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12.09.08 - In 1995, the Montana Legislature passed a law restricting performance of abortions to licensed physicians. The new law effectively overturned a previous state law, in effect since the early 1970s, which had been interpreted to allow physician assistants to perform abortions under the supervision of a physician.
Filing date: 7/31/1995
Plaintiff(s): 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 and on behalf of a class of performing and referring physicians.
Center Attorney(s): Janet Benshoof, Simon Heller
Co-Counsel/Cooperating Attorneys: Bruce Measure, Law Offices of Ambrose Measure; Turner Graybill, Graybill, Ostrem, Warner & Crotty; Diane Sands MT Women's Lobby; Liza Frazer NARAL
Summary: At the time of the new law, there was only one physician-assistant, Susan Cahill, performing abortions in Montana. Together with a group of licensed physicians practicing in Montana, Ms. Cahill, represented by CRR, challenged the new law in federal court (Armstrong v. Mazurek). The group argued that the new law imposed an undue burden on women’s right to choose to have an abortion, and that the imposition of such a burden—and a desire to force Ms. Cahill to cease performing abortions—was the constitutionally impermissible objective of the Montana legislature in creating the new law. Although two lower courts had prevented the law from taking effect, in 1997 the U.S. Supreme Court summarily upheld the law without oral argument or full briefing. The Supreme Court found insufficient evidence of an improper purpose behind the law, and it expressed doubt as to whether any statute could be invalidated on the grounds that it had been motivated by an impermissible purpose unless concrete evidence existed of the statute’s unconstitutional effect.
In the Fall of 1997, again with representation from CRR, Ms. Cahill and a group of Montana abortion providers challenged the law in state court (Armstrong v. State), this time arguing that the law violated the Montana State Constitution’s provisions regarding privacy, due process, and equal protection of the laws. The case provides an excellent example of CRR’s strategy of turning to state constitutions to protect reproductive rights where those constitutions may provide broader protections than the U.S. Constitution, as it is currently interpreted by the U.S. Supreme Court. In Mazurek, this CRR strategy proved a winning one. The District Court granted, and later the Montana Supreme Court affirmed, an injunction barring enforcement of the statute against plaintiffs, including Ms. Cahill. The Montana Supreme Court held that a woman’s right to choose to have an abortion, and her right to obtain an abortion from a health care provider of her choice, were protected by the state constitutional right to privacy. The Court further held that the state had failed to show a compelling interest supporting the requirement that abortions be performed only by physicians.