Petition for Writ of Certiorari — Mazurek v. Armstrong

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RN el ees ee

FILED |

(961104 Jan 1 51997

OF THE CLERK

No. gees it

In The

Supreme Court of the United States

October Term, 1996

JOSEPH MAZUREK, in his official capacity as

Attorney General of the State of Montana,

Petitioner,

JAMES H. ARMSTRONG, M.D.; MARK MILES, M.D.;

SUSAN WICKLUND, M.D.; SUSAN CAHILL, P.A.;

MARY STRANNAHAN, D.O.; BETH E. THOMPSON,

M.D.; and EDWIN L. STICKNEY, M.D., on

behalf of themselves and their patients throughout

Montana, the surrounding states and Canada and on

behalf of a class of performing and referring physicians,

Resvondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

JoserH P. Mazurek

Attorney General of Montana

Cray R. SmitH

Solicitor

Counsel of Record

Justice Building

215 North Sanders

P.O. Box 201401

Helena, MT 59620-1401

(406) 444-2026

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Did the Court of Appeals err in determining that the

Respondents possessed a fair chance of success for pur-

poses of a preliminary injunction on their claim that a

state statute, which limits the performance of abortions to

licensed physicians, constitutes an undue burden under

the Fourteenth Amendment to the United States Constitu-

tion and in directing the District Court on remand to

determine whether “in fact” the statute can be regarded

as serving a legitimate health function?

PARTIES

The Petitioner is Joseph P. Mazurek in his official

capacity as Attorney General of the State of Montana.

The Respondents are James H. Armstrong, Susan

Wicklund, Susan Cahill, Mary Stranahan, Beth E.

Thompson, and Edwin L. Strickney.

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TABLE OF CONTENTS

Page

SES og Wg 6 og 8 2 Sr ea jae ve

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OO PURE REE RTE oko k oc es Saas Cawcdces ces V

i eer ia bak cece kc sirkadawnab pas 1

REE ISRO ES EPS OR Pa acee b> ne 1

RELEVANT CONSTITUTIONAL AND STATUTORY

es SL ee EN Se eek whee wb e048 Sb EA Ok 2

eee EEE GO A NUES OAE oan s cece ndescvacnees 3

REASONS FOR GRANTING THE PETITION....... 8

I. THE COURT OF APPEALS’ DECISION CON-

FLICTS WITH THIS COURT’S REPEATED

ASSURANCE THAT STATES MAY LIMIT THE

PERFORMANCE OF ABORTIONS TO

RRnEOME TERS ONG PIG 0 vanes si vacevecceies 10

Il. THE COURT OF APPEALS ERRED IN DIRECT-

ING THE DISTRICT COURT TO ENGAGE IN

AN EVIDENTIARY ASSESSMENT OF

WHETHER “IN FACT” MONTANA’S PHYSI-

CIAN-ONLY REQUIREMENT SERVES A LEGIT-

SORE es WERALAES PUINCTION. 2... occ. 16

Sh ks, ie ee ets ue a Ade os vb ook Genes 21

SE ea eie ee oe cc ys keh 6b Fe bok hl os la

Opinion of the Ninth Circuit Court of Appeals

gS 5.” SIE AE TR aes ee la

TABLE OF CONTENTS - Continued

Memorandum and Order of the United States Dis-

trict Court (filed September 29, 1995)..........

Order Denying Petition for Rehearing with Sug-

gestion for Hearing En Banc (filed October 24,

| Ere ree rat weeny ame Tene ken ery ae

1995 Montana Laws Chapter 321.................

Order Granting Injunction Pending Appeal (filed

OPUEINNE Th. TW) oe a vk do disk vo ee eG ne a ee

Judgment in Doe v. Esch, No. CV-93-060-GF-PGH

(D. Mont.) (filed November 26, 1993) ..........

February 10, 1995 Minutes of Committee on

Human Services and Aging, Montana House of

Representatives (excluding exhibits)............

March 10, 1995 Minutes of Committee on Public

Health, Welfare and Safety, Montana Senate

fe ere oe aren eee

March 15, 1995 Minutes of Committee on Public

Health, Welfare and Safety, Montana Senate....

. 3 ne

i ooa

.. aoa

TABLE OF AUTHORITIES

Page

CASES

Birth Control Ctrs., Inc. v. Reizen, 743 F.2d 352

Cs FO a kn ace nek coe VR ON OAT AMA ER RSE MERE MES 14

City of Akron v. Akron Center for Reproductive

Health, Inc., 462 U.S. 416 (1983) .............. passim

Connecticut v. Menillo, 423 U.S. 9 (1975)...... 8, 11, 19

Doe v. Esch, No. CV-93-060-GF-PDH (D. Mont.)...... 3

FCC v. Beach Communications, Inc., 508 U.S. 307

CRE AKG Sock wih boa KGS PASS FEE EA Tees 18

Florida Women’s Medical Clinic, Inc. v. Smith, 536

F. Supp. 1048 (S.D. Fla. 1982), appeal dismissed,

Fue Wea Beem ME BO OWE BONS. oi cic ive ac bveccedces 14

Jane L. v. Bangerter, Nos. 93-4044 & 93-4059, 1996

WL 732494 (10th Cir. Dec. 23, 1996) .............. 18

May v. State, 492 S.W.2d 888 (Ark. 1973).........4.. 11

Miller v. Johnson, 115 S. Ct. 2475 (1995) .......... 7, 18

Minnesota v. Clover Leaf Creamery Co., 449 U.S.

BE 5 5 Faery entrar is Bes oe pin re) RY 18

People v. Brickley, 208 N.W.2d 172 (Mich. 1973)..... 11

People v. Norton, 507 P.2d 862 (Colo. 1973)......... 11

Planned Parenthood Ass’n of Kansas City v. Ash-

croft, 483 F. Supp. 679 (W.D. Mo. 1980), rev'd in

part on other grounds, 655 F.2d 848 (8th Cir.),

modified, 664 F.2d 687 (8th Cir. 1981), aff'd, 462

Re ec et ee abana e oer np ater NR eerie 13, 14

TABLE OF AUTHORITIES — Continued

Page

Planned Parenthood of Cent. Mo. v. Danforth, 428

i See DEE ode Cavs oa ee he hh ok ke ate ee Kee ea 14 -

Planned Parenthood of S.E. Pa. v. Casey, 505 U.S.

SR EE bk bork wsia 0a eines abo cee bale a aaa passim

Roe v. Wade, 410 US. 11S. 139735)... 0. cae ee wks passim

Smith v. Bentley, 493 F. Supp. 916 (E.D. Ark. 1980) .... 15

Spears v. Circuit Court, 517 F.2d 360 (5th Cir. 1975) .... 11

Spears v. State, 278 So. 2d 443 (Miss. 1973) ......... 1]

State v. Norflett, 337 A.2d 609 (N.J. 1975)........... 1]

Thornburgh v. American College of Obstetricians

& Gynecologists, 476 U.S. 747 (1986)........... $3, 15

Webster v. Reproductive Health Servs., 492 U.S.

AU PFE s ha hoa wR CER ERV GARRATS CREME ERE ae

Williamson v. Lee Optical of Okla., Inc., 343 U.S.

NANO os cae eb ab Meee Kel eal eee ee temeN s AF

Wright v. State, 351 So. 2d 708 (Fla. 1977)........... 15

FEDERAL MATERIALS

United States Constitution

NE TE Fabre exe es ek PN RRsat 2,5

PO Se ee 2 ed ha aD TPE Rie Pe Fe ey ey 5

United States Code

FI se Ras op REN MASE OUR CREE OOM Re we

Th OA: © TRY os hin ek Dee ve

TABLE OF AUTHORITIES —- Continued

Page

he. 28S 58S Fey, AG hry Vobetea en ehyNee 1, 5

Bees ae SO ae ek reek ek hh eee Gackt ceatereee

Federal Rules of Civil Procedure

Wee SEMER Ss a vee se ane Ce eal coe Wrednes a SO

MONTANA MATERIALS

Montana Code Annotated

§ 37-20-103 (1995) ...... Se aa nee ee ate) Teen s

ir (ce REE EO gn sec hg OE ed ah ae UR oe . 4

§ 37-20-403 (1993) ...... Poe hae as ere Stee ea:

eR i i a a

§ 50-20-109(1)(a) (1993) ........... ne Sein Mauser i

§ 50-20-109(5) (1995)...... pete Vale PAD

Montana Laws of 199

Ra MENT oko he a ORS koa EE OES ea ke, 5

CR. ‘321, 8 2 }

OTHER STATES’ MATERIALS

Ala. Dep’t of Public Health, State Board of Health

Rules, ch. 420-5-1.03(2)(a) (1990) ........ . 20

Alaska Stat. § 18.16.010(a)(1) (Michie 1994). .. 19

Vili

TABLE OF AUTHORITIES — Continued

Page

Ark. Stat. Ann. § 5-61-101(a) (Michie 1993).......... 19

Cal. Att’y Gen. Op. No. 90-926 (1991)............... 15

Cal. Health & Safety Code § 123405 (West 1996) .... 19

Colo. Rev. Stat. § 18-6-101(1) (1986) ................. 19

Conn. Dep’t of Health Services, Rules of Practice,

SD LESS SOOO? 6 oh eo rae Vina tox Carer aees 20

Del. Code Ann. tit. 24, § 1790(a) (Supp. 1994)....... 19

Fla. Stat. Ann. § 390.001(3) (West 1993) ............. 19

Ga. Code Ann. § 16-12-141(a) (1994) ................ 19

Haw. Rev. Stat. § 453-16(a)(1) (1993) ................ 19

idaho Code & 20-GO8 (2007 Fi oi os awiene et hiss ieeknes 19

Ill. Comp. Stat. Ann. ch. 720 (West 1993)............ 19

Ind. Code Ann. § 16-34-2-1 (Michie 1993) ........... 19

Iowa Code Ann. § 707.7 (West 1993)................ 19

Kan. Stat. Ann. § 65-6706(b) (1992).................. 19

Ky. Rev. Stat. Ann. §§ 311.750, 311.760(1) (Michie

RE 5p ce eke bs Ca WRT EIS R TRO e Uae eel 19

La. Rev. Stat. Ann. § 40:1299.35.2.A (West 1992)..... 19

Me. Rev. Stat. Ann. tit. 22, § 1598.3.A (1992)........ 19

Md. Code Ann., Health-Gen. II, § 20-208 (Supp.

|.” APRA ere ae OP MRT ONDER TASTE CRO A GRR ae 20

Mass. Gen. Laws Ann. ch. 112, §§ 12L, 12M, 12N

PE Seg cco via wih oa daaae oe leew aw awan neon 20

TABLE OF AUTHORITIES — Continued

Page

Mich. Comp. Laws Ann. § 750.14 (West 1991)....... 20

Minn. Stat. Ann. § 145.412.1(1) (West 1989)........ . 20

Miss. Code Ann. § 97-3-3(1) (1984). ...........- 0005: 20

Mo. Rev. Stat. §§ 188.020, 188.080 (1994) ............ 20

Neb. Rev. Stat. § 28-335 (1995) ........ cece eee eeees 20

Nev. Rev. Stat. Ann. § 442.250(1)(a) (Michie 1991) .... 20

N.J. Admin. Code § 13:35-4.2(b) (1994) .............. 20

N.M. Stat. Ann. §§ 30-5-1(C), 30-5-3 (Michie 1994) .... 20

N.Y. Penal Law §§ 125.05.3, 125.40 (McKinney

BR na re aah eee A ae RLM a ay 20

N.C. Gen. Stat. § 14.45.1(a) (1993)........--e senses <1

N.D. Cent. Code § 14-02-1-04(1) (1991) .............. 20

Ohio Rev. Code Ann. §§ 2919.11, 4731.41 (Ander-

BORE: TOU Blok 55k he scan dd neV Van enenkta eet eter ene eess 20

Okla. Stat. Ann. tit. 63, § 1-731.A (West 1984)....... 20

Pa. Cons. Stat. Ann. tit. 18, § 3204(a) (West 1983) .... 20

R.I. Dep’t of Health, Rules & Regulations for the

Termination of Pregnancy, § 600.1 (1984)........ . 20

S.C. Code Ann. § 44-41-20 (Law Co-op. 1985) ....... 20

S.D. Codified Laws § 22-17-5 (Michie 1988) ....... . 20

S.D. Codified Laws §§ 34-23A-3, 34-23A-4,

94-23A-5 (Michie 1994) ...... 6.08. sc cece eees. ae

Tenn. Code Ann. § 39-15-201(c) (1991) .......... een

TABLE OF AUTHORITIES — Continued

Page

Tex. Health & Safety Code Ann., § 245.010(b)

FOUR RMR ook Sek eed ho OR eke eee eee eens 20

Utah Code Ann. § 76-7-302(1) (1995)................ 20

Va. Code Ann. §§ 18.2-71, 18.2-72, 18.2-74,

163-744 Gillitie TOON... ees 20

Wash. Rev. Code Ann. §§ 9.02.110, 9.02.120 (West

ee ts nS wr wri rc Sere rere rare 20

Wis. Stat. Ann. § 940.15(5) (West 1996).............. 20

Wyo. Stat. Ann. § 35-6-111 (Michie 1994)........:...

PETITION FOR WRIT OF CERTIORARI

Petitioner Joseph P. Mazurek, in his official capacity

as Attorney General for the State of Montana, respectfully

requests that a writ of certiorari issue to review the

opinion and judgment of the court of Appeals for the

Ninth Circuit entered in the proceeding below on August

27, 1996.

OPINIONS BELOW

The opinion of the Court of Appeals was filed on

August 27, 1996, is reported at 94 F.3d 566, and is

reprinted in the Appendix commencing at page la.

The opinion of the District Court was filed on Sep-

tember 29, 1995, is unreported, and is reprinted in the

Appendix commencing at page 9a.

JURISDICTION

The Respondents’ claims before the District Court

arose under 42 U.S.C. § 1983, and federal jurisdiction

existed under 28 U.S.C. § 1343. On September 29, 1995 the

District Court denied the Respondents’ motion for pre-

liminary injunction, and they filed a notice of appeal from

such denial on October 2, 1995. Appellate jurisdiction

existed under 28 U.S.C. § 1292(a)(1).

The opinion of the Court of Appeals vacating the

District Court’s order and remanding the matter for

reconsideration of the preliminary injunction motion was

filed on August 27, 1996. The Petitioner filed a timely

petition for rehearing with cuggestion for rehearing en

banc on September 6, 1996. The petition for rehearing was

denied on October 24, 1996. Jurisdiction over the petition

for certiorari exists under 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Fourteenth Amendment to the United States

Constitution provides in relevant part:

AMENDMENT XIV

Section 1. All persons born or naturalized

in the United States and subject to the jurisdic-

tion thereof, are citizens of the United States and

of the State wherein they reside. No State shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law, nor deny to any person within its

jurisdiction the equal protection of the laws.

Section 37-20-103 of the Montana Code Annotated (1995)

provides:

Limitations on authority conferred — exception.

Except as provided in 37-10-102, nothing in this

chapter may be construed to authorize a physi-

cian assistant-certified to perform those func-

tions and duties specifically delegated by law to

persons licensed as optometrists, as defined

under Title 37, chapter 10. A physician assistant-

certified may not perform an abortion.

BGT eek deli at rn t , S n e St R IN, 0 ttll

3 opt ie eh cetRO merit diate: at ltl

Be BABY 08 42 eed

Section 50-20-109 of the Montana Code Annotated (1995)

provides in relevant part:

Control of practice of abortion. (1) An abortion

may not be performed within the state of Mon-

tana:

(a) except by a licensed physician;

(5) The utilization plan of a physician

assistant-certified may not provide for periorm-

ing abortions.

The entirety of 1995 Montana Laws chapter 321, which

added subsection (5) quoted above, is reprinted in the

Appendix commencing at 29a.

STATEMENT OF THE CASE

In Doe v. Esch, No. CV-93-060-GF-PGH (D. Mont.),

three of the present Respondents challenged the constitu-

tionality of Mont. Code Ann. § 50-20-109(1)(a) (1993)

which provided then, as now. that abortions must be

performed by a licensed physician. This issue was not

resolved by the District Court because the Esch defen-

dants, who included the Petitioner, stated in their answer

that the term “licensed physician” encompassed physi-

cian assistants-certified working under the direct super-

vision of a physician pursuant to a utilization plan

approved by the Montana Board of Medical Examiners.

That construction was based on the status of a physician

assistant-certified under Mont. Code Ann. § 37-20-403

(1993) as an agent of the supervising physician; the

authority of the Board of Medical Examiners under Mont.

Code Ann. § 37-20-303 (1993) to approve physician assis-

tant-certified utilization plans detailing the permissible

range of a physician assistant-certified’s practice; and the

Board’s administrative construction of its authority under

such provision by approving in March 1983, and thereaf-

ter annually reapproving, respondent Susan Cahill’s utili-

zation plan that provided for performance of first

trimester abortion by suction curettage. A judgment was

entered in November 1993 reflecting the defendants’ con-

struction of § 50-20-109(1)(a). Pet. App. 33a.

The Montana legislature disagreed with this con-

struction of the involved statutes and in 1995 enacted a

clarifying statute stating in part that “[t]he utilization

plan of a physician assistant-certified may not provide for

performing abortions.” 1995 Mont. Laws ch. 321, § 2

(codified at Mont. Code Ann. § 50-20-109(5) (1995)). Pet.

App. 29a. The legislative history relevant to Chapter 321

was submitted to the District Court and consists of min-

utes and exhibits from hearings on February 10, 1995

before the House Committee on Human Services and

Aging and on March 10 and 15, 1995 before the Senate

Committee on Public Health, Welfare and Safety. Repre-

sentative Susan Smith, the bill’s principal sponsor, indi-

cated before the House committee the legislation would

“clarify that only a physician could perform an abortion”

and that its “intent was to protect women who are seek-

ing a legal abortion from possible complications

[by! . . . ensur[ing] . . . the most qualified accessible

medical care possible.” Id. 36a, 45a. She repeated before

the Senate committee her belief that the legislation was “a

women|[’s}] health and safety issue” and that “[t]here

needs to be access to quality health care” which, with

respect to abortions, was provided best by a qualified

physician. Id. 65a.

Although approved by the Governor on April 3, 1995,

Chapter 321 was not scheduled to become effective until

October 1, 1995. The proceeding below was initiated in

July 1995, alleging claims under 42 U.S.C. § 1983 and

jurisdiction under 28 U.S.C. § 1343. In relevant part, the

Respondents challenged the physician-only requirement

in § 50-20-109(1)(a) and (5) under the Fourteenth Amend-

ment’s Due Process and Equal Protection Clauses and

under the Bill of Attainder Clause in Article 1, Section 10

of the Constitution. In August 1995 the Petitioner moved

for summary judgment, and in September the Respon-

dents requested that implementation of Chapter 321 be

enjoined preliminarily. Following a hearing concerning

the latter’s motion on September 29, 1995, the District

Court entered a memorandum and order denying their

request with respect to the physician-only requirement.

Pet. App. Ya.

As to the due process challenge to the physician-only

requirement, the District Court concluded the Respon-

dents had failed to establish that a “purpose” of Chapter

321 was “to place a substantial obstacle in the path of a

woman who chooses to exercise her right to seek an

abortion before the fetus attains viability” (Pet. App. 21a)

and that “[t]here exists insufficient evidence in the record

to support the conclusion the requirement that a licensed

physician perform an abortion would amount, ‘in practi-

cal terms[] to a substantial obstacle to a woman seeking

an abortion’ ” (id. 22a (quoting Planned Parenthood of S.E.

Pa. v. Casey, 505 U.S. 833, 884 (1992) (joint op.)). While

indicating its belief that “the history attendant to the

Montana Legislature’s enactment of Chapter 321 reflects|[]}

not all of the legislators voting in favor of Chapter 321

were motivated by a desire to foster the health of a

woman seeking an abortion,” the court reasoned it could

not “usurp the function of the Montana State Legislature

by assuming, as the plaintiffs ask it to do, that none of the

individual legislators was motivated by a desire to foster

the health of a woman seeking an abortion” and that,

under Casey, its role was a narrow one because of the

States’ wide latitude in determining whether certain

aspects of the abortion process should be performed by a

particular class of licensed professionals. Id.

The Court of Appeals vacated the District Court's

denial of the Respondents’ motion for preliminary injunc-

tion, applying established Ninth Circuit standards under

which the movant must establish “either a likelihood of

success on the merits and possibility of irreparable

injury[] or that serious questions are raised and the bal-

ance of hardships tips sharply in the movant’s favor.” Pet.

App. 5a. The court began its substantive analysis by

observing that in Casey this Court had defined an undue

burden to include “a State regulation [which] has the

purpose or effect of placing a substantial obstacle in the

path of a woman seeking an abortion of a non-viable

fetus.” Id. The Court of Appeals then criticized the Dis-

trict Court’s “view of its ability to consider the purpose

or effect of the legislation [as] . . . unduly confined for the

purpose of assessing whether appellants have a fair

chance of ultimate success.” Id. 6a.

The Court of Appeals next discussed what it viewed

as the correct analytical approach. It stated that this

Court “has not elaborated on the means of determining

legislative purpose under the Casey standard” but, citing

Miller v. Johnson, 115 S. Ct. 2475 (1995), proposed as the

appropriate test whether an improper purpose —- i.e.,

imposing a medical restriction for no reason ” ‘other than

to make abortions more difficult’ ” — existed was to deter-

mine “‘the predominant factor motivating the legisla-

ture’s decision.’” Pet. App. 6a. “A ‘determination of

purpose in the present case,” the court held, “may prop-

erly require an assessment of the totality of circumstances

surrounding the enactment of Chapter 321, and whether

that statute in fact can be regarded as serving a legitimate

health function.” Id. 7a (emphasis supplied).

Disclaiming any intent “to rule upon the propriety of

a preliminary injunction, and certainly not on the propri-

ety of a permanent injunction,” the Court of Appeals

nonetheless held the Respondents had shown the requi-

site “’serious question.’” Pet. App. 7a. Since that

“threshold” was reached, in the court’s view the only

remaining issue for preliminary injunction purposes was

a balancing of hardships. Id. With respect to that issue,

the court found the District Court had erred in focusing

on the hardship to respondent Cahill and stated “an

adequate weighing” demanded consideration of those

hardships experienced by all Respondents and by their

patients. Id. It accordingly vacated the order denying the

preliminary injunction motion and remanded the case for

reconsideration of the motion. The mandate issued following

denial of the Petitioner's petition for rehearing with sugges-

tion for rehearing en banc, and the parties stipulated to an

injunction under Fed. R. Civ. P. 62(c), allowing respondent

Cahill to resume performance of abortions until resolu-

tion of proceedings before this Court. Id. 31a.

REASONS FOR GRANTING THE PETITION

Until the Court of Appeals’ opinion below, universal

agreement existed that a State could limit without violat-

ing the Constitution the performance of abortions to

licensed physicians. The fountainhead of this consensus

was Roe v. Wade, 410 U.S. 113 (1973), where the Court

expressly recognized the right of States to prohibit all

persons other than physicians from performing abortions.

Id. at 165. This holding was reiterated unanimously less

than two years later in Connecticut v. Menillo, 423 U.S. 9

(1975) (per cu.iam), and once again in City of Akron v.

Akron Center for Reproductive Health, Inc., 462 U.S. 416, 447

(1983). The Court of Appeals’ conclusion that the Respon-

dents have established a “fair chance of success” is thus

anomalous, since this Court’s decisions indicate that phy-

sician-only requirements such as that here are per se

valid.

No less anomalous is the Court of Appeals’ reliance

on the joint opinion in Planned Parenthood of Southeastern

Pennsylvania v. Casey, 505 U.S. 833 (1992), as support for

its new rule of constitutional jurisprudence. Not only did

Casey reaffirm Roe in various respects, but, to the extent it

modified the earlier decision, Casey created greater lati-

tude for the States to regulate abortions. Id. at 878-79.

Even more directly relevant is the fact that Casey over-

ruled Akron in certain respects, including the earlier deci-

sion’s invalidation of a statutory provision requiring

physicians to give portions of a patient advisement. Id. at

884-85.

The Court of Appeals’ error in failing to recognize

the settled nature of the issue here is compounded by its

direction that the District Court determine legislative

purpose in part by reference to whether “in fact” the

physician-only requirement can be regarded “as serving a

legitimate health function.” Pet. App. 7a. Since it must be

assumed the Court of Appeals was aware Roe and later

cases were premised on the principle that physician-only

requirements do serve the health interests of women

seeking «' ortions, the court plainly has in mind an

inquiry uirected at determining not whether the Montana

legislature had a rational basis for the requirement but

whether, after full evidentiary development, the record

establishes physician assistants can perform certain

classes of abortions as safely as qualified physicians.

Even were Casey's reference to “purpose or effect” in its

formulation of the undue burden Standard read propeziy

as inviting reconsideration of Roe’s approval of a physi-

cian-only requirement, the “purpose” test is not the one

fabricated out of whole cloth by the Court of Appeals; it

instead is whether a valid purpose can be assigned to the

regulation — i.e., the rational basis test employed in Casey

with respect to the physician-only portion of the patient

advisement. 505 U.S. at 885 (citing Williamson v. Lee Optt-

cal of Okla., Inc., 343 US. 483 (1955)).

The Court of Appeals’ decision represents, in sum, a

radical departure from previously accepted parameters of

State discretion in regulating the performance of abor-

tions. It requires the Petitioner to engage in expensive,

time-consuming litigation over preliminary injunctive

relief that, given the nature of the remand, is virtually

assured. Only early intervention by this Court will

impress upon panels like that below the obligation to

adhere to binding precedent even when, as appears the

situation here, the lower court finds adherence distaste-

ful.

I. THE COURT OF APPEALS’ DECISION CON-

FLICTS WITH THIS COURT’S REPEATED ASSUR-

ANCE THAT STATES MAY LIMIT THE

PERFORMANCE OF ABORTIONS TO LICENSED

PHYSICIANS.

Absent from the Court of Appeals’ opinion is any

reference to this Court’s opinions addressing the propri:

ety of state laws that limit to licensed physicians those

persons who may perform abortions. The first of the

cases not mentioned is the cornerstone of the undue

burden standard the court below purported to apply, Roe

v. Wade, 410 U.S. 113 (1973). There, this Court struck

down as overbroad a Texas statute prohibiting abortions

except for the purpose of saving the mother’s life. It

nonetheless stressed that States have “a legitimate inter-

est in seeing that abortion like any other medical pro-

cedure is performed under circumstances that insure

maximum safety for the patient” and that such interest

“obviously extends at least to the performing physician and

his staff, to the facilities involved, to the availability of

after-care, and to adequate provision for any complica-

tion or emergency that might arise.” Id. at 150 (emphasis

supplied). In the penultimate part of the opinion, the

Court reiterated the discretion accorded States in this

Drennan sy _snstnnabii nant ea al

respect, holding that a “State may define the term ‘physi-

cian{]’ ... to mean only a physician currently licensed by

the State, and may proscribe any abortion by a person

who is not a physician as so defined.” Id. at 165. The

latter statement was included among the Court's general

guidelines governing the permissible scope of abortion

regulation by States

Substantial litigation arose after Roe concerning

whether abortion statutes unenforceable against licensed

physicians could be enforced against nonphysicians - i.e.,

whether the effect of Roe was to invalidate such statutes

as a matter of federal law in their entirety.! In Connecticut

v. Menillo, 423'U.S. 9 (1975) (per curiam), the Court made

clear that Roe did not render null and void statutes incon-

sistent with its trimester approach so as to prevent pros-

ecution of nonphysicians for performing abortions. It

reasoned that “the rationale of our decision supports

continued enforceability of criminal abortion statutes

against nonphysicians” because, even during the first

trimester, a State’s interest in maternal health is sufficient

to support a physician-only requirement. Id. at 171.

This Court next confronted a physician-only require-

ment in City of Akron v. Akron Center for Reproductive

' E.g., Spears v. Circuit Court, 517 F2d 360, 364 (5th Cir

1975); State v. Norflett, 337 A.2d 609, 616 (N.J. 1975); May v. State,

492 S.W.2d 888 (Ark. 1973); People v. Brickley, 208 N.W.2d 172

(Mich. 1973); Spears v. State, 278 So. 2d 443 (Miss 1973); cf. People

v. Norton, 507 P.2d 862 (Colo. 1973) (invalidating portions of

abortion statute other than, inter alia, licensed physician

requirement).

Health, Inc., 462 U.S. 416 (1983), where a municipal ordi-

nance imposed a nondelegable duty on the attending

physician to inform his or her patient of the risks associ-

ated with the proposed abortion and any other informa-

tion the physician deemed relevant to the patient's

decision to abort. The Court found no constitutional

impropriety in the substance of the required advisement

but did hold the physician-only aspect invalid, since “the

State’s interest is ensuring that the woman’s consent is

informed and unpressured” and thus “the critical factor

is whether she obtains the necessary information and

counseling from a qualified person, not the identity of the

person from whom she obtains it.” Id. at 448. It buttressed

this holding by pointing to the ability of States to “estab-

lish minimum qualifications for those people who per-

form the primary counseling function” and noted the

general ethical obligation of the physician not “to abdi-

cate his essential role as the person ultimately responsible

for the medical aspects of the decision to perform the

abortion.” Id. at 448-49. Despite its refusal to approve the

mandated physician-only advisement requirement, the

Court repeated “that, to ensure the safety of the abortion

procedure, the States may mandate that only physicians

perform abortions.” Id. at 447.

Akron’s holding with respect to the physician-only

requirement in the advisement process was overruled in

Planned Parenthood of Southeastern Pennsylvania v. Casey,

505 U.S. 833 (1992). The Court’s joint opinion observed

that the record contained no evidence that the require-

ment “would amount in practical terms to a substantial

obstacle to a woman seeking an abortion” and that “[o]ur

cases reflect the fact that the Constitution gives the States

ates ees Ser

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Reid Ae

Sie

ek a >

broad latitude to decide that particular functions may be

performed only by licensed professionals, even if an

objective assessment might suggest that those same tasks

could be performed by others.” Id. at 884-85. Nothing in

Casey suggested that its reformulation of the undue bur-

den standard was intended to open for reconsideration

by lower courts the existing rule that States possess the

authority to restrict the performance of abortions to phy-

sicians. That reformulation was intended to broaden, not

reduce, state discretion as indicated by the overruling of

Akron with respect to the physician-only feature of the

advisement requirement.

The Court of Appeals’ reliance on the statement in

Casey that an undue burden may arise from “[ujnnecess-

ary health regulations that have the purpose or effect of

presenting a substantial obstacle to a woman seeking an

abortion” (505 U.S. at 878) as modifying sub silentio the

holding in Roe and subsequent cases concerning the right

of States to limit the perfurmance of abortions to licensed

physicians is untenable. That statement was directed to

the class of medical procedure-related restrictions which

had been the focus of much post-Roe litigation.2 The

* See, e.g., Webster v. Reproductive Health Servs., 492 U.S. 490,

519-20 (1989) (holding mandatory viability testing at 20 or more

weeks of gestational age valid in light of variation in age of

viability, even though in many instances tests will show no

viability and will increase cost of abortions); Thornburgh v

American College of Obstetricians & Gynecologists, 476 U.S. 747,

769-71 (1986) (invalidating requirement that second physician

be present when viability possible in absence of express or

implied emergency condition exception); Planned Parenthood

Ass'n of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 495 (1983)

(finding second physician requirement in third trimester

salient point here, and the one seemingly lost upon the

court below, is that the entirety of this Court, notwith-

standing intense division over the constitutional permis-

sibility of these restrictions, has never wavered from the

core notion that it is permissible for a state legislature to

require all abortions to be performed by a physician.

Accepting the animating predicate of the Court of

Appeals’ opinion — that the Respondents have shown a

“fair chance of success” on the merits — simply cannot be

squared with what every other lower court has consid-

ered to be resolved conclusively against their position.*

abortions valid because State could assume reasonably that first

physician would be concerned principally with the mother’s

well-being and that the second physician would be of assistance

in preserving child’s life); Akron, 462 U.S. at 434 (invalidating as

overbroad requirement that second trimester abortions be

performed in hospital since State had failed “to limit the effect

of its regulations to the period in the trimester during which the

health interest will be furthered”); Planned Parenthood of Cent.

Mo. v. Danforth, 428 U.S. 52, 79 (1976) (invalidating statute

prohibiting saline amniocentesis from use as method of abortion

after the first trimester “where the outright legislative

proscription of saline fails as a reasonable regulation for the

protection of maternal health”).

3 See, e.g., Birth Control Ctrs., Inc. v. Reizen, 743 F.2d 352, 364

(6th Cir. 1984) (State “may constitutionally insist that only

properly licensed physicians be permitted to perform

abortions”); Florida Women’s Medical Clinic, Inc. v. Smith, 536 F.

Supp. 1048, 1057 (S.D. Fla. 1982) (State may limit performance of

first trimester abortions to licensed physicians), appeal dismissed,

706 F.2d 1172 (11th Cir. 1983); Planned Parenthood Ass’n of Kansas

City, Mo., Inc. v. Ashcroft, 483 F. Supp. 679, 684-85 (W.D. Mo.

1980) (as applied to nonphysican performing abortion on

another person, statute restricting abortion practice to

physicians held “clearly valid”), rev'd in part on other grounds,

655 F.2d 848 (8th Cir.), modified, 664 F.2d 687 (8th Cir. 1981), aff'd,

The clarity and unanimity of precedent as to this bedrock

element of this Court’s abortion jurisprudence counsel

q strongly in favor of rectifying immediately the Court of

Appeals’ misreading of Casey. The Respondents, in short,

| have shown no chance of success on the merits with

¢ respect to their Due Process Clause-based claim, and

preliminary injunctive relief is therefore unavailable as a

matter of law. Thornburgh, 476 U.S. at 755; see also id. at

818 (O'Connor, J., dissenting).4

‘

ns Aa Re SO em, Pee ae

462 U.S. 476 (1983); Smith v. Bentley, 493 F. Supp. 916, 927 (E.D.

Ark. 1980) (“States can prohibit, without running afoul of the

constitution, nonphysicians from performing abortions during

any stage of pregnancy”); Wright v. State, 351 So. 2d 708, 711

(Fla. 1977) (upholding conviction of nurse for performing

abortion in violation of Statutory physician requirement); see

also Cal. Att’y Gen. Op. No. 90-926 (1991) (under California law,

physician assistant may not perform abortions).

* It should be reiterated that, in concluding the

Respondents showed a fair chance of success, the Court of

Appeals did not explain why. Presumably, as discussed below,

the court believed the Respondents had made a sufficient

showing that properly trained physician assistants generally, or

assistants perform first-trimester abortions with complication

rates equal to or lower than corresponding rates for

physicians,” and that respondent Cahill “has [performed

abortions] safely for eighteen years.” Brief of Appellants at

27-28, Armstrong v. Mazurek, 94 F.3d 566 (9th Cir. 1996) (per

curiam) (No. 95-35962).

; respondent Cahill specifically, can perform at least certain types

: of abortions as safely as physicians. The Respondents, in this

i regard, argued below that “the court must look behind [the

{ stated health] purpose” of the physician-only requirement, that

4 “all available evidence shows that properly trained physician

il. THE COURT OF APPEALS ERRED IN DIRECTING

THE DISTRICT COURT TO ENGAGE IN AN EVI-

DENTIARY ASSESSMENT OF WHETHER “IN

FACT” MONTANA‘’S PHYSICIAN-ONLY

REQUIREMENT SERVES A LEGITIMATE

HEALTH FUNCTION.

The Court of Appeals instructed the District Court on

remand to consider the “totality of circumstances sur-

rounding the enactment of Chapter 321” and whether the

physician-only requirement “in fact can be regarded as

serving a legitimate health function” in determining the

existence of an impermissible legislative purpose. Pet.

App. at 7a. The court unquestionably viewed the “in fact”

analysis as entailing an evidentiary assessment of

whether the Montana legislature was correct in conclud-

ing that the physician-only requirement furthers the

safety of the abortion procedure. Thus, under the Court

of Appeals’ proposed application of Casey, if an objective

assessment of the evidence establishes a properly trained

physician assistant can perform certain types of abortions

in a manner comparably safe to that of a physician, the

legislature will be deemed to have no health-related justi-

fication for the physician-only requirement and to have

imposed an undue burden on affected women.

Even if one assumes the need to examine the “pur-

pose or effect” of a physician-only requirement despite its

approval in Roe and later cases, the Court of Appeals’

suggested standard runs afoul of Casey itself. In distilling

Roe’s “essential holding[s],” the Casey joint opinion

“reject{ed] the trimester framework” (505 U.S. at 873) and

observed that “[n]umerous forms of state regulation

might have the incidental effect of increasing the cost or

\ decreasing the availability of medical care, whether for

abortion or any other medical procedure” (id. at 874).

“The fact,” the Court continued, “that a law which serves

a valid purpose, one not designed to strike at the right

itself, has the incidental effect of making it more difficult

or more expensive to procure an abortion cannot be

enough to invalidate it.” Id. (emphasis supplied). Conse-

quently, where a valid purpose exists, an undue burden

arises only when the regulation constitutes a “substantial

obstacle” to previability abortion. Id. at 878. The existence

of a valid purpose is determined through application of

the rational basis test. Representative of this approach

was the Court’s overruling of Akron’s holding with

respect to the physician-only advisement requirement,

where it first found no substantial obstacle “in practical

terms” and then relied on the traditional rational basis

standard, as reflected in Williamson v. Lee Optical of Okla.,

Inc., 348 U.S. 483 (1955), for the general proposition that

States have “broad latitude” as to requiring certain activ-

ities or functions be performed only by licensed profes-

sionals. Casey, 505 U.S. at 884-85.

The breadth of that latitude is reflected in Williamson,

where this Court sustained against a substantive due

process challenge an Oklahoma statute requiring a pre-

scription from a licensed ophthalmologist or optometrist

before a pair of glasses could be fitted. The Court rea-

soned that the statute “May exact a needless, wasteful

requirement in many cases” but that “it is for the legisla-

ture, not the courts, to balance the advantages and disad-

vantages of the new requirement.” 348 U.S. at 487. The

rational basis test thus does not contemplate legislative

judgments, for which “any conceivable state of facts

. . could provide” reasonable justification (FCC v. Beach

Communications, Inc., 508 U.S. 307, 313 (1993)), being chal-

lenged through a contrary evidentiary showing in a judi-

cial proceeding. Minnesota v. Clover Leaf Creamery Co., 449

U.S. 456, 464-65 (1981). A fortiori a statute limiting the

performance of an abortion to physicians passes muster

under this test if a State can require a physician to give

portions of a patient advisement.

The Court of Appeals’ reliance on racial gerryman-

dering cases for a contrary result underscores the prob-

lematic nature and consequences of i's reasoning. As this

Court stated in Miller v. Johnson, 115 S. Ct. 2475 (1995), the

first of the cases cited by the court below, racial classifica-

tions touch upon the very heart of the Fourteenth

Amendment - i.e., “[i]ts central mandate is racial neu-

trality in governmental decisionmaking.” Id. at 2482.

Nonetheless, even in this uniquely sensitive area, a liti-

gant must establish a prima facie case before inquiry into

legislative objective is appropriate. Id. at 2488. Notions of

a “prima facie” case are inapposite here because, under

Casey, the test with respect to “purpose” is whether the

particular medical restriction survives rational basis anal-

ysis. If it does, no further inquiry is permitted as to

purpose; if it does not, the restriction falls. The lower

court’s failure to recognize that Casey does not authorize

further inquiry into legislative purpose leaves the judici-

ary in the position of hypothesizing with little restraint

over the “real” intent behind legislation without deter-

mining whether the asserted purpose is reasonable. See

Jane L. v. Bangerter, Nos. 93-4044 & 93-4059, 1996 WL

732494, at *4 (10th Cir. Dec. 23, 1996) (relying on the

decision below and finding improper purpose behind

m ———S_—aeaeaeaee

statute that restricted abortions after twenty weeks gesta-

tional age, because “the Utah legislature’s intent in pass-

ing the abortion provisions was to provide a vehicle by

which to challenge Roe v. Wade, as demonstrated by the

legislature’s establishment of an abortion litigation trust

account”).

The Court of Appeals, finally, did not suggest the

Respondents had shown a “fair chance of success” of

proving that the physician-only requirement cannot be

sustained under the rational basis standard. Any such

suggestion, aside from its inconsistency with Roe, Menillo

and Akron, would bring into doubt similar restrictions in

virtually every State.5 The very novelty of the claim here

° In connection with a motion for preliminary injunction

filed before the Court of Appeals in October 1995, the

Respondents submitted the affidavit of David Grimes, M.D.,

chief of the Department of Obstetrics, Gynecology and

Reproductive Sciences at San Francisco General Hospital, as

well as professor at the University of California at San

Francisco. He identified only two States, Montana prior to

enactment of Chapter 321 and Vermont, where physician

assistants have performed abortions. This fact is unsurprising.

A substantial majority of States have Statutory provisions

limiting the performance of abortions to physicians. Alaska Stat.

§ 18.16.010(a)(1) (Michie 1994); Ark. Stat. Ann. § 5-61-101(a)

(Michie 1993); Cal. Health & Safety Code § 123405 (West 1996);

Colo. Rev. Stat. § 18-6-101(1) (1986); Del. Code Ann. tit. 24,

§ 1790(a) (Supp. 1994); Fla. Stat. Ann. § 390.001(3) (West 1993);

Ga. Code Ann. § 16-12-141(a) (1994); Haw. Rev. Stat.

§ 453-16(a)(1) (1993); Idaho Code § 18-608 (1987); Ill. Comp. Stat.

Ann. ch. 720, § 510/3.1 (West 1993); Ind. Code Ann. § 16-34-2-1

(Michie 1993); lowa Code Ann. § 707.7 (West 1993); Kan. Stat.

Ann. § 65-6706(b) (1992); Ky. Rev. Stat. Ann. §§ 311.750,

311.760(1) (Michie 1995); La. Rev. Stat. Ann. § 40:1299.35.2.A

(West 1992); Me. Rev. Stat. Ann. tit. 22, § 1598.3.A (1992); Md.

counsels against any plausible contention that restricting

the performance of abortions to licensed physicians fur-

thers health concerns “ ‘could not reasonably be con-

ceived to be true by the governmental decisionmaker’ ”

(Clover Leaf Creamery, 449 U.S. at 464), since almost all

state legislatures and regulators have concluded other-

wise. When the appropriate standard is applied, there-

fore, the Respondents have failed to establish likelihood

Code Ann., Health-Gen. II, § 20-208 (Supp. 1995); Mass. Gen.

Laws Ann. ch. 112, §§ 12L, 12M, 12N (West 1996); Minn. Stat.

Ann. § 145.412.1(1) (West 1989); Miss. Code Ann. § 97-3-3(1)

(1984); Mo. Rev. Stat. §§ 188.020, 188.080 (1994); Neb. Rev. Stat.

§ 28-335 (1995); Nev. Rev. Stat. Ann. § 442.250(1)(a) (Michie

1991); N.M. Stat. Ann. §§ 30-5-1(C), 30-5-3 (Michie 1994); N_Y.

Penal Law §§ 125.05.3, 125.40 (McKinney 1987); N.C. Gen. Stat.

§ 14.45.1(a) (1993); N.D. Cent. Code § 14-02-1-04(1) (1991); Ohio

Rev. Code Ann. §§ 2919.11, 4731.41 (Anderson 1993); Okla. Stat.

Ann. tit. 63, § 1-731.A (West 1984); Pa. Cons. Stat. Ann. tit. 18,

§ 3204(a) (West 1983); S.C. Code Ann. § 44-41-20 (Law Co-op.

1985); S.D. Codified Laws § 22-17-5 (Michie 1988), &

§§ 34-23A-3, 34-23A-4, 34-23A-5 (Michie 1994); Tenn. Code Ann.

§ 39-15-201(c) (1991); Tex. Health & Safety Code Ann.,

§ 245.010(b) (West 1992); Utah Code Ann. § 76-7-302(1) (1995);

Va. Code Ann. §§ 18.2-71, 18.2-72, 18.2-74, 18.2-74.1 (Michie

1996); Wash. Rev. Code Ann. §§ 9.02.110, 9.02.120 (West Supp.

1997); Wis. Stat. Ann. § 940.15(5) (West 1996); Wyo. Stat. Ann.

§ 35-6-111 (Michie 1994). Administrative regulations in several

others accomplish the same end. Ala. Dep’t of Public Health,

State Board of Health Rules, ch. 420-5-1.03(2)(a) (1990); Conn

Dep’t of Health Services, Rules of Practice, § 19-13-D54(a)

(1974); N.J. Admin. Code § 13:35-4.2(b) (1994); R.I. Dep’t of

Health, Rules & Regulations for the Termination of Pregnancy,

§ 600.1 (1984). In one State, this result has been achieved by

limiting construction of a statute otherwise prohibiting any

person from inducing a miscarriage except to preserve the

woman's life. Bricker, 208 N.W.2d at 529-30 (construing Mich.

Comp. Laws Ann. § 750.14 (West 1991)).

Ate CIM Ba pie

of success on the merits even if physician-only require-

TE ache ee

ments of the kind here are not per se valid

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

JosepH P. Mazurex

Attorney General of Montana

Cray R. SmirH

Solicitor

Counsel of Record

Justice Building

215 North Sanders

P.O. Box 201401

Helena, MT 59620-1401

(406) 444-2026

3 January 1997

Leche) dei eth Seats

;

—

;

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN H. ARMSTRONG, M.D.;

MARK MILES, M.D.; SUSAN

WICKLUND, M.D.; SUSAN

CAHILL, P.A.; MARK

STRANAHAN; MARY THOMPSON,

M.D.; EDWIN STICKNEY, M.D.; on No. 95-35962

behalf of themselves and their D.C. No.

patients throughout Montana, the CV-95-83-PGH

surrounding states and Canada and

on behalf of a class of performing OPINION

and rehearing physicians,

Plaintiffs-Appellants,

JOSEPH MAZUREK, Attorney

General of the State of Montana,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Montana

Paul G. Hatfield, Chief District Judge, Presiding

Argued and Submitted to Motions Panel

February 28, 1996 — San Francisco, California

Filed August 27, 1996

Before: Harry Pregerson, William C. Canby, Jr. and

Michael Daly Hawkins, Circuit Judges.

Per Curiam Opinion

SUMMARY

The summary, which does not constitute a part of the

opinion of the court,

is copyrighted C 1994 by Barclays Law Publishers.

Health/Reproductive Rights/

Civil Litigation and Procedure

The court of appeals vacated a district court order and

remanded. The court held that remand was warranted so

that the district court, which had denied a motion for a

preliminary injunction against enforcement of a Montana

statute restricting the performance of abortions to

licensed physicians, could engage in a proper balancing

of the hardships and exercise its discretion anew.

Chapter 321 of the 1995 Montana Session Laws, passed as

House Bill No. 442, restricts the performance of abortions

to licensed physicians. Appellants, licensed physicians

and a physician’s assistant who are engaged in providing

health care including abortions (collectively, the Plain-

tiffs), sought a permanent injunction against enforcement

of Chapter 321 on the ground that the purpose and effect

of the statute is to present a “substantial obstacle” to a

woman's obtaining an abortion within the meaning of

Planned Parenthood of Southeastern Pennsylvania v.

Casey, 505 U.S. 833 (1992). They also sought to invalidate

the statute as a bill of attainder directed at appellant

Susan Cahill, the physician’s assistant.

The district court denied a preliminary injunction against

enforcement of Chapter 321 to permit Cahill to continue

to perform abortions until the district court was able to

Raita ane eatis Rai Ainin a ie icay ctiat

rule on the question of permanent relief. The court con-

sidered itself unable to impugn the health purpose of the

statute and found insufficient evidence that the statute

posed a practical obstacle to the obtaining of an abortion.

The court considered it “unlikely” that the Plaintiffs

could prevail on their “undue burden” argument. The

court also concluded that because there appeared to be a

legitimate purpose for the Statute, the bill of attainder

claim was unlikely to succeed. The Plaintiffs appealed the

denial of their motion for a preliminary injunction.

[1] The district court’s view of its ability to consider the

purpose or effect of the legislation was unduly confined

for the purpose of assessing whether the Plaintiffs had a

fair chance of ultimate success. A proper inquiry was

whether “the requirements serve no Purpose other than

to make abortions more difficult.” [2] The Plaintiffs pre-

sented claims having at least the minimum “fair chance of

success.” They presented a “serious question” requiring a

balancing of the hardships to determine the appropriate-

ness of preliminary relief.

[3] The district court did not truly balance the hardships

and stated that the harm on the Plaintiffs’ side was only

to Cahill. An adequate weighing of the Plaintiffs’ hard-

ships must also include consideration of the hardship to

the patients. [4] In addition, the district court did not

address the countervailing hardships to the state, or the

absence of them. [5] Remand was warranted to the dis-

trict court so that it could, after such proceedings as it

deemed appropriate, engage in a proper balancing of the

hardships and exercise its discretion anew.

COUNSEL

Janet Benshoof and Simon Heller, The Center for Repro-

ductive Law and Policy, New York, New York; Bruce

Measure, Law Offices of Ambrose Measure, Kalispell,

Montana; Turner Graybill, Graybill, Ostrem, Warner and

Crotty, Great Falls, Montana, for the plaintiffs-appellants.

Clay R. Smith and Elizabeth Baker, Assistant Attorney

General, Helena, Montana, for the defendant-appellee.

James Bopp, Jr., Bopp, Coleson and Bostrom, Terre Haute,

Indiana, for the amici curiae.

OPINION

PER CURIAM:

James H. Armstrong, M.D., Susan Cahill and others

appeal the district court’s denial of their motion for a

preliminary injunction against enforcement of Chapter

321 of the 1995 Montana Session Laws, passed as House

Bill No. 442 (HB 442), a bill restricting the performance of

abortions to licensed physicians. Appellants are licensed

physicians or, in the case of Cahill, a physician’s assistant,

who are engaged in providing health care including abor-

tions. Cahill is the only physician’s assistant in Montana

who performs abortions, which she has done in the past

under the supervision of a medical doctor and as

approved by the Montana State Board of Medica! Exam-

iners.

Appellants ultimately seek a permanent injunction

against enforcement of Chapter 321, on the ground that

the purpose and effect of the statute is to present a

= eR Se ee Tey peer

“substantial obstacle” to a woman’s obtaining an abor-

tion, within the meaning of Planned Parenthood of South-

eastern Pennsylvania v. Casey, 505 U.S. 833, 877 (1992).

They also seek to invalidate the statute as a bill of

attainder directed at Cahill.

The matter presently before us, however, is the district

court’s denial of a preliminary injunction against enforce-

ment of Chapter 321 to permit Cahill to continue to

perform abortions until the district court is able to rule on

the question of permanent relief. Preliminary injunctive

relief is appropriate if the movant has shown either a

likelihood of success on the merits and the possibility of

irreparable injury, or that serious questions are raised and

the balance of hardships tips sharply in the movant's

favor. United States v. Odessa Union Warehouse Co-op,

833 F.2d 172 (9th Cir. 1987). At the very minimum, the

moving party must show a fair chance of success on the

merits. Stanley v. University of Southern California, 13

F.3d 1313, 1319 (9th Cir. 1994). We review the district

court's order to determine whether the court applied the

proper legal standard and whether it abused its discre-

tion in applying that standard. See Sports Form, Inc. v.

United Press Int’l, Inc., 686 F.2d 750, 752 (9th Cir. 1982).

The district court quite correctly understood that the

application of Casey’s “undue burden” standard is cru-

cial to the determination of appellants’ ultimate claims:

“A finding of undue burden is a shorthand for the con-

clusion that a State regulation has the purpose or effect of

placing a substantial obstacle in the path of a woman

seeking an abortion of a non-viable fetus.” Casey, 505

U.S. at 877. The district court also acknowledged Casey’s

admonition that “unnecessary health regulations that

have the purpose or effect of presenting a substantial

obstacle to a woman seeking an abortion impose an

undue burden on the right.” Id. at 878.

The district court, however, considered itself unable to

impugn the health purpose of the statute because it could

not assume that “none of the individual legislators

approving the passage of Chapter 321 was motivated by a

desire to foster the health of a woman seeking an abor-

tion.” It also found insufficient evidence that the statute

posed a practical obstacle to the obtaining of an abortion.

Consequently, the district court considered it “unlikely”

that the appellants could prevail on their “undue burden”

argument. It also concluded that, because there appeared

to be a legitimate purpose for the statute, the bill of

attainder claim was unlikely to succeed.

[1] While we express no opinion on the appropriateness

of permanent relief, we conclude that the district court's

view of its ability to consider the purpose or effect of the

legislation was unduly confined for the purpose of

assessing whether appellants have a fair chance of ulti-

mate success. One proper inquiry, for example, is

whether “the requirements serve no purpose other than

to make abortions more difficult.” Casey, 505 U.S. at 901.

While the Supreme Court has not elaborated on the

means of determining legislative purpose under the

Casey standard, it has done so in other contexts. Legisla-

tive purpose to accomplish a constitutionally forbidden

result may be found when that purpose was “the pre-

dominant factor motivating the legislature’s decision.”

Miller v. Johnson, 115 S. Ct. 2475, 2488 (1995). Such a

Se CT a TT EE

bekthadrite et eravine Seated Kpaeels

‘

“a

forbidden purpose may be gleaned both from the struc-

ture of the legislation and from examination of the pro-

cess that led to its enactment. Shaw v. Hunt, 64 U.S.L.W.

4437, 4439 (U.S. June 13, 1996). A determination of pur-

pose in the present case, then, may properly require an

assessment of the totality of circumstances surrounding

the enactment of Chapter 321, and whether that statute in

fact can be regarded as serving a legitimate health func-

tion.

[2] While we do not now rule upon the propriety of a

preliminary injunction, and certainly not on the propriety

of a permanent injunction, we conclude that appellants

present claims having at least the minimvm “fair chance

of success.” Stanley, 13 F.3d at 1319. That threshold

passed, we conclude, as did the district court, that the

appellants presented a “serious question” requiring a

balancing of the hardships to determine the appropriate-

ness of preliminary relief. See Los Angeles Memorial

Coliseum Comm. v. National Football League, 634 F.2d

1197, 1201 (9th Cir. 1980).

[3] The district court, however, did not truly balance the

hardships, and stated that the harm on plaintiffs’ side

was only to Susan Cahill. An adequate weighing of plain-

tiffs’ hardships must also include consideration of the

hardship to the patients, whether or not it reaches consti-

tutional proportions. Plaintiffs are entitled to assert their

patients’ rights along with their own. Singleton v. Wulff,

428 U.S. 106, 113-18 (four-Justice plurality), 121 (Stevens,

J.) (1976).

[4] There was another omission by the district court

which is perhaps even more important in the context of

this case. The district court did not address the counter-

vailing hardships to the State, or the absence of them.

Only when the extent, if any, of the State’s hardship is

known can it be determined which way the balance tips

and how sharply.

[5] The district court was clearly sensitive to the delicate

issues presented by this case, as are we. We conclude that

it would be inappropriate to address the propriety of a

preliminary injunction without the benefit of the district

court’s balancing of the hardships in light of this opinion.

Proper balancing is part of the standard for determining

the propriety of preliminary relief, and the district court’s

order may be overturned on review if the standard is

erroneously applied. See Sports Form, 686 F.2d at 752. We

consequently vacate the district court’s order and remand

to the district court so that it may, after such proceedings

as it deems appropriate, engage in a proper balancing of

the hardships and exercise its discretion anew. Should

another appeal then be taken, the record will be in an

appropriate state to permit this court to review the dis-

trict court’s decision granting or denying preliminary

relief.

The district court’s order denying preliminary relief is

VACATED and this appeal is REMANDED to the district

court for further proceedings consistent with this opin-

ion.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

JAMES H. ARMSTRONG, M_D.:

MARK MILES, M.D.; SUSAN

WICKLUND, M.D.; SUSAN

CAHILL P.A.; MARY

STRANAHAN, D.O.;

BETH E. THOMPSON, M.D.;

and EDWIN L. STICKNEY,

M.D., on behalf of themselves

and their patients throughout

Montana, the surrounding MEMORANDUM

)

) NO.

)

states and Canada and on ) AND

)

}

)

CV-95-083-GF

behalf of a class of performing ORDER

and referring physicians,

Plaintiffs,

vs.

JOSEPH MAZUREK, in his

official capacity as Attorney

General of the

State of Montana,

Defendant.

10a

I. BACKGROUND

The plaintiffs! instituted this action for declaratory

and injunctive relief under 42 U.S.C. § 1983, challenging

the constitutional validity of Chapter 321 of the 1995

Montana Session Laws, otherwise identified as House Bill

No. 442 and entitled: “An Act Clarifying That Only a

Physician May Perform an Abortion; and Amending Sec-

tions 37-20-103 and 50-20-109, M.C.A.”

The plaintiffs challenge the following three aspects of

Chapter 321 (to be codified at Mont. Code Ann.

§§ 37-20-103 and 50-20-109): (1) an abortion may be per-

formed only by a “licensed physician”; (2) an abortion

may not be performed after the first trimester of preg-

nancy, except in a licensed hospital; and (3) the “solicita-

tion, advertising, or other form of communication that

has the purpose of inviting, inducing, or attracting any

person” to utilize the services of a physician or facility

that performs abortion is banned in the State of Montana.

At the outset, it is important to note the latter two

proscriptions have previously been declared as uncon-

stitutional. The requirement that an abortion performed

after the first trimester must be done in a licensed hospi-

tal was an issue resolved by this court in the case of Doe

v. Esch, No. CV-93-60-GF (judgment entered November

| Plaintiffs Armstrong, Miles and Wicklund are physicians

licensed to practice in the State of Montana who provide

abortion services. Plaintiffs Stranahan, Thompson and Stickney

are physicians licensed to practice in the State of Montana who

routinely refer patients to other abortion providers in the State

of Montana. Plaintiff Cahill is a physician assistant-certified,

who performs abortions in the State ec’ © ontana.

SAMA nel aaa tre leis Mane “Bike 4

lla

26, 1993). The judgment in Esch, which enjoined enforce-

ment of the hospitalization requirement of M.C.A.

§ 50-20-109(1)(b) was entered pursuant to stipulation of

the parties. The State of Montana acknowledges in the

present action that the State of Montana remains bound

by the Esch judgment; a fact which would preclude the

enforcement of the hospitalization requirement. The

advertising /solicitation prohibition, embodied in section

50-20-109(4), is likewise precluded by the judgment

entered in Doe v. Deschamps, 461 F.Supp. 682

(D.Mont.1976). The State of Montana again acknowl-

edges, as it must, that it remains bound by the judgment

in Deschamps from enforcing the prohibition against

advertising /solicitation.

While the State of Montana acknowledges the unen-

forceability of the hospitalization requirement and the

prohibition against advertising, it suggests there exists no

“Justiciable controversy” regarding these provisions since

the State of Montana is precluded by the referenced judg-

ments from enforcing the same. This argument is hardly

compelling in view of the clear unconstitutionality of the

two provisions and a judgment declaring the provisions

unconstitutional and enjoining their enforcement would

be entirely appropriate.

The real focus of this case is upon the constitu-

tionality of the “physicians only” provision of Chapter

321.? The provision is set forth in two separate sections of

Chapter 321 as follows:

* The plaintiffs, in an effort to ensure that the “physicians

only” requirement of Chapter 321 does not become effective,

suggests that the various provisions of Chapter 321 are not

“severable”. Accordingly, so the argument goes, because the

12a

Section 1. Section 37-20-103, MCA, is amended

to read:

37-20-103. Limitations on authority con-

ferred — exception. Except as provided in

37-10-102, nothing in this chapter may be con-

strued to authorize a physician assistant-certi-

fied to perform those functions and duties

specifically delegated by law to persons licensed

as optometrists, as defined under Title 37, chap-

ter 10. A physician assistant-certified may not per-

form an abortion.

Section 2. Section 50-20-109, MCA, is amended

to read:

hospitalization and advertising provisions are unconstitutional,

Chapter 321 must be declared unconstitutional in its entirety.

The argument is without merit. The test for determining

severability of a non-constitutional provision of a statute is well

established. “Unless it is evident that the Legislature would not

have enacted those provisions which are within its power,

independently of that which is not, the invalid part may be

dropped if what is left is ‘fully operative as a law.’ ” New York v.

United States, 112 S.Ct. 2408, 2434 (1992) (quoting, Alaska Airlines,

Inc., v. Brock, 480 U.S. 678, 684 (1987)). The Montana Supreme

Court acknowledged this principle in State v. Lance, 721 P.2d

1258 (Mont. 1986), wherein the court acknowledged the

“elementary principle of constitutional law that ‘the same

statute may be in part constitutional and in part

unconstitutional, and .. . if the parts are wholly independent of

each other, that which is constitutional may stand while that

which is unconstitutional will be rejected.’ ” Lance, 721 P.2d at

1264 (citation omitted). Consistent with the foregoing principle,

while the hospitalization and advertising provisions of Chapter

321 are unconstitutional, the “physicians only” provision may

legitimately be severed if, in fact, it is found to pass

constitutional muster.

13a

50-20-109. Control of practice of abortion.

(1) Ne An abortion may not be performed within

the state of Montana.

(a) except by a licensed physician;

It is important to note that the Montana Legislature

enacted the “physicians only” provision in response to

the judgment entered in Esch. In Esch, the court was not

ultimately called upon to determine whether a statutory

provision precluding the performance of abortions by

anyone other than a licensed physician passed constitu-

tional muster. In response to the complaint in Esch, the

State of Montana acknowledged that the term “licensed

physician”, as used in Mont. Code Ann. § 50-20-109(1)(a)

(1993), included physician assistants who worked under

the direct supervision of a physician pursuant to a “utili-

zation plan” approved by the Montana Board of Medical

Examiners. The State of Montana emphasizes this con-

struction of the term “licensed physician” was compelled

by the then existing statutory law, more particularly

Mont. Code Ann. § 37-20-403 (1993) (physician assistant-

certified recognized as agent of the supervising physi-

cian), Mont. Code Ann. § 37-20-303 (statute draining

authority to the Board of Medical Examiners to approve

physician assistant-certified utilization plans detailing

the permissible range of a physician assistant-certified’s

practice) together with the Board of Medical Examiners’

administrative construction of its authority to approve a

utilization plan which allowed a physician’s assistant

(more specifically plaintiff Susan Cahill P.A.) to perform a

first trimester abortion by “suction curettage”. The statu-

tory amendments embodied in Chapter 321, the State of

l4a

Montana emphasizes, were specifically designed to clar-

ify that only a physician may perform an abortion in the

State of Montana.

The plaintiffs predicate their challenge to the consti-

tutionality of the “physicians only” provision of Chapter

321 upon the following four alternate bases:

(1) the purpose of the provision is to impose a sub-

stantial obstacle in the path of a woman seeking a pre-

viability abortion;

(2) the provision has the effect of imposing a substan-

tial obstacle in the path of a woman seeking a previability

abortion;

(3) the provision violates the bill of attainder clause

of Article I, section 10 of the federal Constitution because

it constitutes a form of legislative punishment directed

specifically against plaintiff Cahill (the only physician

assistant performing abortions in the State of Montana);

and

(4) the provision impermissibly discriminates on the

basis of sex by excluding from the permissible scope of

practice with physician assistants, a type of medical care

sought only by women.

Chapter 321 is to become effective on October 1, 1995.

The plaintiffs have moved the court for preliminary

injunctive relief, pursuant to Fed.R.Civ.P. 62, to preclude

the State of Montana from enforcing the provision of

i i a a a a a

15a

Chapter 321 which bans the performance of first-trimes-

ter abortions by a physician assistant.3 The State of Mon-

tana moves the court, pursuant to Fed.R.Civ.P. 65, to enter

summary judgment in that entity’s favor declaring, in

effect, the validity of the “physicians only” provision of

Chapter 321.

The plaintiffs’ request for preliminary injunctive

relief was heard before the court on September 29, 1995.

Having considered the arguments advanced by the par-

ties in support of their respective positions, the court

deems it appropriate to DENY the plaintiffs’ request that

the court preliminarily enjoin the State of Montana from

enforcing the “physicians only” provision of Chapter 321.

II. DISCUSSION

A. STANDARD FOR PRELIMINARY INJUNC-

TIVE RELIEF

The traditional equitable criteria for granting prelimi-

nary injunctive relief are “(1) a strong likelihood of suc-

cess on the merits; (2) the possibility of irreparable injury

to plaintiff if the preliminary relief is not granted; (3) a

balance of hardships favoring the plaintiff.” Los Angeles

Memorial Coliseum Comm. v. National Football League, 634

F.2d 1197, 1200 (9th Cir.1980). Alternatively, the moving

party must demonstrate “either (1) a combination of

probable success on the merits and the possibility of

irreparable injury or (2) that serious questions are raised

* Consistent with the court's previous observations, the

State of Montana is properly enjoined from enforcing the

hospitalization and advertising provisions of Chapter 321.

16a

and the balance of hardships tip sharply in its favor.” Id.,

at 1201. “These are not separate tests but the outer

reaches of a single continuum.” I[bid., accord, People of

Village of Gambell v. Hodel, 774 F.2d 1414, 1419 (9th

Cir.1985). In the two tests, “the required showing of harm

varies inversely with the required showing of mer-

itoriousness.” San Diego Committee Against Registration

and the Draft v. The Governing Board of Grossmont Union

High School, 790 F.2d 1471, 1473 (9th Cir.1986). Analysis of

these criteria under the circumstances of the present case,

compel the court to deny the plaintiffs’ motion for pre-

liminary injunctive relief.

The court recognizes that the plaintiffs’ challenge to

the “physicians only” provision raises a serious question,

but is not convinced that under the balance of hardships

is such that the court must strike the balance in favor of

the plaintiffs’ request. While the court’s refusal to grant

the preliminary injunctive relief requested will operate to

preclude plaintiff Cahill from performing abortions, the

hardship resulting from the disruption of the status quo, a

hardship borne only by Cahill, is not accompanied by a

sufficient showing of merit in the plaintiffs’ position that

would warrant provisional relief.

B. “UNDUE BURDEN”

In Planned Parenthood v. Casey, 120 L.Ed.2d 674 (1992),

the Supreme Court, reiterating a woman’s right to choose

to terminate her pregnancy prior to viability is protected

by the Due Process Clause of the fourteenth amendment,

acknowledged that in order to “protect the central right

— — ee —s

eS ee ee ee i

17a

recognized by Roe v. Wade while at the same time accom-

modating the States’ profound interest in potential life,

the Court would employ the ‘undue burden’ analysis in

determining whether a state regulation impermissibly

infringes upon a woman’s right to choose to terminate or

continue her pregnancy before viability.” 120 L.Ed.2d at

711- 715. The Court stated “an undue burden exists, and

therefore a provision of law is invalid if its purpose or

effect is to place a substantial obstacle in the path of a

woman seeking an abortion before the fetus attains via-

bility.” Id., at 715. In discussing the application of the

“undue burden” analysis to the context of state regula-

tion of abortion procedures, the Court explained:

The fact that a law which serves a valid pur-

pose, one not designed to strike at the right

itself, has the incidental effect of making it more

difficult or more expensive to procure an abor-

tion cannot be enough to invalidate it. Only

where State regulation imposes an undue bur-

den on a woman’s ability to make this decision

does the power of the State reach into the heart

of the liberty protected by the Due Process

Clause. ... , A finding of an undue burden is a

shorthand for the conclusion that a State regula-

tion has the purpose or effect of placing a sub-

stantial obstacle in the path of a woman seeking

an abortion of a non-viable fetus. A statute with

this purpose is invalid because the means cho-

sen by the State to further the interest in poten-

tial life must be calculated to inform the

woman's free choice, not hinder it. In [sic] a

statute which, while furthering the interest in

potential life or some other valid State interest,

has the effect of placing a substantial obstacle in

—_

18a

the path of a woman’s choice cannot be consid-

ered a permissible means of serving its legiti-

mate end.

Id., at 712-715.

In summarizing its decision in Casey, the Court made

the following statement, inter alia, that is of particular

importance in the present case:

As with any medical procedure, the State may

enact regulations to further the health or safety

of a woman seeking an abortion. Unnecessary

health regulations that have the purpose or

effect of presenting a substantial obstacle to a

woman seeking an abortion impose an undue

burden on the right.

Id., at 716.

The plaintiffs in the present case contend that Chap-

ter 321 has both the purpose and effect of placing a “sub-

stantial obstacle” in the path of a woman seeking an

abortion of a non-viable fetus and must be, consistent

with Casey, considered invalid. In support of their posi-

tion, the plaintiffs argue that all available evidence shows

that properly trained physician assistants are capable of

performing first-trimester abortions with complication

rates equal to or lower than corresponding rates for phy-

sicians. Consequently, the plaintiffs argue, the purpose of

Chapter 321 is not the protection of women’s health, but a

misguided attempt to limit access to abortions in the State

of Montana. Likewise, the plaintiffs argue, because the

effect of Chapter 321 is to reduce the ability of a woman to

obtain an abortion, the “physicians only” provision con-

stitutes a substantial obstacle to the right of a woman to

obtain an abortion of a non-viable fetus.

19a

The State of Montana, on the other hand, asserts the

“physicians only” provision of Chapter 321 is a legitimate

exercise of the State’s authority to foster the health and

safety of a woman seeking an abortion in the State of

Montana. In the opinion of the State, the “physicians

only” requirement that [sic] survives scrutiny under the

“undue burden” analysis enunciated in Casey. The fact

the “physicians only” provision may have the incidental

effect of increasing the cost or decreasing the availability

of abortion services, the State argues, is not fatal under

Casey's “undue burden” analysis. Support for the State’s

argument is found in previous Supreme Court decisions.

In Connecticut v. Menillo, 423 U.S. 9 (1975), the Supreme

Court recognized that even in the first trimester of preg-

nancy, the State’s interest in maternal health is sufficient

to justify a requirement that an abortion be performed

only “by medically competent personnel.” 423 U.S. at 11.

In Roe v. Wade, 410 U.S. 113 (1973), the Court observed

that a “State may define the term ‘physician’ . . . to mean

only a physician currently licensed by the State, and may

proscribe any abortion by a person who is not a physician

as so defined.” 410 U.S. at 165.

The plaintiffs, however, implore the court not to rely

upon the dicta enunciated in Menillo and Roe in determin-

ing whether the “physicians only” provision of Chapter

321 withstands analysis under the “undue burden” stan-

dard of Casey. The plaintiffs contend that focus is prop-

erly brought to bear upon the question of whether the

State of Montana may legitimately preclude a woman

from seeking an abortion from a “medically competent”

health professional other than a licensed physician. Men-

illo, 423 U.S. at 10.

20a

There exists a paucity of case law addressing the

precise issue presented in this case. The Sixth Circuit

Court of Appeals in the case of Birth Control Centers, Inc.

v. Reizen, 743 F.2d 352 (6th Cir.1984), was called upon to

address the validity of a provision of the Public Health

Code of Michigan, which provided that a physician per-

forming surgery at a “free-standing surgical outpatient

facility” (“FSOF”) must:

Possess adequate qualifications acquired by spe-

cial training and experience to evaluate the

medical . . . conditions, potential risks, recog-

nize and adequately treat emergency complica-

tions encountered in any procedure undertaken,

and perform the procedure in accordance with

the usual standards of medical . . . practice.

743 F.2d at 363.

In addressing the argument that the referenced provi-

sion of the Code required special training to perform

surgery at an FSOF the court, based upon the State of

Michigan’s concession that Rule 35(1) does not require

that only a specialist perform abortions [sic]. Id., at 364.

The court of appeals noted that “Michigan may constitu-

tionally insist that only properly licensed physicians be

permitted to perform abortions at FSOFs.” Id., at 364. The

court in Reizen relied upon dictum stated by the Supreme

Court in Roe v. Wade and Menillo that has previously been

discussed.

The State, as would be expected, argues Reizen pro-

vides support for its position in this case. The plaintiffs,

on the other hand, suggest Reizen is distinguishable and

stands only for the proposition that because the Michigan

Code provision at issue did not impose a requirement of

eS Nee

21a

special physician expertise to perform an abortion at an

FSOF, the rule was consistent with the rationale of Roe v.

Wade. Reizen, much like the Supreme Court cases dis-

cussed, does not address the precise issue before the

court in the present case.

In assessing whether the plaintiffs are likely to ulti-

mately succeed in their contention the “physicians only”

provision of Chapter 321 constitutes an “unconstitutional

burden” under the standard enunciated in Casey, the

court remains mindful of the following statement in

Casey:

What is at stake is the woman’s right to make

the ultimate decision, not a right to be insulated

from all others in doing so. Regulations which

do no more than create a structural mechanism

by which the State, . . . may express profound

respect for the life of the unborn are permitted,

if they are not a substantial obstacle to the

woman's exercise of the right to choose. (cita-

tion omitted) . . . Regulations designed to foster

the health of a woman seeking an abortion are

valid if they do not constitute an undue burden.

120 L.Ed.2d at 715.

As previously discussed, the State of Montana takes

the position the “physicians only” provision embodies a

reasonable attempt by the State of Montana to foster the

health of a woman seeking an abortion. The ultimate

inquiry, however, is whether the purpose or effect of the

provision is to place a substantial obstacle in the path of a

woman who chooses to exercise her right to seek an

abortion before the fetus attains viability. Casey, 120

L.Ed.2d at 715.

22a

Undoubtedly, as the history attendant to the Montana

Legisiature’s enactment of Chapter 321 reflects, not all of

the legislators voting in favor of Chapter 321 were moti-

vated by a desire to foster the health of a woman seeking

an abortion. At the same time, this court cannot usurp the

function of the Montana State Legislature by assuming, as

the plaintiffs ask it to do, that none of the individual

legislators approving the passage of Chapter 321 was

motivated by a desire to foster the health of a woman

seeking an abortion. In ascertaining whether the “pur-

pose” of Chapter 321 constitutes an undue burden on the

right of a woman seeking an abortion, the court’s inquiry

is narrow in view of the fact that “the Constitution gives

the States broad latitude to decide that particular func-

tions may be performed only by licensed professionals,

even if an objective assessment might suggest that those

same tasks could be performed by others.” Casey, 120

L.Ed.2d at 720 (citing, Williamson v. Lee Optical of Okla-

homa, Inc., 348 U.S. 483 (1955)). There exists insufficient

evidence in the record to support the conclusion the

requirement that a licensed physician perform an abor-

tion would amount, “in practical terms, to a substantial

obstacle to a woman seeking an abortion.” Id. Accord-

ingly, it is unlikely that the plaintiffs will prevail upon

their suggestion that the requirement constitutes an

“undue burden” within the meaning of Casey.

C. EQUAL PROTECTION

The plaintiffs next challenge Chapter 321, and partic-

ularly the “physicians only” provision as violative of

their right to equal protection of the law. Specifically,

plaintiffs assert the “physicians only” provision operates

ac i aa naa

23a

to discriminate on the basis of gender, in that it selec-

tively removes from the scope of practice of physician

assistants a health care service sought only by women.

The plaintiffs bolster their position with the argument

that physician assistants have authority under Montana

law to provide certain medical treatments for men which

pose greater health risks than first-trimester abortions do

to women. The State of Montana characterizes the equal

protection challenge as meritless.

The parties, as might be expected, disagree upon the

appropriate standard of scrutiny to which the “physicians

only” provision of Chapter 321 should be subjected. The

plaintiffs argue that because the provision is a gender-

base restriction, the State of Montana bears the burden of

showing “an exceedingly persuasive justification” for the

classification. Mississippi University of Women v. Hogan,

458 U.S. 718, 724 (1982). Under this burden, the State is

required to show “at least that the classification serves

‘Important governmental objectives and that the discrimi-

natory means employed’ are ‘substantially related to the

achievement of those objectives.’ ” 458 US. at 724 (cita-

tions omitted). The State of Montana argues persuasively,

however, that the higher level of scrutiny suggested by

the plaintiffs is inappropriate and that the validity of the

“physicians only” provision is to be determined under

the “rational basis” test.

The Supreme Court has consistently recognized that

the statutory classification “neither proceeds along sus-

pect lines nor infringes fundamental constitutional rights

[it] [sic] must be upheld against equal protection chal-

lenge if there is any reasonably conceivable state of facts

that could provide a rational basis for the classification.”

24a

F.C.C. v. Beach Communications, Inc., 113 S.Crt. 2096, 2101

(1993). Consistent with its argument pertaining to the

“undue burden” analysis, the State reiterates the well-

recognized proposition that the State has a legitimate

interest in preserving potential life and protecting mater-

nal health; a proposition recognized in Roe v. Wade itself

and in subsequent cases dealing with the regulation of

abortion procedures. See, Beal v. Doe, 432 U.S. 438, 445

(1976) (state interests described as “valid and impor-

tant”); Harris v. McRae, 448 U.S. 297, 324 (1980) (state’s

interest described as “important and legitimate”); Casey,

120 L.Ed.2d at 711 (“the state has legitimate interest from

the outset of the pregnancy in protecting the health of the

woman and the life of the fetus that may become a

child”).

A review of the many abortion regulation cases

decided by the Supreme Court reflect the Court has ordi-

narily reviewed the challenged regulations under the

rational basis test. Of particular importance is the Court's

decision in Bray v. Alexandria Women’s Health Clinic, 122

L.Ed.2d 34 (1993), wherein the Court rejected the claim

that 42 U.S.C. § 1985(3) provides a federal cause of action

against persons obstructing access to abortion clinics. In

reaching its decision, the Court observed that opposition

to voluntary abortion could not constitute invidious dis-

crimination against women as a class. Id.

As a practical matter, the plaintiffs’ equal protection

challenge, when analyzed under the rational basis test,

will rise or fall with its “undue burden” challenge. If the

court determines that the “physicians only” provision

constitutes an impermissible obstacle to the right of a

ec ae

25a

woman to obtain a previability abortion, it would neces-

sarily follow that there would exist no rational basis for

the classification.

D. BILL OF ATTAINDER

Article I, section 10, paragraph 1 of the Constitution

prohibits States from enacting laws in the form of retroac-

tive legislation that imposes punishment on specific indi-

viduals, laws commonly referred to as “Bills of

Attainder.” The plaintiffs argue the “physicians only”

provision is, in its essence, a Bill of Attainder designed to

impose retroactive punishment upon plaintiff Susan

Cahill for her having provided abortion services.* The

plaintiffs argue the “physicians only” provision is puni-

tive in nature because it inflicts punishment upon Cahill

through the destruction of the practice she has developed

over time.

In assessing whether a particular legislative act is

violative of the Bill of Attainder Clause, the Supreme

Court has “applied a functional test of the existence of

punishment, analyzing whether the law under challenge,

viewed in terms of the type and severity of burdens

imposed, reasonably can be said to further non-punitive

* The Bill of Attainder Provision of the Constitution

proscribes any legislative act “no matter what [its] form, that

applie[s] either to named individuals or to easily ascertainable

members of a group in such a way as to inflict punishment on

them without a judicial trial.” United States v. Lovett, 328 U.S.

303, 315 (1946). As noted, Susan Cahill is the only physician

assistant-certified who presently performs abortions in the State

of Montana.

26a

legislative purposes. (citations omitted). Where such

legitimate legislative purposes do not appear, it is reason-

able to conclude that punishment of individuals disad-

vantaged by the enactment was the purpose of the

decision makers.” Nixon v. Administrator General Services,

433 U.S. 425, 475-76 (1977). As previously discussed, the

“physicians only” provision can be said to reasonably

further a non-punitive legislative purpose, i.e., fostering

the health of a woman seeking an abortion. Consequently,

it is unlikely that the plaintiffs will prevail in their sug-

gestion that under the “functional” test, the provision

constitutes an impermissible Bill of Attainder.

The second aspect of the plaintiffs’ challenge based

upon the Bill of Attainder Clause focuses upon the

“motivational” test discussed in Nixon, which is

described as follows: “inquiring whether the legislative

record evinces a [legislative] intent to punish.” 433 U.S. at

478. Application of this test requires the court to review,

in detail, the legislative record attendant to the enactment

of Chapter 321. The determinative inquiry is whether the

legislative record reflects the existence of an intent to

punish Cahill for her past conduct in performing abor-

tions as opposed to the legitimate legislative intent to

regulate the performance of abortion services in the State.

In judging the constitutionality of Chapter 321, the court

may only look to its terms, to the intent expressed by the

members of the Montana Legislature who voted its pas-

sage, and to the existence or non-existence of a legitimate

explanation for its apparent effect. Nixon, 433 U.S. 484.

While the court will conduct an extensive review of the

legislative history attendant to the passage of Chapter

321, it is simply unpersuaded, at this point, that the

OTT

i i re eee see

27a

plaintiffs will prevail upon the merits of this aspect of

their argument, or that the hardships attendant the

court’s decision not to preserve the status quo is decidedly

tipped in the plaintiffs’ favor.

Therefore, for the reasons set forth herein,

IT IS HEREBY ORDERED that the plaintiffs’ motion for

preliminary injunctive relief is GRANTED to the extent the

State of Montana, its agents and employees, are enjoined

from enforcing Mont. Code Ann. § 50-20-109(1)(b) and Mont.

Code Ann. § 50-20-109(4) as amended by Chapter 321, Sec-

tion 2 of the Montana Session Laws (1995).

The plaintiffs’ motion for preliminary injunctive

relief is, however, DENIED to the extent it seeks to pre-

clude the State of Montana from enforcing Mont. Code

Ann. § 37-20-103 and Mont. Code Ann. § 50-20-109(1)(a)

as amended by Chapter 321, Sections 1 and 2 of the

Montana Session Laws (1995).

The parties are advised that the court shall forthwith

enter a schedule for the final disposition of this action.

The Clerk of Court shall immediately notify the par-

ties as to the entry of the present order.

DATED this 29th day of September, 1995.

/s/ Paul G. Hatfield

PAUL G. HATFIELD,

CHIEF JUDGE

UNITED STATES

DISTRICT COURT

28a

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES H. ARMSTRONG, M.D., ) No. 95-35962

et al., ) D.C. No.

Plaintiffs-Appellants, 7 CV-95-83-PGH

vs. ) ORDER

JOSEPH MAZUREK, Attorney ) (Filed

General of the State of Montana, Oct. 24, 1996)

Defendant-Appellee. )

)

Before: PREGERSON, CANBY and HAWKINS, Circuit

Judges.

The panel has voted to deny appellant’s petition for

rehearing and to reject the suggestion for rehearing en

banc.

The full court has been advised of the suggestion for

rehearing en banc and no active judge has requested a

vote on whether to rehear the matter en banc. Fed. R.

App. P. 35.

The petition for rehearing is denied and the sugges-

tion for rehearing en banc is rejected.

29a

CHAPTER NO. 321

[HB 442]

AN ACT CLARIFYING THAT ONLY A PHYSICIAN MAY

PERFORM AN ABORTION; AND AMENDING SEC-

TIONS 37-20-103 AND 50-20-109, MCA.

Be it enacted by the Legislature of the State of Montana:

Section 1. Section 37-20-103, MCA, is amended to

read:

“37-20-103. Limitations on Authority conferred -

exception. Except as provided in 37-10-102, nothing in

this chapter may be construed to authorize a physician

assistant-certified to perform those functions and duties

specifically delegated by law to persons licensed as

optometrists, as defined under Title 37, chapter 10. A

physician assistant-certified may not perform an abortion.”

Section 2. Section 50-20-109, MCA, is amended to

read:

“50-20-109. Control of practice of abortion. (1) Ne

An abortion may not be performed within the state of

Montana:

(a) except by a licensed physician;

(b) after the first 3 months of pregnancy, except in a

hospital licensed by the department;

medical judgment, the abortion is necessary to preserve

the life or health of the mother.

(2) an abortion under subsection (1)(c) may only be

performed if:

30a

(a) the foregoing judgment of the physician who is

to perform the abortion is first certified in writing by him

the physician, setting forth in detail the facts relied upon

whieh-he-treltes in making sttes ‘he judgment; and

(b) two other licensed physicians have first exam-

ined the patient and concurred in writing with stteh the

judgment. The feregeing certification and concurrence in

this subsection (2)(b) is not required if a licensed physician

certifies that the abortion is necessary to preserve the life

of the mother.

(3) The timing and procedure used in performing

an abortion under subsection (1)(c) of this section must be

such that the viability of the fetus is not intentionally or

negligently endangered, as the term “negligently” is

defined in 45-2-101(37). The fetus may be intentionally

endangered or destroyed only if necessary to preserve the

life or health of the mother.

(4) Ne A physician, facility, or other person or

agency skheH may not engage in solicitation, advertising,

or other form of communication heaving that has the pur-

pose of inviting, inducing, or attracting any person to

come to stteh tne physician, facility, or other person or

agency to have an abortion or to purchase abortifacients.

(5) The utilization plan of a physician assistant-certified

may not provide for performing abortions.

(5)(6) Violation of subsections (1), (2), amd (3) and

(5) efthts-seetion is a felony. Violation of subsection (4) ef

this-section is a misdemeanor.”

Approved April 3, 1995

3la

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

JAMES H. ARMSTRONG, M.D.;

MARK MILES, M.D.; SUSAN

WICKLUND, M.D.; SUSAN

CAHILL, P.A.;

MARY STRANAHAN, D.O.;

BETH E. THOMPSON, M.D.;

and EDWIN L. STICKNEY, M.D.,

on behalf of themselves and

their patients throughout ORDER

Montana, the surrounding states GRANTING

)

) Cause No.

)

and Canada and on behalf of a ) INJUNCTION

)

CV 95-083-

GF-PGH

class of performing and referring PENDING

physicians, APPEAL

(Filed

‘96 Nov. 5)

Plaintiffs,

JOSEPH MAZUREK, in his

official capacity as Attorney

General of the State of Montana,

Defendant.

Upon stipulation of the parties, and good cause

appearing,

IT IS HEREBY ORDERED that the parties’ request for

an order granting an injunction pending appeal pursuant

to Fed. R. Civ. P. 62(c) is GRANTED on the following

terms:

32a

1. The injunction shall apply only to Plaintiff Susan

Cahill and will allow her to practice under those terms in

effect prior to October 1, 1995. Plaintiff Cahill must be

supervised by a licensed physician and shall operate

under the physician assistant-certified utilization plan

previously approved by the Montana State Board of Med-

ical Examiners that includes the performance of abortions

pursuant to the provisions of Mont. Code Ann. Title 37,

chapter 20. No other physician assistants-certified will be

allowed to perform abortions in Montana under the terms

of this stipulation or the Court’s order.

2. This injunction pending appeal will continue

through the disposition of the Plaintiffs’ request for pre-

liminary injunction, and no hearing on the motion for

preliminary injunction will take place until after disposi-

tion of the Defendant’s petition for writ of certiorari.

Dated this 4 day of November, 1996.

/s/ Paul G. Hatfield

PAUL G. HATFIELD

United States

District Judge

33a

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

JANE DOE, et al., ) Cause No.

Plaintiffs, ) CV-93-060-GF-PGH

— JUDGMENT

) (Filed

TOM ESCH, et al., Nov. 26, 1993)

Defendants. )

Pursuant to the parties Stipulation for Judgment

which the Court has reviewed and found proper,

It Is Hereby Ordered and Adjudged:

That the Defendants, their agents, employees, suc-

cessors in office, attorneys, and those persons in active

concert or participation with them are hereby enjoined

from enforcing the provisions of Mont. Code Ann.

§ 50-20-109(1)(b) against the Plaintiffs with respect to any

abortion performed through the second trimester, as mea-

sured by the woman’s last menstrual period, on the

ground that the abortion was not performed in a licensed

hospital.

That the Defendants, their agents, employees, suc-

cessors in office, attorneys, and those persons in active

concert or participation with them are enjoined from

enforcing the provisions of Mont. Code Ann.

§ 50-20-109(1)(a) with respect to a physician assistant-

certified who is supervised by a licensed physician, has

been approved for such status by the Montana State

34a

Board of Medical Examiners, and has received Board

approval of a physician assistant-certified utilization plan

that includes the performance of abortions.

That the Defendants shall tender to Plaintiff Arm-

strong the sum of $33,500 in full discharge of any claim

for damages under 42 U.S.C. § 1983 or Montana law and/

or for attorney’s fees and costs under 42 U.S.C. § 1988,

which he or other plaintiffs herein have or could have

asserted against the Defendants with respect to applica-

tion of or prosecution under the Montana Abortion Con-

trol Act.

DATED at Great Falls, Montana this 26 day of Nov,

1993. |

/s/ Paul G. Hatfietd

District Judge

SPST PPT

35a

I attest that this is a true copy of

an original document held by the

Montana State Archives.

/s/ Kathryn Otto

State Archivist

MINUTES

MONTANA HOUSE OF REPRESENTATIVES

54th LEGISLATURE —- REGULAR SESSION

COMMITTEE ON HUMAN SERVICES & AGING

Call to Order: By CHAIRMAN DUANE GRIMES, on

February 10, 1995, at 3:00 p.m.

ROLL CALL

Members Present:

Rep. Duane Grimes, Chairman (R)

Rep. John C. Bohlinger, Vice Chairman (Majority) (R)

Rep. Carolyn M. Squires, Vice Chairman (Minority) (D)

Rep. Chris Ahner (R)

Rep. Ellen Bergman (R)

Rep. Bill Carey (D)

Rep. Dick Green (R)

Rep. Antoinette R. Hagener (D)

Rep. Deb Kottel (D)

Rep. Bonnie Martinez (R)

Rep. Brad Molnar (R)

Rep. Bruce T. Simon (R)

Rep. Liz Smith (R)

Rep. Susan L. Smith (R)

Rep. Loren L. Soft (R)

Rep. Kenneth Wennemar (D)

36a

Members Excused: None

Members Absent: None

Staff Present: David Niss, Legislative Council

Jacki Sherman, Committee Secretary

Please Note: These are summary minutes. Testimony

and discussion are paraphrased and condensed.

Committee Business Summary:

Hearing: HB 442

Executive Action: HB 406 TABLED

HB 328 TABLED

HB 236 TABLED

HB 436 DO PASS

AS AMENDED

HB 435 TABLED

HB 442 DO PASS

(Tape: 1; Side: A; Approx. Counter: 000; Comments: n/a.)

HEARING ON HB 442

Opening Statement by Sponsor:

REP. SUSAN SMITH, HD 84, Kalispell, stated that HB

442 would clarify that only a physician could perform an

abortion. She felt that physician assistants were not quali-

fied enough to perform the complicated procedure. She

described the levels of medical care that a physician

assistant is allowed to perform. EXHIBITS 1 and 2

Proponents’ Testimony:

Tim Whalen, Montana Right to Life, EXHIBITS 3 and 4

Nancy Vigel, Montana Right to Life, gave personal testi-

mony about when she had an abortion at age 15 and how

37a

badly she was treated physically and emotionally by the

physician assistant.

(Tape: 1; Side: A; Approx. Counter: 715; Comments: NA.)

Arlette Randash, Eagle Forum, quoted the Montana

Code Annotated 50.20.109 which states that in order to

protect the well-being of the mother, no abortion wil] be

performed in the state except by a licensed physician. She

felt the state has lacked the will to uphold the law which

would aim to guarantee the quality of medical care.

Sharon Hoff, Montana Catholic Conference, felt that the

safely [sic] of women are at risk, with a 2% rate of uterus

perforation nationwide with about 63 occurrences in

Montana in 1993.

Laurie Koutnik, Executive Director of Montana Chris-

tian Coalition, said the abortion procedure should be

reserved for those who are professionally trained. She

read testimony from a woman who had an abortien and

was physically and emotionally abused by a physician’s

assistant. EXHIBIT 5

(Tape: 1; Side: B; Approx. Counter: 00; Comments: NA.)

Charles Lorentzen, Kalispell, stated that there are con-

trols on asbestos, water and air quality and airlines for

health and safety reasons. He said that because abortion

would not affect many people in the committee room the

safety issue has been looked over. If abortion was more

real in their own lives they would worry more about the

safety. Other professionals in other areas are required to

be qualified for the work they do and abortionists should

be too.

(Tape: 1; Side: B; Approx. Counter: 287; Comments: NA.)

Opponents’ Testimony:

Scott Crichton, Executive Director of the American Civil

Liberties Union (ACLU) of Montana. EXHIBIT 6

Janet Crepps, attorney for the Center for Reproductive

Law and Policy, Colorado, represented abortion pro-

viders in Montana in the challenge to the committees of

the Abortion Control Act that require abortions to be

performed before the first trimester in a hospital. She felt

that if HB 442 was passed and enacted it would be subject

to challenge and be found unconstitutional under both

the state and federal constitutions. The Montana Consti-

tution contains an explicit right of privacy which will be

protected in the area of abortions. She stated that there

was no medical evidence that showed more complica-

tions from abortions performed by physician assistants

than by physicians.

(Tape: 1; Side: B; Approx. Counter: 633; Comments: NA.)

Testimony was read on behalf of Jennifer Krueger, Presi-

dent of the Montana Academy of Physician Assistants,

by a woman named Lee whose last name was not audible

on the tape. EXHIBIT 7

Sarah Holmes read testimony on behalf of Mindy Opper,

Physician Assistant-Certified, Missoula. EXHIBIT 8

(Tape: 1; Side: B; Approx. Counter: 860; Comments: NA.)

Eliza Frazer, Executive Director of the Montana Affiliate

of the National Abortion and Reproductive Rights

Action League, stated that there was no medical basis for

HB 442 and that the bill was political, not medical. She

quoted and explained statistics from the American Jour-

nal of Public Health. EXHIBIT 9

39a

Kate Cholewa, Montana Women’s Lobby, stated her con-

cern that women have access to safe reproductive care.

She opposed the bill because it did not seem to be based

on any evidence of malpractice.

(Tape: 2: Side: A; Approx. Counter: 00; Comments: NA.)

She stated that the entire profession should not be

attacked on the basis of a few bad experiences.

Vickie Amundson, Montana Business and Professional

Women, felt that since there was not any medical reason

why physician assistants could not perform abortions, HB

442 would just be another obstacle to affordable health

care for women.

REP. CAROLYN SQUIRES read testimony on behalf of

the American Academy of Physician Assistants, Vir-

ginia. EXHIBIT 10

James S. Bonnet, M.D., President-Elect, Montana Board

of Medical Examiners, submitted a letter opposing HB

442. EXHIBIT 11

Informational Testimony: None

(Tape: 1; Side: A; Approx. Counter: 124; Comments: NA.)

Questions from Committee Members and Responses:

REP. BRAD MOLNAR asked if there would be any con-

stitutional implications to the bill and Ms. Crepps replied

that under the Undue Burden Standards established by

the Supreme Court a bill will be invalid if it has any

purpose or effect of placing a substantial obstacle in the

path of women seeking an abortion based on the lack of

medical evidence.

40a

REP. MOLNAR asked for clarification on what other

states allow. Ms. Crepps explained that are other states

that have schemes that allow physician assistants to per-

form certain levels of service with a doctor present.

REP. MOLNAR stated that the legislature and not the

boards has dictated who may provide certain services in

the State of Montana. He said that currently the law says

that only a physician may perform an abortion. Ms.

Crepps replied that there was not evidence that physician

assistants were incompetent to perform abortions.

REP. MOLNAR clarified the statistics that were pre-

sented by Ms. Frazer.

(Tape: 2; Side: A; Approx. Counter: 432; Comments: NA.)

REP. LIZ SMITH stated that after approval by the board

physician assistants are allowed to practice under the

supervision of a doctor and asked what level of education

are physician assistants required to have. Marise K. John-

son, MD, Kalispell, answered that there are various pro-

grams with a variety of background training, but they all

have to document procedures in order to get privileges

through the Board of Medical Examiners.

REP. L. SMITH asked for clarification as to why only two

states allow physician assistants to perform abortions.

Ms. Crepps replied that the physician assistant scheme

has not been set up to allow them to do that level of

medical procedure.

(Tape: 2; Side: A; Approx. Counter: 668; Comments: NA.)

REP. SQUIRES said that the doctor has the duty to dele-

gate responsibilities to physician assistants that they were

4la

qualified to do and would supervise them, getting rid of

one if he did not meet up to standards.

REP. SQUIRES asked Susan Russell, Board of Medical

Examiners, if the procedures that are involved in per-

forming abortions are within the scope and practice for a

physician assistant. Ms. Russell stated that she had a

copy of the Standard Physician Assistant Utilization plan

and that plan was established between the physician and

physician assistant and is examined by the Board of

Examiners to ensure they are in compliance.

REP. SQUIRES asked if Dr. Armstrong and Ms. Cahill

were under such a plan and if there was a problem with

that plan or any complaints filed. Ms. Russell replied

that they were under a plan and there were no problems

and no disciplinary charges brought against either indi-

vidual.

REP. BONNIE MARTINEZ asked Ms. Crepps if there

was anything in the law that says that the physician

assistants can perform abortion services if that assistant

informs the patient prior to the service.

(Tape: 2; Side: B; Approx. Counter: 00; Comments: NA.)

Ms. Crepps replied that she could answer how it goes for

Dr. Armstrong’s clinic, which may be different than the

requirements of the law. Someone could request Dr. Arm-

strong if they choose or they could be treated by either

one if they do not express a preference.

REP. MARTINEZ stated that she thought a patient

should be informed of that information before they make

a decision about who they want to see. Ms. Crepps said if

that is an appropriate procedure then the committee

42a

should consider that as an amendment, but not to isolate

abortion as one procedure not to be performed by the

assistant because of that problem.

REP. LOREN SOFT asked according to Montana Code

50.20.109 who can perform abortions and what was the

legislative intent when that law was put on the books.

Ms. Crepps responded the abortions shall be performed

by physicians. She thought the intent under section 109

was to ensure that incompetent non-physicians were pro-

hibited from performing abortions and that when the

Physician Assistant Statute was enacted the intent was to

provide greater access to competent medical care.

REP. SOFT followed up by clarifying that as time

changes so does the legislative intent and asked why the

abortion control act was not enforced. Ms. Crepps

responded that several provisions of the abortion control

act are currently unenforceable because they are uncon-

stitutional or there was an agreement not to enforce the

provision.

REP. SOFT asked for examples of comparable levels of

elective. procedures. Ms. Crepps answered that the level

of pain medication involved would be a' consideration.

REP. SOFT asked Mr. Whalen his opinion on the abortion

control act. He replied that the reason the act was not

enforced was that the attorney general of Montana was in

favor of abortion and it was a political decision.

REP. SOFT asked about the unconstitutionality of section

4 of the bill. Mr. Whalen said that the bill did not address

the advertising issue.

43a

REP. SOFT asked Mr. Whalen if he was aware of any

other states that allowed physician assistants to perform

abortions and he said no, not besides Vermont.

REP. L. SMITH asked for a copy of the utilization plan

for physician assistants and Ms. Russell said she had a

copy of the document and would answer questions from

it.

Lance Melton, attorney for the Department of Com-

merce, listed and explained a few of the procedures that

physician assistants were allowed to perform.

(Tape: 2; Side: B; Approx. Counter: 407; Comments: NA.)

REP. SQUIRES clarified that in the standardized plan

abortion was being singled out from all the other services

a physician assistant can perform to the uterus. Mr.

Melton agreed.

REP. BRUCE SIMON asked Mr. Crichton how many

other parts of the abortion control act he thought were

unconstitutional. He responded that he was not prepared

to answer to all the sections, but his concern involved

opening up minor changes in the part of the law that was

not enforced.

REP. SIMON stated that when an amendment was com-

pleted in a section of the law, the entire section is

reprinted, and that the reason the state has chosen not to

enforce all sections of the abortion control act was

because they would be subject to constitutional challenge.

Mr. Crichton agreed.

REP. SIMON stated that under the plan physician assis-

tants were able to give treatment and basic procedures

and asked how much was allowed regarding surgery. Mr.

44a

Melton explained that according to the statute 37.20.403 a

physician assistant can act in the stead of a physician if

supervised by a licensed physician, is licensed by the

Board of Medical Examiners and has received Board

approval of a physician assistant-certified utilization

plan. A health care provider shall consider the instruc-

tions of the physician assistant-certified as being the

instructions of the supervising physician as long as the

instructions concern the duties delegated to the physician

assistant-certified under the utilization plan.

Mr. Melton referred to the plan and explained that physi-

cian assistants can administer treatment that would

involve minor surgical techniques, and those were listed

in the plan under section 37.20.301 and subsection 3.

(Tape: 3; Side: A; Approx. Counter: 00; Comments: NA.)

REP. MARTINEZ asked if the patient was not informed

of the choice of providers and received treatment from a

physician assistant would the patient be charged for the

physician’s service. Dr. Johnson answered that physician

assistants do not charge as much as a physician for the

-. same services given and would prefer the patient be

informed as to their choices of medical providers.

REP. SOFT again asked for an idea of an elective pro-

cedure similar to abortion and Mr. Melton referred him

to page 16 of the utilization plan.

(Tape: 3; Side: A; Approx. Counter: 200; Comments: REP.

MOLNAR made comments and asked questions that were

not audible on the tape.)

REP. SQUIRES asked the Board’s position on statutory

authority. Mr. Melton replied that they do have authority

45a

and gave a few specific examples including section

37-20-202 and 37-20-301 which clarified the Board’s

authority.

REP. SQUIRES asked how long the utilization plan was

and did some services overlap. Mr. Melton replied that

the plan was 24 pages and is on record with the Board of

Medical Examiners.

REP. MOLNAR asked what the intention of HB 422 was.

REP. S. SMITH responded that the intent was to protect

women who are seeking a legal abortion from possible

complications and the way to ensure that was to provide

the most qualified accessible medical care possible. Abor-

tion is an elective procedure and not an emergency situa-

tion.

REP. MOLNAR asked if REP. S. SMITH would be willing

to add an amendment (inaudible) and she said it would

be a good idea.

REP. BILL CAREY asked the sponsor to look at the study

from Vermont where the physician assistants outnumber

the physicians and the care from the assistants is better

than that from the physicians. He asked why the state-

ments from the opponents were not taken into consider-

ation. REP. S. SMITH went back to the utilization plan

which limited the scope of the physician assistants and

stated that they were not medically qualified to perform

abortions.

REP. CAREY stated that patients were being denied

access to medical care in their area and REP. L. SMITH

said that rather than have someone in their area who is

46a

under-qualified do the procedure they would be referred

to the nearest physician.

REP. L. SMITH asked REP. S. SMITH if she was aware of

variances in other states as to the background training

and qualifications for physician assistants. She replied

that the qualifications varied from state to state, with

some requiring a four-year degree and some only two

years.

REP. L. SMITH asked if a registered nurse would be

more qualified that a physician assistant. REP. S. SMITH

explained that physician assistants were more trained in

the area of diagnosis than in actual care as nurses are.

REP. L. SMITH made the observation that the reason the

physician assistants in Vermont have a better record than

physicians of medical care regarding abortions could be

because the physician assistants provide care for the rou-

tine abortions and the physicians take care of the higher

risk situations where more complications could occur and

a greater level of expertise would be needed. REP. S.

SMITH agreed.

REP. SOFT read portions of the Vermont study in the

plan that stated that little is known about the complica-

tion rates of abortions performed by physician assistants.

REP. S. SMITH stated that not a lot could be based on

those statistics in that area.

(Tape: 3; Side: A; Approx. Counter: 882; Comments: NA.)

Closing by Sponsor:

REP. S. SMITH emphasized that HB 442 was a bill about

women’s health and safety, not an anti-abortion bill and

not an access bill.

47a

(Tape: 3; Side: B; Approx. Counter: 00; Comments: NA.)

She quoted President Clinton who stated that “abortion

should be safe, legal and rare.” She added that abortion

was legal, may never be rare, but that abortion should be

kept as safe as possible.

EXECUTIVE ACTION ON HB 442

Motion: REP. KEN WENNEMAR MOVED THAT HB 442

DO PASS.

Discussion:

REP. LOREN SOFT reiterated the importance of main-

taining the safety of the mother in the abortion pro-

cedure.

Vote: The motion carried 10-6 with REPS. SQUIRES,

CAREY, HAGENER, KOTTEL, SIMON and WEN-

NEMAR voting no.

48a

I attest that this is a true copy of

an original document held by the

Montana State Archives.

/s/ Kathryn Otto

State Archivist

MINUTES

MONTANA SENATE

54th LEGISLATURE — REGULAR SESSION

COMMITTEE ON PUBLIC HEALTH,

WELFARE & SAFETY

Call to Order: By CHAIRMAN JIM BURNETT, on

March 10, 1995, at 3:25 PM

ROLL CALL

Members Present:

Sen. James H. “Jim” Burnett, Chairman (R)

Sen. Larry L. Baer (R)

Sen. Sharon Estrada (R)

Sen. Arnie A. Mohl (R)

Sen. Mike Sprague (R)

Sen. Terry Klampe (D)

Members Excused: Sen. Steve Benedict, Vice

Chairman (R)

Sen. Dorothy Eck (D)

Sen. Eve Franklin (D)

Members Absent: None

Staff Present: Susan Fox, Legislative Council

Karolyn Simpson, Committee Secretary

Please Note: These are summary minutes. Testimony

and discussion are paraphrased and condensed.

Committee Business Summary:

Hearing: HB 442

Executive Action: HB 121

(Tape: 1; Side: 1)

49a

HEARING ON HB 442

Opening Statement by Sponsor:

REP. SUSAN SMITH, HD 84, E. Kalispell, said the abor-

tion debate began 22 years ago in the United States and

has polarized many in the communities. The emotional

level continued to escalate, the leaders of Choice are

profoundly for choice, and the leaders of Life defend life,

with the loss from the debate being the health of the ones

who have been the focal point of the debate, women. This

bill is being presented because it is a health and safety

issue. Abortion is a serious surgery from which serious

complications can arise, but it has not always been

treated as such. At present, Montana is the only state,

other than Vermont, that allows Physician’s Assistants to

perform abortions.

Abortion is called a blind, invasive procedure. She read

portions of letters from 2 physicians saying abortions are

above the level of expertise of Physician’s Assistants. She

read a few procedures listed in the Montana Board of

Examiners Physician’s Assistants Utilization Plan, Level

II procedures which are to be performed only in the

physical present of a physician.

She said an abortion is far more serious than the

procedures listed in the Level III procedures.

Proponents’ Testimony:

TIM WHALEN, representing Montana Right to Life

Association, spoke briefly from written testimony in sup-

port of HB 442. He talked about the conflict in the law for

Physician Assistants.

EXHIBIT 1 and 2.

Dr. Robert St. John, OB/GYN specialist, Butte, spoke in

support of HB 442. During his 3-year training in Califor-

nia at Kaiser Foundation Hospital, he took care of many

women who had complications from abortions. In addi-

tion to taking care of those complications, he was trained

in the abortion procedure. In his Butte practice, he sees

about 5-6 women per year who he has to admit to the

hospital due to acute complications from abortions. The

biggest problem he has seen over the years are chronic

complications, and they are becoming an increasing prob-

lem as he sees women coming back who are irreversibly

sterilized from the procedures. About a year ago he saw a

19-year old and a 21-year old women who were sterile,

and the only thing in both their medical histories was

having had an abortion.

He said it is a very difficult, complex procedure and

without expertise, there can be serious complications. He

said, as an OB/GYN specialist, he had 12 years of train-

ing learning how to do these kinds of procedures, and

surgery can’t be learned in a 1 or 2-year course. Without

the proper training, doing a major operation like abortion

can lead to complications and side effects. There isn’t

good data in the US, but European literature has docu-

mented abortion and complication information. In the

Iron Curtain Countries, there was socialized medicine

and they had few complications because of the police

state, which forced them to see the physician for followup

for a 100% recall rate, so they knew what their complica-

tion rate was. If these physicians were well trained and

had been doing these procedures for a long time, the

incidence of hemorrhage was 2%, if they were relatively

5la

poorly trained or inexperienced, there was a 15% hemor-

rhage rate. Hemorrhage is defined as serious enough to

require a blood transfusion.

He said 15% of the 1,600,000 women in the United

States having transfusions, which increases their risk for

Hepatitis B and AIDS. If only 2% or 32,000 require a

blood transfusion, that’s a small complication rate. The

big complication rate is infection and 25% (400,000) of

women who have an abortion will show evidence, some-

time in her life, that she had an infection at the time of

the abortion. He said there are many other complications,

which he talked about.

He then listed and talked about some of the Level III

procedures that Physician’s Assistants can do. He said

the abortion procedure is dangerous, risky and has a high

incidence of complications.

Laurie Koutnik, Executive Direct=r, Christian Coalition,

spoke in support of HB 442. She said it is common sense

legislation, and it is wise to promote health for the citi-

zens of Montana. She read a letter from a young woman,

from Kalispell, who had an abortion. EXHIBIT 3. She said

abortion should only be in the hands of responsible,

certified doctors.

Sharon Hoff, representing the Montana Catholic Con-

ference, read her written testimony in support of HB 442.

EXHIBIT 4.

Arlette Randash, Eagle Forum, read her written testi-

mony in support of HB 442. EXHIBIT 5.

Charles Lorentzen read his written testimony in support

of HB 442. EXHIBIT 6 A-D.

52a

Tammy Skogan, Ronan, spoke in support of HB 442. She

said abortion is a major surgical procedure that men

don’t have to be worried about, it seems like have women

have lesser quality for a major medical procedures, and

no one in the Committee room would accept the lower

quality of medical care for a major medical procedure.

She urged the Committee to support HB 442, for quality,

not equality.

Opponents’ Testimony:

Jennifer Krueger, President, Montana Academy of Phy-

sician Assistants, spoke from her testimony in opposition

to HB 442. EXHIBIT 7 and 8.

Simon Heller, Attorney, Center for Reproductive Law &

Policy, New York, said he currently represents abortion

providers in Montana. He spoke from written testimony

in opposition HB 442. EXHIBIT 9. He said he wanted to

address the legal issues raised by HB 442 and if HB 442

passes, it will be challenged in court.

Mindy Opper, Physician Assistant, Missoula, spoke in

opposition to HB 442. She is concerned this bill presents

another barrier to access to women seeking abortions in

Montana, and concerned about questions raised about the

quality of care offered by Physician Assistants. She talked

about a study, done by the Vermont Department of

Health in 1986, comparing complication rates from first

trimester abortions performed by M.D’s and P.A’s. She

said this study and others confirm the quality of care

offered by Physician Assistants, in all realms of health

care they provide, is equal to the care provided by physi-

cians. She said the P.A.’s in Montana, as in Vermont, work

53a

under the supervision of a physician and Physician Assis-

tants’ scope of practice is limited. She talked about the

education, continuing education, and Board requirements

for Physician Assistants. EXHIBIT 10.

(Tape: 1; Side: 2)

Kity Rich, Big Fork, spoke in opposition to HB 442 and

read a letter she had written to SENATOR BAER.

EXHIBIT 11. She spoke in support of Physician Assistant

Susan Cahill in Kalispell and said this bill is against

everything in which she believes.

Kate Cholewa, Montana Women’s Lobby, read her writ-

ten testimony in opposition to HB 442, Saying it is a

bogus bill, and does not increase the safety of abortions.

She said abortion is being singled out, and this bill is

anti-choice agenda. She passed out Myths and Facts

about abortion. EXHIBIT 12 and 13.

Debbie Dominique, Kalispell, spoke in opposition to HB

442. She said obtained an abortion from P.A. Susan Cahill

in 1978 and another in 1980. She said Susan Cahill is her

primary health care provider and has been happy with

the care she has received, and thinks this bill is a personal

attack on Susan Cahill.

Sue Juhl, Big Fork, spoke in opposition to HB 442. She

said there are 2 sides to every issue and feels this bill is a

personal attack on P.A. Susan Cahill.

Tracy Mayer, Kalispell, spoke in opposition to HB 442.

She said the sponsors of this bill are disguising their

efforts to decrease and end abortion as a health and

safety issue, and there are no womens’ safety concerns

54a

with P.A.’s performing abortions. She talked about Physi-

cian Assistant State Boards and said this bill is about

politics and the politics of abortion. She said when politi-

cians are deciding who should be performing a medical

procedure, under the guise of public health and safety,

it's as though P.A.’s performing abortions represents a

higher risk to the public. She talked about Susan Cahill

being her health care provider.

Dr. Gordon Bell, Family Physician, Glasgow, said he

was on the Board of Medical Examiners for 3 '/2 years and

has been the supervising physician for 2 P.A.’s in

Glasgow. He talked about Physician Assistants’ training

and the procedures they are qualified to do. He said the

Physician Assistant training does not qualify them to do

abortions, but they can get the extra training necessary, as

has Susan Cahill, to be qualified.

Dr. James Bonnier, President, Board of Medical Exam-

iners, said the Board does not have roll [sic] in nor takes

a pro or con abortion stance, but the Board feels Physi-

cian Assistants are important health care providers in

rural areas. It is important that the Board of Medical

Examiners maintain its roll [sic] as a credentialling agent

for health care providers. Both he and the Board is con-

cerned this bill is a legislative move to isolate one group

of health care providers, isolate people within that group,

and to remove from those providers procedures and

activities they are qualified to do. He said there is a

supervising physician with every Physician Assistant and

wants the Board to be able to review the credentials of

each to health care provie +r, make judgements for the

appropriate procedures tor those providers, issue

55a

licenses, and not single out a single group or issue that

may have political, moral, or religious grounds.

Eliza Frazer, Executive Director, Montana NARAL,

spoke in opposition to HB 442. EXHIBIT 14. She referred

to Proponents’ testimony talking about Nurse Practi-

tioners providing abortions. She said they are not advo-

cating any Nurse Practitioner or Nurse to perform

abortions, and Physician’s Assistants are different and is

a different situation.

Randy Spear, Physician Assistant, Board of Medical

Examiners member, spoke in opposition to HB 442. He

talked about the procedures listed by REP. SMITH in her

opening statement, and said there is nothing in the Physi-

cian Assistant’s Utilization Plan that says a Physician

must be present for clipping toe nails

Susan Cahili, Physician Assistant, spoke in opposition

to HB 442. She said she feels this bill is personally against

her. She has worked with Dr. James Armstrong for 18

years and never has had a complaint lodged against her.

She said she has been trained to do abortions.

Questions From Committee Members and Responses:

SENATOR KLAMPE asked Jennifer Krueger to give

more information about the complications of abortions

and the procedures that Physician Assistants are autho-

rized to do.

Jennifer Krueger listed and described several procedures

Physicians Assistants are allowed to do.

SENATOR KLAMPE asked about the supervision Physi-

cians Assistants receive while working.

56a

Jennifer Krueger said she practices under the supervi-

sion of a physician, but for various procedures, the physi-

cian may not present or even in the office.

SENATOR KLAMPE asked Jennifer Krueger if she per-

formed abortions.

Jennifer Krueger said she does not perform abortions

and deferred to Susan Cahill.

Susan Cahill said every Physician Assistant writes a

Utilization Plan which must be accepted by the Board of

Medical Examiners, and her Utilization Plan says she will

never do an abortion unless Dr. Armstrong is present in

the office at the same time.

SENATOR ESTRADA said she has read HB 442 and does

not see Susan Cahill’s name mentioned anywhere in the

bill. She asked Simon Heller if he said this bill is directed

at Susan Cahill.

Simon Heller said yes, it is directed at Susan Cahill.

SENATOR ESTRADA asked if there is only one Physi-

cian Assistant in Montana doing abortions.

Simon Heller said yes.

SENATOR SPRAGUE told Susan Cahill that he has to

commend her and said he wants to be objective on this

matter. He asked, if in her years of practice, has she had

people protest at her practice.

Susan Cahill said there have been protestors at her

office.

57a

SENATOR SPRAGUE asked, as a Physician Assistant,

was it a general degree, then concentrate on a particular

field.

Susan Cahill said her field is in Family Practice with Dr.

James Armstrong, and until 5 years ago, they delivered

babies. She said doing abortions is only a part of her

practice and she was hired by Dr. Armstrong because,

when he performed abortions, there were so many that it

took away from the other part of his practice.

SENATOR SPRAGUE asked to speak with the Legal

Council for the Board of Medical Examiners.

Patricia England said she is the Legal Council [sic] for

the Board of Medical Examiners.

SENATOR SPRAGUE asked if the Legislature had given

the Board statutory rules to make decisions as to who

could perform specific procedures.

Patricia England said in section 37-20-301, subsection 3 of

the Montana Code, directs the Board to approve the

Utilization Plan of Physician Assistants. As in the case of

Susan Cahill and Dr. Armstrong, the Board tound they

were in the scope, training, and experience of practice.

SENATOR SPRAGUE asked for a copy of the Montana

Code be submitted for the Committee members. Then he

asked, legally, why this bill is here, isn’t it really a legal

question, an interpretation of the law, or is it an effort to

develop law to interpret.

Patricia England said it is a legal question and, in time,

will be addressed by the Board. She said there is a possi-

ble conflict between two laws and it will probably end up

58a

in court for a decision. She read from the Brief for Sum-

mary Judgement of a lawsuit and the Montana Code

Annotated section 50-20-1091A as defined by 37-20-4013.

She said apparently the Attorney General also construed

this statute as requiring the Board to approve a medical

procedure that the 2 participants had demonstrated com-

petency in.

SENATOR BURNETT said, as Legislators, bills are a

response to public demands, and that’s why there is

legislation, and REP. SMITH was responding to her con-

stituents.

SENATOR MOHL asked Susan Cahill, as an assistant,

you said you never performed any abortions without Dr.

Armstrong being present, and is that legal, and is that

like a nurse assisting.

Susan Cahill said she is not a nurse, but is a Physician

Assistant, has had training and does many of the same

things medical doctors do and is always under the guid-

ance of a supervising physician.

SENATOR MOHL asked if this is changed and whether a

Physician Assistant can still perform certain procedure

[sic] with the physician present.

Susan Cahill said if this law is passed, probably not.

SENATOR MOHL said, as he reads the bi!l, Susan Cahill

can, at present, perform abortions without a licensed

physician present, but if the bill passes, she could not.

Susan Cahill said she can’t practice independently. There

are guidelines in their Utilization Plan specifying what

Physician Assistants can and can’t do, either in the office

59a

on their own or under the guidance of or with a physi-

cian. They also have their own Utilization Plan that is

OK'd by the Board of Medical Examiners. She said she is

authorized to do first trimester abortions with a supervis-

ing physician present in the office.

SENATOR ESTRADA asked Susan Cahiil if when per-

forming an abortion and there were complications, could

she handle it or would she call for help.

Susan Cahill said if she has any problems, she calls Dr.

Armstrong.

SENATOR ESTRADA asked if Dr. Armstrong is always

in the oftice.

Susan Cahill said he is there all the time.

SENATOR BAER asked Simon Heller if he is a member

of the bar and which state.

Simon Heller said he is a member of the bar in New York

and the District of Columbia.

SENATOR BAER asked if he was engaged in the active

representation of Susan Cahill.

Simon Heller said he is not currently representing Susan

Cahill, but is representing other abortion providers in

Montana.

SENATOR BAER asked if he is licensed to practice law in

Montana.

Simon Heller said he is not licensed to practice law in

Montana, but is practicing, at present, under a motion

made to the State District Court, for a current case.

60a

SENATOR BAER asked under whose supervision is he

practicing.

Simon Heller said the local attorney is Bruce Measure.

SENATOR KLAMPE asked about the medical ramifica-

tions of this issue.

James Bonnier said he is appearing as the President of

the Board of Medical Examiners and would like to limit

his testimony to the process. He said he does not do

primary care, abortions, or obstetrics.

SENATOR KLAMPE asked to speak to another physi-

cian. He asked Dr. Gordon Bell about the Proponents

references to complications of abortion and about the

risks of a first trimester abortions.

Dr. Bell said he is a primary care physician, has some

familiarity with these procedures but does not perform

abortions. He does a wide range of obstetrics and is

familiar with the literature dealing with updated abortion

issues, and thinks the numbers quoted are outlandish.

SENATOR KLAMPE asked Dr. St.John about the risk of

convulsions and death from injecting into a vein or artery

in a first trimester abortion.

Dr. St.John said injection of a local anesthetic into a vein

can lead to convulsions. It is a heart stopper. In 1966,

there were 289 deaths reported to the CDC and for the

last 6-8 years in the United States, there have been 10-20

deaths reported from all causes.

SENATOR KELAMPE asked about data.

eee

6la

Dr. St. John said there are about 10-20 deaths per year

from the complications of abortion, and adding preg-

nancy deaths, the figure is higher.

SENATOR KLAMPE said he wants to see some data on

risks from complications.

Debra Frandsen, Executive Director, Planned Parent-

hood, Missoula, said in the past 20 years in Montana,

since abortion has been legal in Montana, there have been

no reported deaths from abortion. The average rate for

complications is 1-2%. There have been 400 abortions at

the Planned Parenthood clinic in Missoula, and have had

no clients who needed a transfusion, and one woman was

hospitalized for another cause, and have had no hospital-

izations related to abortions. She said there are statistics

to show abortion is a safe procedure, especially when

performed in the first trimester of pregnancy, and is 10-14

times safer than delivering a baby.

SENATOR MOHL asked if the Board of Medical Exam-

iners had been contacted by the podiatric group about

extending their scope of practice to the ankle.

Dr. Bell said the Board of Medical Examiners heard some

brief discussion on that subject, and had been informed

there was Legisiation introduced.

SENATOR MOHL asked if the Board of Medical Exam-

iners made the decision that a physician has to be present

when an abortion is performed, and why the Board

doesn’t make a decision about the podiatrists scope of

practice.

Dr. Bell said the issue has not been brought before the

Board. He said the Board deals with issues of a statutory

62a

nature, and have been fulfilling the requirement of the

law, given them by the Legislature, regarding Physician

Assistants. They do not have statutes regarding whether

podiatrists can approach and have not been asked for an

opinion on that. They do have statutes on file dealing

with Physician Assistants.

SENATOR SPRAGUE asked how many abortionists are

in the State of Montana.

Dr. St. John said he didn’t know.

Debra Frandsen said, there are about 8-10, but there are

no figures from private clinics and practices, which pro-

vide the majority of the abortions in the State.

SENATOR SPRAGUE asked how many men and how

many women were doing abortions.

Debra Frandsen said there are about 3-4 women and 6-7

men.

SENATOR BAER asked REP. SMITH, when she agreed

to sponsor this bill, was there any conception on her part

that it address any particular person or place.

REP. SMITH said the bill was addressing an access issue,

and not anyone in particular.

SENATOR SPRAGUE asked if this bill was brought to

her by someone or was it of her own creation.

REP. SMITH said REP. DAN McGEE was going to carry

this bill, but she decided to do so. She said this bill is not

person specific, but is a women’s health issue.

SENATOR SPRAGUE asked how this bill came to be and

how it developed.

63a

REP. SMITH said Section 50-21-109 is the existing lan-

guage. She read the version before it was changed, stating

abortions can be performed in Montana only by a

licensed physician.

SENATOR SPRAGUE said the Physician Assistant,

Susan Cahill, is performing abortions and it’s legal. He

asked if there was another statute that makes it legal and

illegal simultaneously.

REP. SMITH said it may fall under the category of rule-

making authority.

SENATOR KLAMPE asked Patricia England to respond

to the statute issue that abortion is an illegal act unless

performed by a physician.

Patricia England said she is not an expert in this area of

the law. She said there is tension because one law that

says you can and another says you can’t. As the Attorney

General’s statement in his brief and federal law states,

she thinks the statement of restriction to physicians only

cannot prevail.

SENATOR KLAMPE asked about the statute.

Dr. James Bonnier said he did not know, and is totally

dependent on their counsel.

Simon Heller said in 1993, Chief Judge Hatfield of the

United States District Court, signed an order stating that

the “physician only” statute took out the reference to

“physician’s assistants” who were performing abortions

under the supervision of a physician and under the utili-

zation plan as approved by the Board, so the law saying

physicians only doesn’t mean any Physician Assistant

could start performing abortions. That law is still in

64a

effect, except as to those Physician Assistants who have

proved themselves to the Board.

SENATOR KLAMPE asked Tim Whalen for his inter-

pretation of the statute, and whether he disagreed with

Simon Heller.

Tim Whalen said he does disagree with Simon Heller.

He said it was stated that this law would be held uncon-

stitutional in both Federal and State law. The Supreme

court addressed the issue, whether the “physicians only”

laws are constitutional, and it’s felt they are constitu-

tional. As far as Montana State Constitution, the abortion

issue, under the privacy provision of the Montana State

Constitution has never been addressed in Montana. Any

statement made, with respect to how this issue would be

dealt with, in his view, is complete speculation. He said

talked about the current privacy provision in Montana

law and about opinions at the Federal level, and the

abortion right is on shifting ground.

Closing by Sponsor:

REP. SMITH referred to the Vermont study statistics

stated in previous testimony, and to Simon Heller’s state-

ment that this bill was brought to the Legislature by the

terrorists who burned the offices in Kalispell. She said

she strongly objects to that inference because she had

nothing to do about burning down a building, nor does

she want to associate with anyone who does.

(Tape: 2; Side: 1)

She said this is about womens’ health and is not an anti-

abortion bill. She said abortion is legal in Montana and all

65a

50 states. If the law is made more lenient because of

access, there could be health care providers performing

various procedures for which they are not trained. There

needs to be access to quality health care. This is a wom-

ens’ [sic] health and safety issue. She read a paragraph by

Jane Hodgson, a doctor who does abortions. She saia,

“When I first started doing abortions, I took my Boards in

Obstetrics and Gynecology. Therefore, | knew I was com-

petent to do abortions. When I did my first few hundred,

I realized how silly I had been in my previous view point.

At this point, having done somewhere around 12,000

procedures, I’m beginning to think I’m reasonably com-

petent. I don’t think you can train someone to do first

trimester procedures quickly.” She quoted President Clin-

ton saying abortions should be safe, legal and rare.

66a

I attest that this is a true copy of

an original document held by the

Montana State Archives.

/s/ Kathryn Otto

State Archivist

MINUTES

MONTANA SENATE

54th LEGISLATURE - REGULAR SESSION

COMMITTEE ON PUBLIC HEALTH,

WELFARE & SAFETY

Call to Order: By VICE CHAIRMAN STEVE BENEDICT,

on March 15, 1995. at 3:00 PM

ROLL CALL

Members Present:

Sen.

Sen

Sen.

Sen

James H. “Jim” Burnett, Chairman (R)

Steve Benedict, Vice Chairman (R)

Larry L. Baer (R)

Arnie A. Mohl (R)

Mike Sprague (R)

Dorothy Eck (D)

Eve Franklin (D)

Terry Klampe (D)

Members Excused: Sen. Sharon Estrada (R)

Members Absent: None

Staff Present: Susan Fox, Legislative Council

Karolyn Simpson, Committee Secretary

Please Note: These are summary minutes. Testimony and

discussion are paraphrased and condensed

rr ° T ?

67a

Committee Business Summary:

Hearing: No bills

Executive Action: HB 442, HB 504, HB 539,

HB 557, SB 385, HB 121

EXECUTIVE ACTION ON HB 442

SENATOR BENEDICT said there are no amendments to

HB 442.

Motion: SENATOR KLAMPE moved HB 442 to be

TABLED.

Discussion: SENATOR BENEDICT ruled that motion

out of order. He said there should be some discussion by

Committee members before tabling a bill.

SENATOR ECK said the Senate rules or procedures allow

a discussion on a motion to table in committees, but not

on the Floor.

SENATOR BENEDICT said the discretion if the Chair-

man applies as far as ruling a motion out of order.

SENATOR KLAMPE withdrew his Table motion.

Motion: SENATOR BAER moved HB 442 BE CON-

CURRED IN.

SENATOR KLAMPE said he has no problem with people

either supporting or not supporting abortion bills, but

this is not an abortion bill. He said the Proponents testi-

mony mainly focused on whether abortion is good or

bad, and there wasn’t much scientific data presented. He

said the bill deals with whether Physicians Assistants are

capable of performing first trimester abortions, and it was

verified in testimony the bill should be killed.

68a

SENATOR MOHL said he has been a strong advocate for

holding people to the line of what they have the educa-

tion to do. He said he does not feel Physicians Assistants

are not educated to do abortion procedures. For that

reason he is in favor of the bill.

SENATOR BAER said this is a public health and safety

bill and abortion issue is merely collateral, and not the

focus of this bill. He said the current Statutes states only a

licensed physician may perform an abortion procedure

and the administrative rules would allow the Board to

determine what procedures people are skilled and

accredited to do, so there is a conflict between the law

and the administrative rules. Whenever there is a conflict

between laws and administrative rules, law will always

preclude the administrative rules. He said that was the

situation when the Attorney General’s opinion was

requested, but rather than respond to the situation at

hand, he determined the designated physician also

included Physicians Assistants, resulting in a controversy.

He said the intent and purpose of HB 442 is to clarify this

ambiguity by making it clear that Physicians Assistants

may not perform abortions.

He related his working experience in the operating

rooms of a military hospital, saying he could not envision

an abortion type procedure being performed any place

other than a hospital surgical suite with an operating

surgical team available in case complications should

arise. He said abortion is an intrusive procedure that

should only be performed by a licensed physician with

the knowledge and ability to handle the unexpected, and

in a setting where the unexpected can be dealt with by

accomplished and qualified people. He can’t imagine this

—————— - . —

. a ol eae sit . Ait an santas A e

nh ti ly Ba eink ren eed: wR ae

69a

procedure being done in a doctor’s office by someone

with less training than a physician.

SENATOR KLAMPE disagreed with SENATOR BAER

saying, this bill didn’t address venue, where these surgi-

cal procedures will take place, so that is not an issue. He

said if the unexpected should arise, these people are

qualified to handle most of these problems, plus there is

direct supervision by a physician in the office. He said

the record shows safety has been insured with these

people’s education and skills, and they are performing

the procedure as well as physicians are.

SENATOR ECK said her concern is similar to that of

SENATOR MOHL. She said there have been a lot of bills

asking the Legislature to determine the scope of practice

for given professions, and in this case, the responsibility

has been place with the Board of Medical Examiners. She

would prefer their making the decision for the scope of

practice for Physicians Assistants.

SENATOR SPRAGUE said he thinks this bill is asking

the Committee to reach back to say what you have been

doing for several years is now improper and illegal. He

said that is not right, but if this bill makes rules, condi-

tions and credentials to be met, to apply “from this day

forward,” then that’s fine. He said the Board of Medical

Examiners needs to make this decision, and they are

abdicating their responsibility by not doing so. If the

intent of this bill is to set up new criteria to apply from

this day forward, that’s OK, but should not consider

grandfathering is not right.

70a

Motion/vote: SENATOR KLAMPE made a substitute

motion to TABLE HB 442. The motion resulted in a TIE

VOTE (by Roll Call).

Vote: The BE CONCURRED IN MOTION CARRIED

with SENATORS SPRAGUE, ECK, FRANKLIN, and

KLAMPE voting NO.

SENATOR BURNETT come in to the hearing.

SENATOR KLAMPE left his voting proxy with SENA-

TOR ECK as he left the hearing.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.