HELENA — After a legal challenge that stretched out for over a decade, the Montana Supreme Court has invalidated a state law that would have required parental consent before a minor could get an abortion.
All seven justices ruled Wednesday that the law infringed on the right of privacy under the Montana Constitution, and that the state had not shown enough evidence to justify it as enhancing protections for minors.
“We also acknowledge that the State has a substantial interest in preserving the family, protecting minors, and protecting the rights of parents to raise their children,” wrote Justice Laurie McKinnon. “However, when weighed against the right of a minor to make the most intimate and personal decision of whether to carry a child to term, the interests expressed by the State must be furthered by and substantially related to the legislation itself, and the legislation must be narrowly tailored to meet only those legitimate legislative goals.”
The court heard oral arguments on this case in March, almost 11 years after the challenge was initially filed.
In 2013, the Montana Legislature passed House Bill 391, which prohibited anyone under 18 from getting an abortion without notarized written consent from their parent or legal guardian. Exceptions would be allowed in a medical emergency or if a minor successfully petitioned a court to waive the requirement.
The bill became law without the signature of then-Gov. Steve Bullock, but it never went into effect, as Planned Parenthood of Montana sued over it and the office of then-Attorney General Tim Fox accepted a preliminary injunction. Over the following years, the case passed through several district court judges, eventually ending up with District Judge Chris Abbott of Helena. Last year, he ruled the law was invalid because it infringed on the right to privacy.
Attorney General Austin Knudsen’s office appealed the decision, saying Abbott had used the wrong standard when reviewing the law. State attorneys argued the Montana Constitution grants more authority to make laws that affect the rights of people under the age of 18, so the Armstrong decision – the 1999 Montana Supreme Court ruling that said abortion was covered under the state constitution’s right of privacy – didn’t apply in full here.
Attorneys for Planned Parenthood argued the state couldn’t point to a legitimate health or safety risk to justify the law, and that they weren’t applying their interests neutrally because the consent requirement would only apply to abortion, not to other procedures.
In her majority opinion, McKinnon echoed those points. She noted that the court has concluded in cases as recently as last year that abortion is safe and presents minimal health risks. She said the state hadn’t demonstrated requiring parental consent would protect minors from sexual abuse, physical and mental health impacts or immature decision-making.
McKinnon also said applying the consent requirement to minors wanting to get an abortion but not those wanting to continue a pregnancy discriminates against those choosing abortion.
McKinnon’s opinion was joined by Justices Jim Shea, Ingrid Gustafson, Dirk Sandefur and Beth Baker, as well as District Judge Elizabeth Best, who heard the case in place of Chief Justice Mike McGrath after he recused himself.
Justice Jim Rice wrote a concurring opinion. He agreed the consent requirement infringed on the right to privacy and should be found unconstitutional on that basis. He disagreed with McKinnon’s finding that there was an equal protection issue based on whether a minor chooses to get an abortion or continue their pregnancy, but said there was different treatment of those seeking an abortion based on whether or not they were under 18, and that the law still wasn’t narrowly tailored enough to satisfy the state’s interests in that case.
Rice also criticized what he called “the judiciary’s failure to address this case in a timely fashion.”
“While perhaps no single individual or court bears all the blame, the public’s confidence in the judiciary rests on the expectation that the courts will faithfully execute judicial duties,” he wrote. “The public deserves better than what occurred in this case, and courts must do better.”
Planned Parenthood of Montana praised the court's decision in a statement Wednesday.
“This decision affirms the right to privacy and we are pleased that the Court upheld the fundamental rights of Montanans today,” said president and CEO Martha Fuller. “Montanans deserve the ability to make private medical decisions and have the ability to access abortion care if that is what is best for patients and families.”
Gov. Greg Gianforte released a statement, saying the decision was eroding parents' rights to oversee their children's medical care.
“As a strong defender of parental rights, I’m deeply concerned and disappointed by today’s ruling from the Montana Supreme Court, which states parents do not have a fundamental right to oversee the medical care of their young daughters,” he said. “In its ruling, the Court has wielded its gavel like a hammer against one of the fundamental rights in our history: the right of parents to consent to the medical care of their minor children.”
Chase Scheuer, press secretary for Knudsen's office, called the court “radical and out-of-touch.”
“It is ludicrous to believe that a child’s parents should not be informed before a major medical procedure and Montanans agree,” he said. “In 2012, 70 percent of Montanans supported a parental notice act, which was also challenged by Planned Parenthood and is going to trial. The people’s elected representatives in the Legislature also passed the parental consent act to protect parents’ right to have a say in their child’s well-being. After 11 years of litigation, the Supreme Court took that right away from parents across the state. What will the court decide next, that parents don’t need to consent to their child’s underage marriage?”
Scheuer said the attorney general's office would be reviewing possible next steps.
The court's full opinions are below:
Editor's Note: This story has been updated to include statements from Martha Fuller, Gov. Greg Gianforte and Attorney General Austin Knudsen's office.
