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Montana Supreme Court asked to block abortion laws

BILLINGS (KPAX) — Planned Parenthood of Montana on Thursday asked the state Supreme Court to block three new laws restricting abortion in Montana, the day before they take effect – and hours after the state asked to remove a presiding judge from the high-profile case.

Lawyers for Planned Parenthood called the state’s request late Wednesday to remove the judge “blatant gamesmanship,” designed to prevent a ruling that would temporarily stop the laws from taking effect.

Planned Parenthood said the Montana Supreme Court should issue an emergency order to block the laws, and then either rule on a lengthier injunction or send that issue back to state court in Billings to be resolved.

If the laws take effect, “they will immediately infringe on the fundamental rights of Montanans seeking abortion care and subject (Planned Parenthood) to criminal penalties for providing that constitutionally protected care,” the Thursday filing said.

The filing from Planned Parenthood and physician Joey Banks was the latest in a flurry of extraordinary legal moves within the past 18 hours, on the eve of the day – Friday – that the laws are scheduled to take effect.

The laws, passed by the Republican majority in the 2021 Legislature, ban abortions after 20 weeks of pregnancy, restrict access to abortion-inducing drugs and require physicians to ask women seeking an abortion if they want to listen to the fetal heartbeat.

Late Wednesday, the state attorney general’s office asked to disqualify state District Judge Gregory Todd of Billings from the case, alleging he’d made a remark during a hearing last week that indicated bias against the state.

Under state law, once that request is made, the judge cannot take further action on the case. Todd had said last week that he intended to rule by Thursday on Planned Parenthood’s request to block the abortion laws from taking effect, while he considered the larger questions of their constitutionality.

It was initially reported that Todd has stepped down from the case and that District Judge Rod Souza of Billings had replaced him.

But Todd said Thursday he has not stepped down from the case and that he’s asked for guidance from the state Supreme Court, which signs off on judge substitutions at the District Court level.

Planned Parenthood lawyers said Thursday that state attorneys knew a week ago what Todd had said in the Sept. 23 hearing, but waited until Wednesday to make an issue of it, in an attempt to stop any ruling from blocking the laws’ effect on Friday.

The attorney general’s office didn’t immediately respond to a message seeking comment Thursday.

Planned Parenthood’s initial lawsuit, filed Aug. 16, asked the court to strike down four laws restricting abortion or abortion coverage in Montana, as an unconstitutional violation of privacy and other individual rights.

At a hearing last week, Todd indicated he would rule by Friday on Planned Parenthood’s request to block the laws from taking effect.

Also at the hearing, Todd had a brief exchange with state Solicitor General David Dewhirst, in which Todd made an offhand comment referring to the running dispute between state GOP leaders and the state judiciary. Republicans have accused state judges of political bias against Republican-passed laws.

The request filed Wednesday to disqualify Todd from the case referenced that exchange.

“Judge Todd revealed his displeasure and disagreement with the state, the attorney general and his clients, and other executive-branch official, regarding a separate and complex political and legal dispute between Montana’s judiciary, the Legislature and the executive branch – a dispute in which Judge Todd features prominently,” the motion said. “This comment calls into question his ability to maintain an ‘open mind’ to the state’s argument in Planned Parenthood.”

Todd also has been the head of the Montana Judges Association, which has been a figure in the GOP-versus-the-judiciary dispute as well. He’s the third judge to have the case.

The lawsuit had been assigned originally to District Judge Jessica Fehr, who disqualified herself. It was then assigned to Judge Don Harris, but the state moved to substitute him, and Todd took over the case.

The lawsuit asks to strike down the laws because they violate numerous state constitutional rights, including women’s right to privacy in deciding medical procedures, the right to seek “safety, health and happiness,” and health-care providers’ rights to free speech, by compelling them to give certain advice or dispense false information.

State seeks removal of state judge on eve of big ruling in abortion lawsuit