on legal conclusions, “we review the district court’s conclusions of law to determine whether the interpretation of the law is correct.” City of Whitefish v. Bd. of Cty. Comm’rs of Flathead Cty., 2008 MT 436, ¶ 7, 347 Mont. 490, 199 P.3d 201. Issues of justiciability, such as standing and ripeness, also are questions of law, for which our review is de novo. Reichert v. State, 2012 MT 111, ¶ 20, 365 Mont. 92, 278 P.3d 455. 6 DISCUSSION ¶8 1. Do Weems and Doe have standing to challenge the statute? ¶9 Courts have power to resolve actual cases or controversies, requiring a plaintiff to show, “at an irreducible minimum,” that she “has suffered a past, present, or threatened injury to a property or civil right, and that the injury would be alleviated by successfully maintaining the action.” Schoof v. Nesbit, 2014 MT 6, ¶ 15, 373 Mont. 226, 316 P.3d 831 (internal quotations omitted). “A plaintiff’s standing may arise from an alleged violation of a constitutional or statutory right.” Mitchell v. Glacier County, 2017 MT 258, ¶ 11, 389 Mont. 122, 406 P.3d 427 (citing Schoof, ¶ 23). ¶10 The State argues that neither Weems nor Doe has standing to challenge § 50-20-109(1)(a), MCA, because abortion is outside their scope of practice. Irrespective of the statute, the State maintains that “[a]s of the issuance” of the District Court’s preliminary injunction order, the harm posited by the Plaintiffs was conjectural and hypothetical. The State maintains that the Plaintiffs have not presented an actual case or controversy because their scope of practice—with or without the statute—does not extend to abortion procedures. ¶11 The State’s standing argument is conjoined with its argument that the Plaintiffs’ request for a preliminary injunction was not ripe for adjudication. Standing and ripeness are separate but related inquiries within a court’s justiciability analysis: To meet the constitutional case-or-controversy requirement for standing, the plaintiff must clearly allege a past, present, or threatened injury to a property or civil right, and the injury must be one that would be alleviated by successfully maintaining the action. Note that standing may rest not only on past or present injury, but also on threatened injury.