As states seek to limit abortions, Montana wants to redefine what is medically necessary

Reviewed by Emily Henderson, B.Sc.Jan 24 2023

Montana's conservative leaders, stymied by the courts from passing laws that impose significant statewide abortion restrictions, seek to tighten the state's Medicaid rules to make it more difficult for low-income women to receive abortions.

The Montana Department of Public Health and Human Services is proposing to define when an abortion is medically necessary, limit who can perform such services, and require preauthorization for most cases.

The push to change the regulations is borne of a belief by Republican Gov. Greg Gianforte's administration that health providers are using existing rules that allow Medicaid reimbursements to cover abortions that aren't medically necessary.

"Taxpayers shouldn’t foot the bill for elective abortions," said Gianforte spokesperson Brooke Stroyke.

Medical professionals have said the term “elective abortions” can misrepresent the complex reasons someone may seek an abortion and constrain health providers from making their best clinical judgment. Laurie Sobel, associate director of Women’s Health Policy at KFF, said that appears to be the aim of the Montana proposal's focus on defining medically necessary abortions.

"It looks like Montana's trying to curtail abortion access under Medicaid and take the conversation of 'medically necessary' away from a physician and a patient," Sobel said.

Democratic lawmakers and many health providers have said existing state rules ensure providers consider and document why an abortion is needed to protect a patient.

Democratic state Rep. Ed Stafman, who recently chaired the Children, Families, Health, and Human Services Interim Committee, said the proposed changes are unnecessary because the state already complies with federal Medicaid rules on abortion.

"It’s clear that this is part of the anti-abortion agenda,” Stafman said.

States are barred from using federal funds to pay for abortions except in cases of rape or incest, or when a woman's life is at risk. However, states have the option of using their own money to allow reimbursements under the joint state-federal Medicaid program in other circumstances.

Montana is one of 16 states that allow the use of state Medicaid funds for abortions deemed medically necessary. A study published in 2017 in the journal Obstetrics & Gynecology found that states with Medicaid coverage of medically necessary abortions had a reduced risk of severe maternal morbidity for that population, 16% on average, compared with states without that coverage.

Montana's proposed changes are more restrictive than the rules in many of the other states that allow medically necessary Medicaid abortions. At least nine states that use state funds to pay for Medicaid abortions don't require health providers to report the circumstances for an abortion, according to a 2019 U.S. Government Accountability Office report on state compliance with abortion coverage rules. For example, California's Medi-Cal program does not require any medical justification for abortions, and requires preauthorization only when the patient needs to be hospitalized.

Most of the states that permit medically necessary Medicaid abortions, including Montana, are under court orders to fund the procedure as they would other general health services for low-income people.

Montana's coverage is tethered to a 1995 court case that determined the state's Medicaid program was established to provide "necessary medical services" and the state can't exclude specific services. The state's existing eligibility rules governing when a Medicaid-funded service is medically necessary include when a pregnancy would cause suffering, pain, or a physical deformity; result in illness or infirmity; or threaten to cause or aggravate a disability.

Under the health department's new proposal, abortions would be determined to be medically necessary only when a physician — not another type of provider — certifies a patient suffers from an illness, condition, or injury that threatens their life or has a physical or psychological condition that would be "significantly aggravated" by pregnancy.

Elsewhere, courts have rejected some states' attempts to create a definition for medically necessary abortions apart from existing Medicaid standards as constitutional violations of equal protection. The Alaska Supreme Court struck down a 2013 state law changing the definition of a medically necessary abortion because it treated Medicaid beneficiaries who wanted an abortion differently than those seeking pregnancy-related procedures like a cesarean section. And New Mexico's high court said in 1999 that a state rule limiting Medicaid-funded abortions applied different standards of medical necessity to men and women.

Montana opponents of the proposed changes have threatened to sue if the regulations are adopted.

The state's Medicaid program covers more than 153,900 women. From 2011 through 2021, the program paid for 5,614 abortion procedures, which typically represents nearly a third of all abortions in the state, according to state data.

Currently in Montana, doctors, physician assistants, and advanced nurse practitioners are allowed to perform abortions. At least one Montana clinic that provides abortions to Medicaid beneficiaries is run by a nurse practitioner, All Families Healthcare's Helen Weems, who is suing the state for trying to block nurses from performing abortions.

Medical providers make the decision of whether an abortion is medically necessary and submit a form afterward to the state health department.

The proposed change would require providers to get state approval before performing an abortion, except in emergencies, and submit supporting documents to justify the medical necessity. That preauthorization process would entail providing state officials details of patients' medical history, such as how many pregnancies a person has had, the date of their last menstrual cycle, whether they smoke, the results of any pregnancy tests, and whether they have ever had behavioral health issues or substance use disorders.

Martha Fuller, president and CEO of Planned Parenthood of Montana, said providers already collect that information but don't send it to the state. If they are required to do so, she said, that will have a chilling effect that may keep people from seeking help or lead them to pay for it out-of-pocket, if they can.

"Patients could feel like, ‘Oh, and everything that I tell you, it’s going to be now shared with my insurer for the purpose of them making a decision about whether or not I can have an abortion?'" Fuller said.

In Montana, a patient seeking an abortion via medication typically gets that through nurse practitioners or physician assistants instead of going through one of the few physicians who provide that care through Medicaid, Fuller said. She said Medicaid patients would see longer wait times if the new rules are put in place as they wait to see a physician. And waiting for prior authorization would add to the time in limbo.

Telehealth helps provide access amid scattered resources across the big, rural state, but Montana's proposed changes would require a physical examination.

"Patients might have to make a more invasive procedure. They may have to travel. They have to take more time off from work," Fuller said. "There will be patients who will decide not to seek abortion care because they cannot afford it."

Of the 1,418 abortions covered by Montana Medicaid in 2020 and 2021, state records show, one was performed because a person's life was in danger. The rest were performed under the broader medically necessary justification, with paperwork about those cases including a brief explanation for why the procedure was needed.

According to the state's proposed rules, the lack of supporting documentation for the procedures leads "the department to reasonably believe that the Medicaid program is paying for abortions that are not actually medically necessary."

In 2021, state lawmakers passed and Gianforte signed three laws restricting abortions that a court temporarily blocked. The Montana Supreme Court upheld the injunction, arguing that the state constitution's right-to-privacy provision extends to abortion.

Gianforte and the state attorney general have called on the Montana Supreme Court to strike down the two-decade-old ruling that tied abortion to the right to privacy. Republican lawmakers also have filed a slew of abortion-related bills in the legislative session, including one proposal to exclude abortion from the state's right-to-privacy protections.