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Judge blocks new abortion laws from taking effect for 10 days

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A Billings judge late Thursday halted the implementation of three new abortion laws set to take effect at midnight after a flurry of last-minute legal filings.

Yellowstone County District Court Judge Michael Moses granted Planned Parenthood of Montana’s request for a temporary restraining order after being assigned the case earlier Thursday afternoon. The order is in effect for 10 days or until Moses decides on a preliminary injunction, whichever comes first.

The laws being challenged would have banned abortions after 20 weeks gestational age; required a woman to be informed of the option to view an ultrasound before an abortion; and required informed consent before a drug-induced abortion and blocked providing the medication through the mail.

There's a fourth law included in the lawsuit filed in August, to prohibit health insurance plans sold in the federal exchange in Montana from covering abortion care, but it's not part of the temporary restrain order request.

The order from Moses means the laws will be on hold for at least 10 days or until he decides if he'll grant a preliminary injunction while the legal challenge seeking to overturn them plays out.

In his order, Moses cited the tight timeline, saying he was assigned the case at 1:11 p.m. Thursday, less than six hours before his order, and the request for the restraining order came at 3:11 p.m.

"This is a case of extreme constitutional importance," Moses wrote, adding he did not have time to adequately review the record to decide on a preliminary injunction.

Instead, he wrote, a temporary restraining order would maintain the status quo while he reviewed the filings.

"The laws at issue may inflict constitutional injuries to the people of the state of Montana," Moses wrote. " ... Any constitutional injury would be irreparable."

Moses noted the state "vehemently" objected to the idea of a temporary restraining order in an email sent to his judicial assistant at 3:30 p.m.

In a statement Thursday, Martha Stahl, the president and CEO of Planned Parenthood of Montana said she was happy to see the order.

“This is a critically important step in our fight for Montanans and their ability to continue accessing safe, legal abortion without interference from politicians, as guaranteed by the right to privacy under the Montana Constitution," Stahl said.

A spokesperson from the Attorney General's office criticizing the filing for the temporary restraining order Thursday.

"After waiting months to file their lawsuit and failing at the state Supreme Court, the abortion industry is now desperately trying to overturn Montana law at the eleventh hour and deprive pregnant women and unborn children of these commonsense health protections," spokesperson Emilee Cantrell said.

Moses’ order came after a day and a half of jostling that started when the state, represented by Solicitor General David Dewhirst, filed a motion late Wednesday in Yellowstone County District Court seeking to remove Judge Gregory Todd from the case.

Dewhirst argued Todd had shown bias in comments he made during a hearing last week. At the end of that hearing, Todd said he’d issue an order on whether he’d grant the injunction before Oct. 1, the date the laws would have taken effect.

Yellowstone County District Court erroneously filed documents removing Todd from the case late Wednesday, but only the state Supreme Court can make decisions on removing judges in cases where bias is alleged.

There’s another part of state law that allows each party in a case one judicial substitution without having to cite a reason; that can be done in a district court but the state had already used their power to swap a judge in this case through that avenue.

After the district court removed the filings pulling Todd off the case from the official record, the state Thursday morning made its appeal to substitute the judge to the Supreme Court. Also Thursday morning, Planned Parenthood asked the Supreme Court directly to block the abortion laws from taking effect, citing a lack of a judge in Billings on the case. Todd had to stop all work on the case once Dewhirst’s first motion to remove him was filed.

Once Todd voluntarily stepped down from the case around 1 p.m. Thursday and Moses was appointed, the Supreme Court both rejected Planned Parenthood’s request for it to issue an injunction, saying that it was now Moses’ decision, and declared the state’s filing to remove Todd as moot.

When Planned Parenthood argued for Moses to halt the laws in a file later Thursday, lawyer Raph Graybill wrote they would “immediately infringe on the fundamental rights of Montanans seeking abortion care and subject plaintiffs to substantial criminal penalties for providing that constitutionally protected care."

Dewhirst's motion to disqualify Todd cites comments the judge made during a hearing Sept. 23. Dewhirst's request referenced disqualification when a judge "has a personal bias or prejudice concerning a party or a party's lawyer."

"Judge Todd revealed his displeasure and disagreement with the state, the Attorney General and his clients, and other executive branch officials 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," Dewhirst wrote.

During the Sept. 23 hearing, comments from Todd hit on the ongoing dispute between the judiciary branch and the Legislature.

After Todd said lawmakers were legislating additional medical standards, a statement Dewhirst agreed was accurate, Todd added "Like they've done in the judiciary as well. But that's a different topic, right?"

Republican lawmakers have been pursuing the judiciary since the start of the legislative session this January, eventually forming a Select Committee on Judicial Transparency and Accountability. That came after lawmakers unearthed emails showing judges weighing in on legislation that would affect the judiciary, a practice the chief justice of the state Supreme Court has defended.

As president of the Montana Judges Association, Todd had asked the state Supreme Court administrator to poll fellow judges by email on a bill changing how judicial vacancies are filled and testified against several bills this session that proposed to change the judiciary.

After Todd followed up in Thursday's hearing with a comment that issues of the judiciary were not part of the discussion, Dewhirst replied "I would hope not."

In Wednesday's filing, Dewhirst argued "This comment calls into question his ability to maintain an 'open mind' to the state’s arguments in Planned Parenthood."

The last-minute filings drew accusations from both the state and Planned Parenthood of Montana about using deadlines to manipulate the case.

The state had initially claimed in a hearing last week Planned Parenthood of Montana waited to file its lawsuit until mid-August to create a timing emergency, with the new abortion laws set to take effect Oct. 1. In its own filing Thursday morning, Planned Parenthood argued the state waited until less than 32 hours before the laws were set to take effect to seek to remove the judge.

The state countered that was as soon as it could file because it was waiting on a transcript of the courtroom exchange it said showed Todd's "bias." The state did not get a transcript of last week's hearing until Sept. 28 after 5 p.m., and it filed its motion within 24 hours, it argued.

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