Weems v. State by and through Fox, 440 P.3d 4

Background

Plaintiffs are two Advanced Practice Registered Nurses (a Certified Nurse Midwife and a Certified Nurse Practitioner) who allege they could competently provide early‑term medication and aspiration abortions but are prevented from doing so by Mont. Code § 50‑20‑109(1)(a), which restricts pre‑viability abortions to physicians and physician assistants‑certified.
Plaintiffs sought a preliminary injunction (no evidentiary hearing; affidavits submitted) and the District Court granted it, enjoining enforcement of the statute pending litigation. The State appealed on standing, ripeness, irreparable harm, and preservation‑of‑status‑quo grounds.
Plaintiffs offered affidavits and evidence that APRNs perform comparable gynecologic procedures, that outcomes and safety for early abortion are similar across provider types, and that Montana has limited abortion access exacerbated by the restriction.
The State submitted professional scope‑of‑practice materials that do not expressly list abortion as within APRN scope and emphasized that the Board of Nursing has authority to define APRN competencies and scope.
The court relied on Armstrong v. State (1999) holding that provider plaintiffs can assert patients’ privacy rights when regulation of providers impacts women’s access to pre‑viability abortion; it concluded Plaintiffs had standing, presented a prima facie constitutional claim, and showed threatened irreparable harm sufficient to justify a preliminary injunction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing to challenge § 50‑20‑109(1)(a)	Plaintiffs say statute concretely injures them by barring competency determination/licensure to provide abortions	State says Plaintiffs lack standing because abortion is outside their current scope and any injury is hypothetical	Court: Plaintiffs have standing under Armstrong; statute plausibly bars their ability to obtain competency/licensure so injury is concrete
Ripeness for preliminary injunction	Plaintiffs: enforcement now prevents training and immediate provision (esp. medication abortion) so claim is ripe	State: claim is unripe because Board of Nursing must first authorize APRN practice and Plaintiffs lack current authorization/training	Court: Claim is ripe for preliminary relief; prima facie evidence statute creates a barrier to training and provision
Irreparable harm standard for injunction	Plaintiffs: constitutional privacy infringement and lost training/opportunities cause irreparable harm and diminished patient access	State: no irreparable harm because Plaintiffs aren’t yet trained/authorized and injunction reverses status quo	Court: constitutional privacy injury supports irreparable harm; evidence of inability to train/provide medication abortion was sufficient for preliminary relief
Preservation of status quo / proper scope of preliminary relief	Plaintiffs: injunction preserves women’s access and prevents enforcement while merits resolved	State: injunction improperly reverses longstanding statutory status quo and intrudes on Board of Nursing competence	Court: injunction valid to preserve rights recognized in Armstrong; District Court did not manifestly abuse discretion

Key Cases Cited

Armstrong v. State, 296 Mont. 361, 989 P.2d 364 (1999) (provider plaintiffs may assert women’s constitutional privacy right to obtain pre‑viability abortions from competent providers)
Reichert v. State, 365 Mont. 92, 278 P.3d 455 (2012) (standing, ripeness, and justiciability principles; ripeness as time‑dimension of standing)
Davis v. Westphal, 389 Mont. 251, 405 P.3d 73 (2017) (standard of review for preliminary injunctions: manifest abuse of discretion)
Schoof v. Nesbit, 373 Mont. 226, 316 P.3d 831 (2014) (standing may rest on threatened injury to a civil right)
Gryczan v. State, 283 Mont. 433, 942 P.2d 112 (1997) (standing where plaintiffs were precisely the individuals the statute targeted)
City of Billings v. County Water Dist. of Billings Heights, 281 Mont. 219, 935 P.2d 246 (1997) (prima facie showing of constitutional violation suffices for preliminary injunction)
Wiser v. State, 331 Mont. 28, 129 P.3d 133 (2006) (privacy right protects obtaining lawful medical procedure from a competent, licensed provider)
Knudson v. McDunn, 271 Mont. 61, 894 P.2d 295 (1995) (preliminary injunctions preserve rights/status quo by maintaining positions until trial)
Mont. Cannabis Indus. Ass'n v. State, 366 Mont. 224, 286 P.3d 1161 (2012) (constitutional infringement can justify preliminary injunctive relief)