Raphael Graybill*

Graybill Law Firm, PC

300 4th Street North
PO Box 3586
Great Falls, MT 59403
(406) 452-8566
[email protected] Peter Im**
Planned Parenthood Federation of America, Inc.
Tanis M. Holm 1110 Vermont Ave., N.W., Suite 300
Edmiston & Colton Law Firm Washington, D.C. 20005
310 Grand Ave. (202) 803-4096
Billings, Montana 59101 [email protected]
(406) 259-9986
[email protected] Dylan Cowit**
Planned Parenthood Federation of America, Inc.
123 William St., 9th Floor
New York, NY 10038
(212) 541-7800
[email protected]

Attorneys for Plaintiffs Planned Parenthood of

Montana and Samuel Dickman, M.D.
*Additional Counsel Listed on Next Page

MONTANA FIRST JUDICIAL DISTRICT COURT,

COUNTY OF LEWIS AND CLARK

PLANNED PARENTHOOD OF MONTANA; )

ALL FAMILIES HEALTHCARE; BLUE )
MOUNTAIN CLINIC; SAMUEL DICKMAN, )
M.D.; and HELEN WEEMS, APRN-FNP, on ) Cause No. ADV 2023-299
behalf of themselves and their patients )
) Hon. Mike Menahan
Plaintiffs, )
)
vs. ) VERIFIED AMENDED
) COMPLAINT AND PETITION
) FOR DECLARATORY RELIEF,
STATE OF MONTANA; MONTANA ) PERMANENT INJUNCTION,
DEPARTMENT OF PUBLIC HEALTH ) PRELIMINARY INJUNCTION,
AND HUMAN SERVICES; and CHARLIE ) AND TEMPORARY
BRERETON, in his official capacity as Director ) RESTRAINING ORDER
of the Department of Public Health and )
Human Services )
)
Defendants. )
Erin M. Erickson Hillary Schneller**
Bohyer, Erickson, Beaudette, Jen Samantha D. Rasay**
and Tranel P.C. Adria Bonillas**
283 West Front St., Suite 201 Center for Reproductive Rights
Missoula, MT 59802 199 Water Street, 22nd Floor
(406) 532-7800 New York, NY 10038
[email protected] (917) 637-3777
[email protected]
Akilah Deernose [email protected]
Alex Rate [email protected]
ACLU of Montana
PO Box 1986
Missoula, MT 59806 Attorneys for Plaintiffs All Families Healthcare,
(406) 203-3375 Blue Mountain Clinic, and Helen Weems, APRN-
[email protected] FNP
[email protected]
**Applications for admission
pro hac vice pending

1
 Plaintiffs Planned Parenthood of Montana (“PPMT”); All Families Healthcare (“All

Families”); Blue Mountain Clinic (“Blue Mountain”); Samuel Dickman, M.D.; and Helen

Weems, APRN-FNP (collectively, “Plaintiffs”) bring this Verified Amended Complaint on

behalf of themselves and their patients against the State of Montana; the Montana Department of

Public Health and Human Services (“DPHHS”); and Charlie Brereton, in his official capacity as

Director of DPHHS, and in support thereof state the following:

PRELIMINARY STATEMENT

1. Plaintiffs challenge an administrative rule and two statutes: a DPHHS rule amending

Mont. Admin. R. 37.82.102 and 37.86.104, which was proposed at Montana

Administrative Register (“MAR”) Notice 37-1024 and adopted as proposed in the

April 28, 2023, edition of the MAR (“the Rule”); 2023 House Bill 544 (“HB 544”),

which Governor Greg Gianforte signed on May 15, 2023, and will take effect on July

1, 2023; and 2023 House Bill 862 (“HB 862”), which Governor Gianforte signed on

May 16, 2023, and will take effect on July 1, 2023. See Notice of Public Hearing on a

Proposed Amendment (attached hereto as Exhibit A); Notice of Amendment

(attached hereto as Exhibit B); 1 HB 544, 2023 Leg. Reg. Sess. (Mont. 2023) (to be

codified in Mont. Code Ann. tit. 53, ch. 6, pt. 1) (attached hereto as Exhibit C); HB

862, 2023 Leg. Reg. Sess. (Mont. 2023) (to be codified in Mont. Code Ann. tit. 17)

(attached hereto as Exhibit D).

2. The Rule, HB 544, and HB 862 each have the purpose and effect of preventing low-

income Montanans from accessing abortions. The Rule and HB 544 both prevent

1
The Notice of Amendment, which was published in the MAR on April 28, 2023,
provides that the Rule will be adopted as proposed and therefore does not include a new final
version of the Rule. Thus, the proposed rule in Exhibit A is the final version of the Rule.

2
 Medicaid patients 2 from accessing abortions by narrowing the definition of medical

necessity for abortions and by imposing onerous and medically unnecessary

administrative requirements. HB 862 goes even further, banning altogether Medicaid

coverage of medically necessary abortions except in cases involving rape, incest, or

risk of death to the pregnant person. Because it is extremely rare for an abortion

covered by Medicaid to fall into either of these categories, HB 862 would effectively

end Medicaid coverage of abortions in Montana.

3. The Rule, HB 544, and HB 862 each clearly violate the Montana Constitution and

legal precedent of this Court and the Montana Supreme Court. See Jeannette R. v.

Ellery, No. BDV-94-811, 1995 WL 17959705 (1st Jud. Dist., May 22, 1995)

(Medicaid may not exclude coverage for medically necessary abortions); Armstrong

v. State, 1999 MT 261, 296 Mont. 361, 989 P.2d 364 (restrictions on abortion access

trigger strict scrutiny, and ban on physician assistants providing abortions does not

withstand strict scrutiny); Weems v. State (“Weems I”), 2019 MT 98, 395 Mont. 350,

440 P.3d 4 (physician and physician assistant-only law violates strict scrutiny); and

Weems v. State (“Weems II”), 2023 MT 82, ___ Mont. ___, ___ P.3d ___, 2023 WL

3400808 (same). The Rule also violates the Montana Administrative Procedure Act

(“MAPA”).

4. Montana has a comprehensive health coverage scheme for its low-income residents.

Through its medical assistance program, Montana Medicaid, the State funds all

covered services. And for nearly twenty years, DPHHS has included medically

2
References to “Medicaid patients” or “Montanans on Medicaid” herein are intended to
include all Montanans eligible for Medicaid, including not only Montanans currently enrolled in
Medicaid, but all low-income people who are eligible to enroll.

3
 necessary abortion services among those covered services, as required by Jeannette

R.

5. The Rule and HB 544 impose several onerous and medically unnecessary additional

restrictions on this most vulnerable patient population. They ban Medicaid coverage

for abortions provided by advanced practice clinicians (“APCs”) such as physician

assistants and nurse practitioners, even though APCs currently provide a majority of

abortions in the state. This directly contravenes Armstrong, Weems I, and Weems II,

which held that barring Montanans from accessing abortions from APCs violates the

Montana Constitution.

6. The Rule and HB 544 require prior authorization from DPHHS before an abortion

can be provided to Medicaid patients—a process that, despite the time-sensitive

nature of abortion, is not time-bound and imposes a de facto waiting period on access

to care. They also require Medicaid patients to undergo an in-person physical

examination before getting an abortion. As a result, the Rule and HB 544 will

eliminate access to abortion via direct-to-patient telehealth for Medicaid-eligible

Montanans and force patients who already face significant economic hardship to

make an unnecessary in-person visit to a clinic. As this Court recognized when it

granted a preliminary injunction in Planned Parenthood of Montana v. State by &

through Knudsen, No. DV-21-0999, 2021 WL 9038524 (13th Jud. Dist., Oct. 7,

2021), which was affirmed by the Montana Supreme Court in Planned Parenthood of

Montana v. State by & through Knudsen (“PPMT v. State”), 2022 MT 157, 409 Mont.

378, 515 P.3d 301, laws that require patients to make an unnecessary in-person visit

to receive a physical exam—thereby also imposing a ban on direct-to-patient

4
 telehealth for abortion and a de facto waiting period—violate the Montana

Constitution.

7. In contravention of Jeannette R., the Rule imposes on abortions a new and narrow

definition of “medically necessary service,” singling out for differential treatment

low-income Montanans seeking abortions and their providers. HB 544 contains a

definition of “medically necessary service” for abortions that is even narrower than

the definition contained in the Rule.

8. HB 862 goes even further, altogether banning Medicaid coverage of medically

necessary abortions except in cases involving rape or incest or risk of death to the

pregnant person. This also directly contravenes Jeannette R.

9. Montanans impacted by the Rule, HB 544, and HB 862 are by definition low-income,

and for most of them, the denial of coverage is tantamount to a ban. The Rule and the

statutes will thus force the most vulnerable in the state to continue their pregnancies

and give birth, with all of the emotional, physical, and life-altering consequences this

entails. Even those eligible for reimbursement who manage to reach one of the few

physicians whom Medicaid will continue to reimburse for abortions—and who also

manage to go through the prior authorization process—will be able to do so only after

facing significant logistical and financial challenges and delay, during which they will

be forced to continue to experience the symptoms and risks of pregnancy.

10. At a time when abortion access in Montana and throughout the nation is in peril, the

Rule, HB 544, and HB 862 single out the poorest Montanans for denial of access to

medically necessary abortions.

5
11. The Rule was adopted on April 28, 2023 and would have taken effect on May 1, but

was blocked by this Court. Ex. B at 18. HB 544 and HB 862 were signed on May 15

and 16, 2023, respectively, and will take effect on July 1. Ex. C at 4, Ex. D at 1.

12. Undersigned counsel for Plaintiffs twice asked DPHHS to consider delaying the

effective date of the Rule to 90 days after publication of the adoption notice or

stipulating to a stay of enforcement of the Rule to allow Plaintiffs time to seek

judicial relief in an orderly, non-emergency fashion; both times, the agency refused.

See Jan. 23, 2023 Letter to DPHHS (attached hereto as Exhibit E); Jan. 25, 2023

Email from Paula Stannard (attached hereto as Exhibit F); April 21, 2023 Letter to

DPHHS (attached hereto as Exhibit G); April 26, 2023 Letter from Paula Stannard

(attached hereto as Exhibit H).

PARTIES

13. Plaintiff PPMT is a not-for-profit corporation organized under the laws of Montana.

It is headquartered in Billings and operates five health centers: two in Billings

(Planned Parenthood Heights and Planned Parenthood West), one in Missoula, one in

Great Falls, and one in Helena. Planned Parenthood Heights is temporarily closed

because of flooding damage.

14. PPMT provides a wide array of clinical, educational, and counseling services. It is the

largest provider of reproductive health care in Montana, serving more than 11,000

people annually. PPMT provides a wide array of medical services, including abortion.

It provides medication abortions (both in person and via telehealth) through 11

weeks, as measured from the first day of the last menstrual period (“LMP”), and

procedural abortions through 21 weeks and 6 days (“21.6 weeks”) LMP.

6
15. Providing low-income Montanans with access to sexual and reproductive health

services is a critical part of PPMT’s mission, and a significant portion of PPMT’s

patient population is low-income. Of all abortions provided at PPMT in 2022, 45%

were covered by Medicaid.

16. Plaintiff Samuel Dickman, M.D., is a Medicaid-enrolled physician licensed to

practice medicine in Montana. At PPMT, Dr. Dickman provides medication abortions

through 11 weeks LMP and procedural abortions through 21.6 weeks LMP.

17. Plaintiff All Families is a for-profit corporation and a sexual and reproductive health

clinic in Whitefish that provides LGBTQ+ care and gender-affirming care for

transgender people, gynecological exams, diagnosis and treatment of sexually

transmitted infections, contraception, and abortion care. All Families has been serving

the Flathead Valley and patients across Montana since it opened in 2018 and serves

approximately 600 patients annually, accounting for nearly 2,000 patient visits. All

Families provides medication abortions (in person and via telehealth) up to 11 weeks

LMP and procedural abortions up to 12.6 weeks LMP. More than half of patients

seeking abortions at All Families are insured through Medicaid.

18. Plaintiff Helen Weems is a Medicaid-enrolled certified nurse practitioner licensed to

practice in Montana with over 20 years of clinical experience. She owns All Families

and is its sole clinician. Ms. Weems is also the sole abortion provider in the Flathead

Valley.

19. Plaintiff Blue Mountain is a not-for-profit family practice in Missoula. Blue Mountain

Women’s Clinic first opened in 1977 as the first and only abortion clinic in Montana.

In 1991, Blue Mountain expanded its health services to include comprehensive family

7
 medical care to better serve its community. Blue Mountain serves 3,500 patients

annually, accounting for 7,000 visits. It provides care across the lifespan, from

pediatric care to elder care, including wellness exams, contraception, abortion care,

and gynecological care. Blue Mountain provides medication abortions (in person and

via telehealth) up to 11 weeks LMP and procedural abortions up to 21.6 weeks LMP.

Almost 40% of patients seeking abortion care at Blue Mountain are insured through

Medicaid.

20. Plaintiffs participate in the Montana Medicaid program and receive reimbursement

for medically necessary medication abortions using mifepristone up to 10 weeks LMP

and medically necessary procedural abortions up to 21.6 weeks LMP that they

provide to Montanans on Medicaid. Plaintiffs sue on their own behalf; on behalf of

their current and future clinicians, servants, officers, and agents; and on behalf of

their patients.

21. Defendant State of Montana is a governmental entity subject to suit for injuries to

persons. Mont. Const. art. II, § 18.

22. Defendant DPHHS is a governmental entity subject to suit for injuries to persons.

Mont. Const. art. II, § 18. DPHHS administers the Montana Medicaid program,

including prior authorization and coverage for medical care. DPHHS promulgated

and would enforce the Rule, HB 544, and HB 862 unless restrained by this Court.

23. Defendant Charlie Brereton is the Director of DPHHS. He oversees DPHHS’s role in

Montana Medicaid and will be responsible for enforcing the Rule, HB 544, and HB

862 unless restrained by this Court. Director Brereton is sued in his official capacity.

8
 JURISDICTION AND VENUE

24. Jurisdiction is conferred on this Court by article VII, section 4 of the Montana

Constitution and § 3-5-302, MCA.

25. Plaintiffs’ claims for declaratory and injunctive relief are authorized by § 27-8-101 et

seq., MCA, as well as the general equitable powers of this Court.

26. Plaintiffs’ claims for judicial review are authorized by MAPA, §§ 2-4-101 et seq.,

MCA.

27. Venue is appropriate pursuant to §§ 25-2-126, 25-2-117, MCA, because the State of

Montana is a Defendant and PPMT operates a health center in Helena, County of

Lewis and Clark, that provides abortions to Montanans eligible for Medicaid.

STANDING

28. Plaintiffs have standing to bring the claims asserted in this Verified Amended

Complaint because the challenged Rule and statutes infringe on the rights of

Plaintiffs’ patients under the Montana Constitution and state law.

29. “[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.” Weems I, ¶ 12 (quoting Armstrong, ¶¶ 8–13).

30. Plaintiffs also have standing to bring their own claims because the challenged

provisions directly infringe on Plaintiffs’ rights under the Montana Constitution. See

id. at ¶ 14 (holding that abortion provider plaintiffs who “are impacted by the statute”

have standing to challenge it). But for the challenged provisions, Plaintiffs would

provide abortion services to Medicaid-eligible Montanans and would make decisions

regarding the medical necessity of those services according to their own medical

9
 judgments, rather than DPHHS’s, as they have properly done since 1995 in

accordance with Jeannette R.

FACTUAL ALLEGATIONS

A. Abortion

31. Abortion, by medication or procedure, is safe and common.

32. Abortion is safer than carrying a pregnancy to term; the risk of death associated with

childbirth is approximately 13 times higher than that associated with abortion.

Pregnancy-related complications are also more common among people having a live

birth than those who get an abortion.

33. Abortion is time-sensitive health care. It is safe throughout pregnancy, but the risk

increases incrementally as a pregnancy progresses.

34. Medication abortion is typically provided via a two-drug regimen, which consists of

one dose of mifepristone followed up to 72 hours later by one dose of misoprostol; it

can also be provided using misoprostol alone. The medication causes the person to

pass the pregnancy in a process similar to a miscarriage.

35. Aspiration abortion is the most common technique for early procedural abortions. A

clinician dilates the patient’s cervix, inserts a thin tube into the uterus, and evacuates

the pregnancy. Aspiration abortion usually takes less than ten minutes to complete.

36. For procedural abortions beginning at approximately 15 weeks LMP, clinicians often

perform a dilation and evacuation procedure, which involves dilation of the cervix,

followed by removal of the pregnancy using a combination of aspiration and

instruments, and typically takes less than 30 minutes.

10
 37. Both types of procedural abortion take place in an outpatient setting and are

comparable to other reproductive health care procedures, including insertion and

removal of intrauterine devices (a long-acting, reversible method of birth control).

Miscarriage management is also nearly identical to abortion care, and can be provided

through the same medication or procedures.

38. Plaintiffs also all provide medication abortion via telehealth. All three provide direct-

to-patient telehealth medication abortion, in which a provider meets with a patient via

a telehealth visit, confirms that the patient is eligible for medication abortion, and

obtains informed consent. The medications are then mailed to the patient at a

Montana address. In addition, PPMT provides “site-to-site” telehealth medication

abortions, in which a patient at one health center connects via teleconference with an

abortion provider at another PPMT health center.

B. Advanced Practice Clinicians

39. For years, APCs have provided safe and effective abortions in Montana, including for

Montanans insured through Medicaid.

40. Plaintiffs rely heavily on APCs to provide abortions to their patients.

41. Helen Weems is a nurse practitioner, not a physician. She is the only clinician at All

Families and provides all of the abortions sought by its patients. In 2022, more than

half of All Families’ abortion patients were insured through Medicaid.

42. Blue Mountain has one full-time physician and two physician assistants who provide

abortion care. Blue Mountain also has one contract physician who provides abortion

care infrequently. In 2022, the physician assistants at Blue Mountain provided

11
 approximately 24% of all the abortions covered by Medicaid, including 42% of the

medication abortions covered by Medicaid.

43. In 2022, approximately 85% of abortions covered by Medicaid at PPMT were

provided by APCs.

44. Montana courts have repeatedly held that restricting the provision of abortion to only

physicians violates Montanans’ individual right to access abortion from a chosen

provider––including a chosen APC. See Armstrong, (holding unconstitutional statute

that restricted provision of abortion to physicians only); Weems I (affirming

preliminary injunction against statute that restricted provision of abortion to

physicians and physician assistants only); Weems II (affirming permanent injunction

against same statute).

C. Medicaid in Montana

45. Montana provides medical assistance to low-income residents through Medicaid,

which is jointly funded by the state and federal governments. Section 53-6-101 et

seq., MCA.

46. The Montana Medicaid program was “established for the purpose of providing

necessary medical services to eligible persons who have need for medical assistance.”

Section 53-6-101(1), MCA. When considering changes in Medicaid policy, DPHHS

is required to consider the “funding principle” of “protecting those persons who are

most vulnerable and most in need, as defined by a combination of economic, social,

and medical circumstances.” Section 53-6-101(2)(a), MCA.

47. Since the mid-1970s, Congress has adopted versions of the Hyde Amendment

restricting federal funding for abortions. Today, federal Medicaid coverage is only

12
 available for abortions if the pregnancy results from rape or incest or if the abortion is

necessary to save the pregnant person’s life. DPHHS receives federal Medicaid

dollars for its coverage of such abortions.

48. Despite restrictions on the use of federal Medicaid funding for abortions, state

Medicaid programs may use state funds to reimburse abortion care. Before 1995,

Montana’s Medicaid program did not cover abortions beyond those permitted by the

Hyde Amendment.

49. In Jeannette R., this Court held that the pre-1995 administrative restrictions on

Medicaid’s coverage of abortions, which were similar to the restrictions at issue here,

violated the Montana Constitution’s guarantees of privacy and equal protection. It

also held that imposing such restrictions via regulation exceeded the agency’s

authority. As required by the holding in Jeannette R., DPHHS currently reimburses

Plaintiffs for medically necessary abortion services using only state funds.

50. DPHHS is authorized to “make rules, consistent with state and federal law,

establishing the amount, scope, and duration of services to be provided to recipients

of public assistance,” § 53-2-201(2)(c), MCA (emphasis added), including rules

governing the Medicaid program, see § 53-6-113, MCA.

51. DPHHS regulations currently define a “medically necessary service” as

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;

13
 (iv) threaten to cause or aggravate a handicap; or

(v) cause physical deformity or malfunction.

Mont. Admin. R. 37.82.102(18). This rule applies generally to all medical care

covered by Medicaid.

52. Currently, for every abortion covered by Medicaid, the provider completes a

certification known as the “MA-037” form, on which the provider indicates (1) if the

abortion was necessary to save the patient’s life, (2) if the pregnancy resulted from

rape or incest, or (3) if the abortion was medically necessary but the patient’s life was

not in danger. If the third category is selected, the provider includes an explanation

for why the abortion is medically necessary. DPHHS does not currently require any

additional documentation of medical necessity for abortion or for any other

gynecological care sought by Medicaid patients.

53. The vast majority of abortions fall into the third category of medically necessary

abortions. It is extraordinarily rare for an abortion covered by Medicaid to be reported

as necessary to save the patient’s life or to terminate a pregnancy that was the result

of rape or incest. According to the State’s declarant in connection with their

opposition to Plaintiffs’ application for a preliminary injunction, during the 10-year

period from July 2011 to June 2021, there were only six abortions that were reported

as falling into these categories. Randol Aff. ¶ 15.

D. Procedural History of the Rule

54. DPHHS certified the proposed version of the Rule to the Secretary of State on

December 13, 2022, and the proposed rule was published at MAR Notice 37-1024 on

December 23, 2022.

14
55. On January 12, 2023, DPHHS held a public hearing on the Rule via teleconference.

The only proponent of the Rule was a representative of the Montana Family

Foundation. In contrast, over two dozen affected community members offered

testimony in opposition, addressing the devastating consequences of erecting barriers

to, and effectively banning, access to abortion for most Medicaid-eligible Montanans.

Dr. Dickman, Ms. Weems, and Nicole Smith (Executive Director of Blue Mountain)

spoke in opposition to the Rule on behalf of PPMT, All Families, and Blue Mountain,

respectively.

56. On January 19, 2023, Martha Fuller (President and CEO of PPMT) and Dr. Dickman

submitted joint written comments opposing the adoption of the Rule. On January 20,

2023, Ms. Weems and Ms. Smith submitted written comments on behalf of All

Families and Blue Mountain, respectively.

57. DPHHS received dozens of written comments regarding the Rule. See generally Ex.

B.

58. On January 23, 2023, undersigned counsel asked the agency to consider delaying the

Rule’s effective date to 90 days after publication of the adoption notice or stipulating

to a stay of enforcement. See Ex. E. The agency refused. See Ex. F.

59. On April 18, 2023, DPHHS certified a Notice of Amendment to the Secretary of

State. See Ex. B. Despite the numerous comments, DPHHS stated that the final

version of the Rule amends Mont. Admin. R. 37.82.102 and 37.86.104 “as proposed.”

Pursuant to Mont. Admin. R. 1.2.419(1), the Rule was published in the April 28,

2023, edition of the MAR. Had the Court not issued a temporary restraining order, the

Rule would have taken effect on May 1, 2023. Ex. B at 18.

15
60. The Notice of Amendment also included DPHHS’s responses to the comments it

received regarding the Rule. See generally id.

61. On April 19, 2023, after learning that DPHHS had certified a final version of the Rule

to the Secretary of State and submitted it for publication, undersigned counsel

contacted Paula Stannard, Chief Legal Counsel for DPHHS, and requested a copy of

the Rule, citing the Public Records Act, § 2-6-1002, MCA, and the Montana

Constitution’s guarantee of the right to observe agency deliberations, Mont. Const.

art. II, § 18. See April 19, 2023 Letter to DPHHS (attached hereto as Exhibit I).

62. On April 20, 2023, Stannard responded, flatly refusing to provide a copy of the final

version of the Rule and asserting that the publication of the Rule in the MAR one

business day before it becomes effective “satisfies the constitutional and statutory

public records/public information requirements.” See April 20, 2023 Letter from

DPHHS (attached hereto as Exhibit J).

63. On April 21, 2023, undersigned counsel contacted Stannard, explaining that the single

business day between publication and the effective date of the Rule does not give

abortion providers enough time to undertake the planning necessary to comply with

the Rule, in particular any changes that could have been made to the Rule made since

it was proposed. Counsel requested that DPHHS consider delaying the effective date

of the Rule to 90 days after publication of the adoption notice or stipulating to a stay

of enforcement of the Rule pending a court ruling on Plaintiffs’ request for relief. See

Ex. G. Stannard refused. See Ex. H.

16
E. The Rule

64. The Rule provides that abortions reimbursed by Medicaid “must be performed by a

physician as defined in 37-3-102, MCA,” Ex. A at 2355, which defines physician, in

relevant part, as “a person who holds a degree as a doctor of medicine . . . and who

has a valid license to practice medicine . . . in this state,” Section 37-3-102(12),

MCA. The Rule therefore categorically bars Medicaid coverage for abortions

provided by APCs, including physician assistants, nurse practitioners, and nurse

midwives.

65. The Rule also requires Medicaid-eligible Montanans seeking abortions to get prior

authorization from DPHHS. If an abortion is either necessary to prevent

endangerment to the life of the pregnant person or is medically necessary, the Rule

requires the provider to submit extensive supplemental documentation, including

highly personal information such as, inter alia, an extensive medical history, the

results of a physical exam, images of ultrasounds, and “documentation that the

diagnosis of the physical or psychological condition leading to the medical necessity

determination has been made by a medical professional qualified by education,

training, and/or experience to make such diagnosis and that the woman is receiving

care for such condition.” Ex. A at 2354–55.

66. Prior authorization is not required for “treatments for incomplete abortions,

miscarriages, or septic abortions.” Id.

67. The Rule provides no limitation on the amount of time that DPHHS may take to

decide whether Medicaid will approve or deny coverage for an abortion.

17
68. The Rule narrows the generally applicable definition of “medically necessary service”

in Mont. Admin. R. 37.82.102(18)(a) for abortions but for no other services. It

provides:

Abortion is a medically necessary service and eligible for coverage

under the Montana Medicaid program 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.

Ex. A at 2354.

69. This redefinition applies only to abortion, meaning that Medicaid-eligible Montanans

whose care is medically necessary under the general definition of the term could be

denied coverage solely because they are seeking an abortion and not another type of

medical care.

70. To justify these restrictions, the Rule states that, at the request of the Montana

Legislature, DPHHS hired a contractor to conduct a review of abortion claims paid by

Montana Medicaid. The contractor found 100% compliance with the requirement to

certify that abortions covered by Medicaid are medically necessary. The contractor

did not find any claims for abortions that it did not believe were medically necessary.

18
 71. Nonetheless, DPHHS concluded that the MA-037 forms used to certify the medical

necessity of abortion care covered by Medicaid “lack[ed] sufficient information to

support medical necessity” because certain medical conditions were “routinely

indicated.” Ex. A at 2357. DPHHS noted that some MA-037 forms included

additional documentation beyond the form’s required “brief narrative.” Id.

Counterintuitively, on this basis, DPHHS concluded that compliant forms that did not

include additional, non-required information could be inaccurate. In other words,

despite perfect compliance with its own requirements, DPHHS used the fact that

some forms had provided additional information to conclude that more regulatory

burdens were necessary.

F. HB 544

72. HB 544 was enacted by the Legislature on April 25, 2023, and signed by the

Governor on May 15, 2023. It is entitled “An Act Providing Requirements for

Coverage of Physician Services for Abortion Under the Medicaid and Children’s

Health Insurance Programs; Providing for Prior Authorization; Providing that Only

Abortion Services Provided by a Physician are Covered Services; Amending Section

53-4-1005, MCA; and Providing an Effective Date.”

73. HB 544 includes a physician-only requirement and a prior authorization requirement

that are functionally identical to those in the Rule.

74. HB 544 contains an even narrower definition of medical necessity than the Rule:

a physician shall certify that, although the woman is not in danger

of death unless an abortion is performed, the woman 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.

19
 Ex. C at 1. In particular, this definition further restricts Medicaid coverage for

abortions needed for mental health reasons, replacing “psychological condition” in

the Rule’s definition with “a severe mental illness or intellectual disability.”

75. HB 544 also amends § 53-4-1005, MCA, regarding benefits under the Montana’s

Children’s Health Insurance Program (“CHIP”), also known as the Healthy Montana

Kids Plan, Mont. Admin. R. 37.79.101, to require CHIP to comply with the

requirements of HB 544.

76. In a fiscal note accompanying HB 544, the State estimates the cost of implementing

the prior authorization requirement. See Fiscal Note to HB 544 (attached hereto as

Exhibit K). It states that, “[b]ased on an informal quote from a vendor, it is estimated

enhanced documentation and prior authorization costs will be $965 per case,” id. at 2,

which far exceeds the typical cost of an abortion.

G. HB 862

77. HB 862 was enacted by the Legislature on April 25, 2023, and signed by the

Governor on May 16, 2023. It is entitled “an Act Prohibiting the Use of Public Funds

for Abortion; Providing Exceptions; Providing an Appropriation; and Providing an

Effective Date.”

78. HB 862 provides that “[p]ublic funds or money may not be expended for an abortion”

unless “the pregnancy is the result of an act of rape or incest” or if “a woman suffers

from a physical disorder, physical injury, or physical illness . . . that would, as

certified by a physician, place the woman in danger of death unless an abortion is

performed.” Ex. D at 1. It includes no exception for medically necessary abortions.

20
 H. The Impacts of the Medicaid Abortion Restrictions

79. The restrictions will deny access to abortion for Medicaid-eligible Montanans, who

make up a large share of Plaintiffs’ abortion patients. In 2022, 45% of abortions at

PPMT were covered by Medicaid. That same year, over 50% of patients for whom

All Families provided abortion care were insured through Medicaid. And

approximately 40% of the abortion care provided at Blue Mountain was for Medicaid

patients.

80. Denying access to abortion has severe consequences for pregnant Medicaid patients.

In addition to the cost of the care itself, many Montanans travel significant distances

to obtain abortions, particularly procedural abortions, thus incurring additional costs

for transportation and sometimes lodging. At PPMT, for example, it is not unusual for

patients to drive upwards of five hours to access care.

81. Absent state assistance, low-income pregnant people face great difficulty paying for

abortions and related expenses and will be forced to draw on limited financial

resources that they need for food, rent, clothing, and other essentials to pay for an

abortion. Many will have to delay the abortion to raise the money.

1. Impact of the Physician-Only Requirements 3

82. Access to safe and timely abortions from a qualified provider of the patient’s

choosing is an important component of public health and is a fundamental right under

the Montana Constitution. Armstrong, ¶ 66.

83. The Rule and HB 544 severely limit the providers available to Medicaid-eligible

Montanans by effectively banning APCs from providing abortions to them,

3
Because the Rule and HB 544 include functionally identical physician-only and prior
authorization requirements and similar redefinitions of “medically necessary service,” their
impacts are addressed jointly.

21
 notwithstanding decisions by this Court and the Montana Supreme Court that prohibit

the State from banning qualified APCs from providing that care. Weems I; Weems II.

PPMT, All Families, and Blue Mountain—which represent all of the in-person

abortion providers operating in Montana—employ a total of two full-time physicians

and two part-time contract physicians between them. These physicians provide

abortions only in Helena and Missoula, so all Medicaid-eligible abortion patients will

be forced to travel to Helena or Missoula to access care.

84. At All Families, Ms. Weems, a nurse practitioner, is the only abortion provider, so the

Rule and HB 544 will prevent Medicaid patients from accessing abortion care at All

Families, full stop. All Families is in Whitefish and is the only provider in the

Flathead Valley.

85. Moreover, without Medicaid coverage for abortion care, which makes up a

substantial part of All Families’ practice, the Rule and HB 544 may force All

Families to close. The Flathead Valley would once again be without any abortion

provider, and the community would also lose critical access to safe and confidential

contraception, STI testing, and LGBTQ+ care.

86. PPMT employs only one physician full-time—Dr. Dickman—and he only provides

abortions two days per month. PPMT also employs a contract physician who provides

abortions one day per month. The physician-only requirement will dramatically

decrease abortion access for patients at PPMT.

87. PPMT physicians only provide abortions in Helena and Missoula. The Rule and HB

544’s physician-only provisions will thus end abortion access in Billings and Great

22
 Falls, where PPMT operates the only abortion clinics and relies on APCs to provide

abortion services to patients.

88. Blue Mountain has one physician who regularly provides abortions. That physician

also maintains a full family practice. The physician-only requirement will

dramatically decrease access to abortion care for Blue Mountain and also impact its

family practice patients, for whom there is already a considerable wait.

89. DPHHS has designated 52 of Montana’s 56 counties as health professional shortage

areas. 4 Given the shortage of abortion providers in the state, it would be logistically

and financially infeasible for Plaintiffs to hire more full-time physicians to meet the

increased need for physicians if the Rule and HB 544 were to take effect.

90. The Rule and HB 544 will therefore severely limit availability for abortions for

Medicaid patients and force patients outside of Helena and Missoula to travel much

farther to receive care. It will also prevent Medicaid patients from receiving care from

their trusted and qualified chosen providers.

91. In response to a comment about the physician-only requirement, DPHHS states that

the “rules do not preclude advanced practice nurses and physician assistants from

performing abortions if they are otherwise legally entitled to do so,” Ex. B at 10,

suggesting that the Rule is not a categorical bar because APCs can provide abortions

for Medicaid recipients without getting reimbursed. But barring Medicaid

reimbursement for services provided by APCs is in effect the same as barring

Medicaid-eligible Montanans from accessing those services from APCs, and it

4
Montana Health Professional Shortage Area (HPSA) Designations, Mont. Dep’t of Pub.
Health & Hum. Servs., https://dphhs.mt.gov/ecfsd/primarycare/shortageareadesignations.

23
 infringes on their right to get an abortion from their chosen provider as recognized in

Armstrong, Weems I, and Weems II.

2. Impact of the Prior Authorization Requirements

92. The prior authorization requirements in the Rule and HB 544—including the onerous

and medically unnecessary in-person physical exam—effectively ban the provision of

medication abortion via direct-to-patient telehealth for Medicaid patients. Telehealth

improves access for rural patients, patients with disabilities, and patients with limited

access to transportation. Over half of the abortions that All Families provides are via

telehealth. In 2022, 28% of the abortions PPMT provided that were covered by

Medicaid were provided via telehealth.

93. The Montana Supreme Court recently affirmed a preliminary injunction against

another attempt by the State to ban medication abortion services via telehealth,

recognizing that such restrictions are unconstitutional. See PPMT v. State, ¶ 51.

DPHHS cannot circumvent this preliminary injunction by issuing a rule banning

telehealth for Montanans eligible for Medicaid, and the Legislature cannot

circumvent it by enacting a statute doing the same thing.

94. The prior authorization process involves onerous and invasive paperwork

requirements and a physical examination that is not in line with the standard of care.

95. In the Notice of Amendment, DPHHS states that its contract with its Medicaid

utilization review contractor requires completion of the prior authorization review

“within three working days, considering the submission of timely and accurate

documentation” and characterizes this delay as “add[ing] only minimal time to the

process.” Ex. B at 4–5. But even if a third-party contract requires the process to be

24
 completed in three working days, the Rule itself contains no such requirement. And

the three-day clock does not even begin to run until all information is submitted—a

clerical error could mean the information is incomplete, or the reviewer could

arbitrarily seek additional information, causing further delay.

96. Three working days could also stretch to five or more calendar days when there is an

intervening weekend or long weekend. Because of the time-sensitive nature of

abortion and the increased risks and costs of care as pregnancy progresses, any delay

for a patient waiting for an abortion is significant.

97. Indeed, if the entire prior authorization process––including approval or denial––takes

longer than one day (or even if it is provided in one day but takes too long for the

abortion to be provided that same day), then it will delay the abortion and force

patients to endure the continuing symptoms and risks of pregnancy. DPHHS does not

even assert that it will try to complete the prior authorization process in one day.

98. Thus, the Rule and HB 544’s prior authorization requirements impose a de facto

waiting period for Medicaid patients seeking abortions.

99. Further, the requirement for a physical examination during the prior authorization

process will force Medicaid patients seeking abortions to make an additional visit to a

health center. Medicaid patients who now do not need to make a single in-person visit

because they receive medication abortion via direct-to-patient telehealth will be

forced to make a medically unnecessary in-person visit. Similarly, patients who can

now receive an abortion in one in-person visit will be forced to visit the clinic yet

another time beforehand to complete the required physical examination and other

prior authorization requirements.

25
100. Additional-trip requirements have been shown to have devastating effects on

access to abortion, including preventing some patients from accessing care entirely.

This is especially true for those who may have inflexible work schedules or

caretaking responsibilities, do not have reliable access to transportation, or are

victims of intimate partner violence.

101. The interaction between the prior authorization requirements and physician-only

requirements will further delay abortions for Medicaid-eligible Montanans. At PPMT

for example, because of limited physician availability and scheduling issues, the time

between physician appointments can be from one to three weeks. Even if DPHHS

approves a prior authorization request in three business days, a second appointment

with a physician may not be available for another one to three weeks. And if DPHHS

does not approve the request by the next available physician appointment, a patient

could have to wait yet another one to three weeks. These delays will increase risks to

patients.

102. If DPHHS denies a request for prior authorization, the Rule and HB 544 provide

no indication of how long the appeal process may take. Again, because abortion is

time-sensitive, any delay resulting from an administrative appeal would impose

additional medical risks on patients. A delay could also push a patient beyond the

window during which they can obtain care.

103. Under the Rule and HB 544, a patient can be denied coverage because of their

inability to comply with the paperwork requirements or because a bureaucrat—or a

third-party contractor—second-guesses their health care provider’s medical judgment.

26
104. The Rule provides that “[i]f prior authorization is not obtained, due to an

emergency situation or otherwise, a claim for payment for such physician services

will undergo post-service, prepayment review.” Ex. A at 2354. In the Notice of

Amendment, DPHHS points to this provision in response to multiple commenters’

concern that the Rule will force Medicaid-eligible Montanans to delay their abortions

unnecessarily. Ex. B at 4. To the extent that this provision permits Plaintiffs to

provide abortions before receiving prior authorization, it forces them to choose

between (1) delaying abortions for Medicaid-eligible Montanans to wait for a prior

authorization that the Rule states is “require[d],” Ex. A at 2354, or (2) providing care

without knowing whether they will be reimbursed for it.

105. HB 544 similarly provides that “[i]f prior authorization is not obtained because of

an emergency, a claim for payment must undergo post-service, prepayment review.”

Ex. C at 1. HB 544 does not state that post-service, prepayment review is ever

available in situations other than emergencies.

3. Impact of the Redefinition of “Medically Necessary”

106. Under Jeannette R., the Montana Constitution requires DPHHS to cover

medically necessary abortions and forbids singling out for differential treatment low-

income Montanans seeking abortions. DPHHS cannot circumvent this constitutional

requirement by narrowing the definition of medical necessity solely for abortions.

107. The Rule and HB 544 narrow the definition of “medically necessary” for

abortions alone. This will deny Medicaid-eligible Montanans access to abortions that

a health care provider has deemed medically necessary under the definition of

medical necessity that applies for every other medical procedure.

27
108. For example, the redefinition of medical necessity excludes abortions in cases

involving lethal fetal conditions or diagnoses. In response to several comments

raising this concern, DPHHS confirmed that under the Rule, Medicaid coverage

would not be available in these cases if the abortion does not separately meet the

narrow new definition of medical necessity. Ex. B at 17.

109. The Rule and HB 544’s requirements will result in needless delays for Medicaid-

eligible Montanans seeking an abortion: delays caused by forcing patients to wait for

an appointment with a physician when a qualified APC would otherwise have been

available; by forcing them to undergo an in-person, medically unnecessary physical

examination when they could have been seen via telehealth; by forcing them to wait

for prior authorization for a procedure that their health care provider has already

deemed medically necessary; and if the prior authorization is eventually denied, by

forcing them to raise money for an abortion.

4. Impact of HB 862

110. HB 862 denies Medicaid coverage for medically necessary abortions in Montana

that are not the result of rape or incest and do not create a risk of death to the pregnant

person. Between July 2011 and June 2021, only six abortions covered by Medicaid

were reported as falling into these categories in the entire state.

111. Under HB 862, Medicaid would not cover abortions that severely endanger the

health of the pregnant person but do not rise to the level of creating a risk of death.

This will leave Medicaid patients suffering from serious harm to their health unable

to get abortions that they need.

28
112. Under HB 862, Medicaid also would not cover abortions in cases of lethal fetal

conditions or diagnoses, in some cases forcing Medicaid-eligible Montanans to carry

pregnancies to term even if there is no chance the fetus will survive.

****

113. The inevitable result of these unnecessary and unjustified hurdles will be to force

many Medicaid patients to carry a pregnancy to term, even though an abortion was

medically necessary in the judgment of their health care provider.

114. The State of Montana, DPHHS, and Director Brereton are aware that the Rule

violates the Montana Constitution and decisions of this Court and the Montana

Supreme Court and have elected to promulgate the Rule anyway. Numerous

commenters raised the Rule’s constitutional infirmities, Ex. B at 1, but the agency has

chosen to proceed undeterred and adopt the Rule unchanged. And the Legislature has

enacted HB 544 and HB 862 despite their unconstitutionality.

115. The effect of the Rule, HB 544, and HB 862 is to prevent Montanans with low

incomes from accessing abortion.

CLAIMS FOR RELIEF

First Claim
Violation of the Right to Privacy
Of Article II, Section 10 of the Montana Constitution

116. Plaintiffs hereby reaffirm and re-allege each and every allegation made in the

preceding paragraphs as if set forth fully herein.

117. Article II, section 10 of the Montana Constitution provides that “[t]he right of

individual privacy is essential to the well-being of a free society and shall not be

infringed without the showing of a compelling state interest.” This right includes the

29
 fundamental “right to seek and to obtain a specific lawful medical procedure, a pre-

viability abortion, from a health care provider of her choice.” Armstrong, ¶ 14.

118. Violations of these rights are subject to strict scrutiny by the Court. The State

must show “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.” Id. at ¶ 59.

119. The Rule, HB 544, and HB 862 each violate the right to privacy of Medicaid

patients seeking abortions in Montana. The restrictions have no bona fide health

justification and are not narrowly tailored to effectuate a compelling State interest, in

violation of article II, section 10 of the Montana Constitution.

120. The Rule and HB 544 also each violate Plaintiffs’ patients’ right to informational

privacy because they unnecessarily require them to divulge sensitive and unnecessary

medical information to DPHHS.

Second Claim
Violation of the Right to Equal Protection of the Laws
Of Article II, Section 4 of the Montana Constitution
121. Plaintiffs hereby reaffirm and reallege each and every allegation made in the

preceding paragraphs as if set forth fully herein.

122. Article II, section 4 of the Montana Constitution provides that “[n]o person shall

be denied the equal protection of the laws.”

123. The Rule, HB 544, and HB 862 each violate equal protection because they create

several classifications that burden the fundamental right to abortion without being

narrowly tailored to effectuate a compelling State interest. See Snetsinger v. Montana

Univ. Sys., 2004 MT 390, ¶ 17, 325 Mont. 148, 104 P.3d 445 (strict scrutiny applies if

distinctions drawn by a law affect fundamental rights).

30
124. The Rule, HB 544, and HB 862 each discriminate against pregnant Medicaid

patients seeking to exercise their fundamental right to abortion, as compared to

pregnant Medicaid patients not seeking abortions, including those who decide to

continue their pregnancies and give birth.

125. The Rule, HB 544, and HB 862 each discriminate against pregnant Medicaid

patients seeking to exercise their fundamental right to abortion, as compared to

pregnant Medicaid patients seeking miscarriage management. Miscarriage

management involves nearly identical care to abortion, but it is specifically excepted

from the Rule and HB 544; under HB 862, Medicaid will continue to cover medically

necessary miscarriages but will only cover medically necessary abortions if the

abortion is sought because of rape or incest or because there is a risk of death to the

pregnant person.

126. The Rule, HB 544, and HB 862 each discriminate based on suspect classes,

including based on sex, because they have a disproportionate impact on women with

low incomes and are based on impermissible stereotypes about decision making by

women, pregnant people, and people with the capacity for pregnancy.

127. The Rule, HB 544, and HB 862 each discriminate against Medicaid providers

who provide abortions, as compared to those who provide care for pregnant people

not seeking abortions.

128. The Rule and HB 544 each discriminate against Medicaid patients seeking

abortions who seek care from an APC, as compared to Medicaid patients seeking

abortions who seek care from a physician.

129. The Rule and HB 544 each discriminate against APCs, as compared to physicians.

31
 Third Claim
Violation of the Montana Administrative Procedure Act,
§ 2-4-101, et seq., MCA
130. Plaintiffs hereby reaffirm and reallege each and every allegation made in the

preceding paragraphs as if set forth fully herein.

131. MAPA allows for judicial review of agency action, and courts may enjoin

enforcement of an administrative rulemaking for certain enumerated reasons,

including that it “impairs or threatens to interfere with or impair the legal rights or

privileges of the plaintiff” or that it “was adopted with an arbitrary or capricious

disregard for the purpose of the authorizing statute as evidenced by documented

legislative intent.” Section 2-4-506(1)–(2), MCA; see also § 2-4-704(2)(a)(i), MCA

(courts may reverse administrative decision if it is “in violation of constitutional or

statutory provision”).

132. The Rule violates § 2-4-506(1), MCA, because it violates the constitutional rights

of Plaintiffs and their patients.

133. The Rule violates § 2-4-506(1), MCA because it violates the rights of Plaintiffs

and their patients under §§ 53-6-104, 49-3-205, MCA.

134. The Rule violates §§ 2-4-506, § 2-4-305(6), MCA, because its narrowing of the

definition of “medically necessary,” which applies only to abortions, exceeds the

scope of DPHHS’s authority. See also § 2-4-704(2)(a)(ii), MCA (courts may reverse

administrative decision if it is “in excess of the statutory authority of the agency”).

135. The Rule is arbitrary and capricious in violation of §§ 2-4-305(6), 2-4-506(2),

because it violates the legislature’s stated intention to provide medically necessary

care to Medicaid-eligible Montanans and to provide care in a manner that is cost-

effective.

32
136. The Rule violates §§ 2-4-305(6)(b), 2-4-506, MCA, because the onerous

requirements it imposes are not reasonably necessary to ensure compliance with

Montana law, especially in light of the report DPHHS commissioned that found

100% compliance with existing rules. See also § 2-4-704(2)(a)(v), MCA (courts may

reverse administrative decision if it is “clearly erroneous in view of the reliable,

probative, and substantial evidence on the whole record”).

137. The Rule violates § 2-4-506, MCA, because it grants DPHHS officials

unrestricted discretion to grant or deny prior authorization for abortions.

138. The Rule violates § 2-4-506, MCA, because it is impermissibly vague and will

lead to arbitrary results.

Fourth Claim
Violation of the Freedom of Provider Choice Provisions
Of § 53-6-104, MCA

139. Plaintiffs hereby reaffirm and reallege each and every allegation made in the

preceding paragraphs as if set forth fully herein.

140. DPHHS must “provide reasonable freedom of choice to recipients of medical aid

to select the . . . provider of medical care [or] services.” Section 53-6-104, MCA.

141. DPHHS must also “provide for professional freedom of those licensed

practitioners who provide medical assistance” through Medicaid. Id.

142. The Rule and HB 544 each violate these provisions of § 53-6-104, MCA, because

they restrict Medicaid-eligible Montanans seeking abortions, including Plaintiffs’

patients, from selecting an advanced practice clinician provider of their choice.

143. The Rule and HB 544 each violate these provisions of § 53-6-104, MCA, because

they restrict the professional freedom of APCs to provide abortions.

33
 Fifth Claim
Violation of the Inalienable Right to Seek Safety, Health, and Happiness
Of Article II, Section 3 of the Montana Constitution

144. Plaintiffs hereby reaffirm and reallege each and every allegation made in the

preceding paragraphs as if set forth fully herein.

145. Article II, section 3 of the Montana Constitution provides that all Montanans have

the “[i]nalienable rights” to “seek[] their safety, health and happiness in all lawful

ways.”

146. The Rule, HB 544, and HB 862 each violate the right of Plaintiffs and their

patients to seek “safety, health and happiness in all lawful ways” because they

infringe on Montanans’ right to abortion, which is a constitutionally protected

procedure, and on the provider-patient relationship, in violation of article II, section 3

of the Montana Constitution.

Sixth Claim
Violation of the Right to Individual Dignity
Of Article II, Section 4 of the Montana Constitution

147. Plaintiffs hereby reaffirm and reallege each and every allegation made in the

preceding paragraphs as if set forth fully herein.

148. Article II, section 4 of the Montana Constitution provides that all Montanans have

the right to individual dignity.

149. The Rule, HB 544, and HB 862 each violate the right to individual dignity of

Plaintiffs and their patients in violation of article II, section 4 of the Montana

Constitution.

34
 Seventh Claim
Violation of the Montana Governmental Code of Fair Practices,
§ 49-3-205, MCA

150. Plaintiffs hereby reaffirm and reallege each and every allegation made in the

preceding paragraphs as if set forth fully herein.

151. The Montana Governmental Code of Fair Practices requires that government

services be made available or performed without discrimination based on sex. Section

49-3-205, MCA.

152. The Rule, HB 544, and HB 862 each impermissibly discriminate against women.

INJUNCTIVE RELIEF

153. The Rule, HB 544, and HB 862 each subject Plaintiffs’ patients to irreparable

harm and violate fundamental rights guaranteed by the Montana Constitution.

Plaintiffs are entitled to a permanent injunction enjoining the Rule, HB 544, and HB

862. Section 27-19-101, MCA.

154. Plaintiffs are entitled to preliminary injunctive relief under §§ 27-19-201(1), (2),

MCA enjoining the Rule, HB 544, and HB 862. Plaintiffs have established that they

are likely to succeed on the merits of their claims under the Montana Constitution,

that they and their patients will suffer irreparable injury if the Rule, HB 544, and HB

862 are enforced during the pendency of the litigation, and that the public interest and

balance of the equities weigh in favor of granting preliminary relief.

155. Plaintiffs are entitled to a temporary restraining order enjoining the enforcement

of the Rule until such time as this Court can set a hearing and consider Plaintiffs’

application for a preliminary injunction, filed concurrently herewith. On these

verified pleadings, the concurrently filed brief in support of application for

preliminary injunction and temporary restraining order, and accompanying affidavits,

35
 “it clearly appears . . . that a delay would cause immediate and irreparable injury to

the applicant before the adverse party or the party’s attorney could be heard in

opposition.” Section 27-19-315(1), MCA. Absent a temporary restraining order, an

unconstitutional rule would go into effect on Monday, May 1, 2023.

156. Further, Plaintiffs, through the undersigned counsel, “certify to the court in

writing the efforts . . . that have been made to give notice and the reasons supporting

the [Plaintiffs’] claim that notice should not be required.” Section 27-19-315(2),

MCA. As described above, undersigned counsel twice asked DPHHS to consider

delaying the effective date of the Rule to 90 days after publication of the adoption

notice or stipulating to a stay of enforcement of the Rule, but the agency refused both

times. Exs. E--J. Undersigned counsel also provided a copy of these filings to the

Attorney General’s Office simultaneous with their filing with the Court and will serve

the Director of DPHHS with conformed copies of the filings and a summons as soon

as possible.

WRIT OF PROHIBITION

157. Plaintiffs are entitled to a writ of prohibition pursuant to § 27-27-101, MCA.

Because the Rule is clearly unlawful, Plaintiffs request that the Court issue a writ of

prohibition directing Defendants to refrain from enforcing it.

36
 PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Court issue:

1. A declaration that (1) the Rule amending Mont. Admin. R. 37.82.102 and 37.86.104

proposed at Montana Administrative Register Notice 37-1024 and adopted in the April

28, 2023, edition of the MAR, 2023 House Bill 544, and 2023 House Bill 862 violate

Plaintiffs’ patients’ constitutional rights to privacy, equal protection, and dignity; their

right to seek safety, health, and happiness; their statutory rights under the Montana

Governmental Code of Fair Practices; and Plaintiffs’ equal protection rights; (2) the Rule

and HB 544 violate Plaintiffs’ and their patients’ statutory rights under the Freedom of

Provider Choice Provisions of § 53-6-104, MCA; and (3) the Rule violates the Montana

Administrative Procedure Act;

2. A temporary restraining order prohibiting Defendants, their agents, employees,

appointees, or successors from enforcing, threatening to enforce, or otherwise applying

the Rule until such time as the Court can conduct a hearing and rule on the merits of

Plaintiffs’ application for a preliminary injunction and request for a writ of prohibition;

3. A preliminary injunction prohibiting Defendants, their agents, employees, appointees, or

successors from enforcing, threatening to enforce, or otherwise applying the Rule, HB

544, and HB 862 during the pendency of this litigation;

4. A writ of prohibition directing Defendants and their agents, employees, appointees, and

successors not to enforce, threaten to enforce, or otherwise apply the Rule during the

pendency of this litigation;

37
 5. A permanent injunction prohibiting Defendants and their agents, employees, appointees,

and successors from enforcing, threatening to enforce, or otherwise applying the Rule,

HB 544, and HB 862;

6. An order awarding Plaintiffs attorney’s fees and costs pursuant to the Declaratory

Judgment Act and the Private Attorney General Doctrine; and

7. Such further relief as may be just and proper.

Respectfully submitted this 18th day of May, 2023.

______________________________
Raph Graybill
Graybill Law Firm, PC
300 4th Street North
PO Box 3586
Great Falls, MT 59403
(406) 452-8566
[email protected]

Tanis M. Holm
Edmiston & Colton Law Firm
310 Grand Ave.
Billings, Montana 59101
(406) 259-9986
[email protected]

Peter Im*
Planned Parenthood Federation of America, Inc.
1110 Vermont Ave., N.W., Ste. 300
Washington, D.C. 20005
(202) 803-4096
[email protected]

Dylan Cowit*
Planned Parenthood Federation of America, Inc.
123 William St., 9th Floor
New York, NY 10038
(212) 541-7800
[email protected]

38
Attorneys for Plaintiffs Planned Parenthood of
Montana and Samuel Dickman, M.D.

Akilah Deernose
Alex Rate
ACLU of Montana
PO Box 1986
Missoula, MT 59806
(406) 203-3375
[email protected]
[email protected]

Erin M. Erickson
Bohyer, Erickson, Beaudette,
and Tranel P.C.
283 West Front St., Suite 201
Missoula, MT 59802
(406) 532-7800
[email protected]

Hillary Schneller*
Jen Samantha D. Rasay*
Adria Bonillas*
Center for Reproductive Rights
199 Water Street, 22nd Floor
New York, NY 10038
(917) 637-3777
[email protected]
[email protected]
[email protected]

Attorneys for Plaintiffs All Families Healthcare,

Blue Mountain Clinic, and Helen Weems, APRN-
FNP

* Applications for admission pro hac vice pending

39
 VERIFICATION

STATE OF MONTANA
FLORIDA )
)ss.
PALM BEACH )
County of_______________

I, Martha Fuller, being first duly sworn upon her oath, verify that the statements contained in the

foregoing Amended Complaint, except for (1) the statements in paragraphs 17–19, 41–42,

84–85, and 88 of the Amended Complaint and (2) the statements about Blue Mountain Clinic

and All Families Healthcare in paragraphs 56, 79, 83, and 92 of the Amended Complaint, are

true and accurate to the best of my knowledge, information, and belief.

05/17/2023
Dated:______________ 77/109"/-
_____________________

Martha Fuller

Subscribed and sworn to before me this 17th day of May, 2023.

(NOTARIAL SEAL)

____________________________
DARIEN HERNANDEZ
Notary Public - State of Florida DARIEN HERNANDEZ
Printed Name:________________
Commission # HH186735
Expires on October 14, 2025

This notarial act was an online notarization

PRODUCED A MONTANA DRIVER'S LICENSE
 VERIFICATION

STATE OF MONTANA )
)ss.
County of / )

I, Nicole K. Smith, PhD, MPH,being first duly sworn upon her oath, verify that the foregoing

statements contained in paragraphs 19, 42, and 88 of the Amended Complaint, as well the

statements about Blue Mountain Clinic in paragraphs 56, 79, and 83 of the Amended Complaint,

are true and accurate to the best of my knowledge, information, and belief.

Dated: /8 71q4(4 ...20)

0
(
/%10i4" Nicole K. Smith, PhD, MPH,
/ Yoh
Subscribed and sworn to before me this 1>ith day of May, 2023.

(NOTARIAL SEAL)

MARK HELVESTON
Notary Public for the
State of Montana Printed Name:
Residing at MISSOULA, MT
My Commission Expires
March 17, 2026
•
 VERIFICATION

STATE OF MONTANA )
)ss.
County of PI out))

I, Helen Weems, MSN,APRN-FNP, verify that the foregoing statements contained in paragraphs

17-18,41, and 84-85 of the Amended Complaint, as well the statements about All Families

Healthcare in paragraphs 56, 79, 83, and 92 of the Amended Complaint, are true and accurate to

the best of my knowledge, information, and belief.

Dated:
/1(23
Helen Weems, MSN, APRN-FNP

Subscribed and sworn to before me this 17th day of May, 2023.

(NOTARIAL SEAL)

DONNA PELC Printed 'arne:

NOTARY PUBLIC for the
State of Montana
Residing at Whitefish, Montana
My Commission Expires
November 17, 2025
 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the above was duly served upon the following on the 18th day of
May, 2023, by electronic mail on the following:

Austin Knudsen
Thane Johnson
[email protected]
Michael D. Russell
[email protected]
Levi R. Roadman
[email protected]
Office of the Attorney General
P.O. Box 201401
Helena, MT 59620

Emily Jones
[email protected]
Special Assistant Attorney General
115 N. Broadway, Suite 410
Billings, MT 59101

__________________________
Graybill Law Firm, PC

40
 CERTIFICATE OF SERVICE

I, Raphael Jeffrey Carlisle Graybill, hereby certify that I have served true and accurate copies of
the foregoing Complaint - Amended Complaint to the following on 05-18-2023:

Alexander H. Rate (Attorney)

713 Loch Leven Drive
Livingston MT 59047
Representing: All Families Healthcare, Helen Weems
Service Method: eService

Akilah Maya Deernose (Attorney)

1121 Knight St.
Helena MT 59601
Representing: Blue Mountain Clinic, All Families Healthcare, Helen Weems
Service Method: eService

Erin M. Erickson (Attorney)

283 W. Front St. Suite 201
PO Box 7729
Missoula MT 59807
Representing: Blue Mountain Clinic, All Families Healthcare, Helen Weems
Service Method: eService

Hillary Anne Schneller (Attorney)

Center for Reproductive Rights
199 Water Street
22nd Floor
New York NY 10038
Representing: Blue Mountain Clinic, All Families Healthcare, Helen Weems
Service Method: eService

Thane P. Johnson (Govt Attorney)

215 N SANDERS ST
P.O. Box 201401
HELENA MT 59620-1401
Representing: MT Department of Public Health and Human Services, Charlie Brereton, State of
Montana
Service Method: eService

Emily Jones (Attorney)

115 North Broadway
Suite 410
Billings MT 59101
Representing: MT Department of Public Health and Human Services, Charlie Brereton, State of
Montana
Service Method: eService

Michael D. Russell (Govt Attorney)

215 N Sanders
Helena MT 59620
Representing: MT Department of Public Health and Human Services, Charlie Brereton, State of
Montana
Service Method: eService

Austin Miles Knudsen (Govt Attorney)

215 N. Sanders
Helena MT 59620
Representing: MT Department of Public Health and Human Services, Charlie Brereton, State of
Montana
Service Method: eService

Tanis M. Holm (Attorney)

310 Grand Ave.
Billings MT 59101
Representing: Planned Parenthood of Montana, Samuel Dickman
Service Method: eService

Alwyn T. Lansing (Govt Attorney)

215 N. Sanders St.
Helena MT 59620
Representing: State of Montana
Service Method: eService

Electronically signed by Emma Edwards on behalf of Raphael Jeffrey Carlisle Graybill

Dated: 05-18-2023