Montana Supreme Court strikes down abortion parental consent law

The Montana Supreme Court on Wednesday unanimously struck down Montana’s 2013 law requiring minors to get consent from a parent to obtain an abortion as unconstitutional, saying it violates their right to privacy and that the state had shown no compelling interest existed for imposing the extra requirements.

The court’s opinion, written by Justice Laurie McKinnon, upholds a Lewis and Clark County District Court’s decision from February 2023, which also found that the law, which has been enjoined for 11 years, violated the Montana Constitution and the Supreme Court’s prior holdings in Armstrong vs. State of Montana and Weems vs. State of Montana.

In the Armstrong decision, the court found that a person’s right to privacy in the constitution includes the right to procreative autonomy. The Weems decision expanded the scope of providers that were allowed to perform abortions in Montana.

McKinnon wrote in the opinion on the Consent Act released Wednesday that the legislature, in passing the act, created a classification for minors seeking abortions separate from pregnant minors who are not seeking abortions, which she wrote “violates the fundamental right of a minor to control their body and destiny … without adequate justification from the State, and cannot be sustained against Plaintiffs’ privacy and equal protection challenges.”

“A minor’s right to dignity, autonomy, and the right to choose are embedded in the liberties found in the Montana Constitution,” McKinnon wrote. “Because a minor’s right to control her reproductive decisions is among the most fundamental of the rights she possesses, and because the State has failed to demonstrate a real and significant relationship between the statutory classification and the ends asserted, we hold that the Consent Act violates the Constitution of the State of Montana.”

Martha Fuller, the chief executive and president of Planned Parenthood of Montana, the lead plaintiff in the case against the state and Attorney General Austin Kndusen, said the court’s long-awaited decision affirms that minors in Montana have the same right to privacy as adults.

Gov. Greg Gianforte claps before signing five abortion laws on May 3, 2023. (Photo by Nicole Girten/Daily Montanan)

“This decision affirms the right to privacy and we are pleased that the Court upheld the fundamental rights of Montanans today,” Fuller said in a statement. “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.”

A spokesperson for Knudsen, whose office appealed the case, did not immediately respond to a request for comment. In a statement, Gov. Greg Gianforte criticized the court’s decision.

“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,” Gianforte said in a statement. “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.”

Both Republicans have pushed for, and defended, abortion restrictions the governor has signed into law during their time in office and have often seen those laws struck down by Montana courts as unconstitutional.

Long road to decision

Like the lower court decision, the Supreme Court also did not take up the Parental Notice of Abortion Act that voters passed in 2012 and is still being litigated, though the Consent Act was passed by lawmakers to repeal the Notice Act before it was enjoined with the consent of then-Attorney General Tim Fox.

After the injunction was granted, a district court judge said that the state could not defend either the Notice or Consent Acts because it had not appealed a decision in 1999, though that decision was appealed and overturned by the Supreme Court. In 2022, Knudsen withdrew the consent from the injunction, leading to the 2023 district court decision and the litigation at the Supreme Court.

District Court Judge Christopher Abbott in 2023 found the Consent Act infringed on Montanans’ right to privacy and that the act was not narrowly tailored to achieve the state’s purported interests in protecting minors against sexual offenses, monitoring mental health, being sure minors were making good decisions and promoting parental rights.

But he found the Notice Act’s provisions were “starkly different and much less onerous,” and declined to make a decision on that act. The state appealed his decision on the Consent Act, and the Supreme Court heard oral arguments from the two sides this past March.

The Consent Act put numerous additional requirements on minors and providers surrounding abortions and getting consent from a parent or legal guardian for a minor, and included penalties for providers who did not follow the rules, including fines, jail and prison time. It contained a provision for a minor to petition a court for counsel to represent them if they show parents were abusive or it was in the minor’s best interests.

Planned Parenthood argued that the law was not narrowly tailored to meet the state’s interests because it created two classes of minors – ones who seek to have an abortion and those who want to carry their pregnancies to term.

Supreme Court finds Consent Act violates constitutional rights

The Supreme Court agreed, writing that the act infringes on a minor’s right to privacy “because it conditions a minor’s obtaining an abortion on parental consent or obtaining a judicial waiver, something a minor choosing to carry her pregnancy to term would not have to do.”

McKinnon wrote that the state Constitution gives minors the full rights of adults in Montana, that the Armstrong and Weems decisions had already established abortion is a safe medical procedure and not a bona fide health risk, and that the state had hardly mentioned either case as it tried to make its claims the act was protecting minors.

“All the Consent Act does is permit the parent to refuse consent to a pregnancy that has already occurred,” McKinnon wrote in the opinion. “…The Consent Act’s imposition of onerous and burdensome requirements designed to prevent evasion of the parental consent requirement by requiring notarization, government identification, proof of parentage, and a physician affidavit do not meaningfully assist in the prevention of sexual victimization of minors nor do they prevent the evasion of parental notice requirements.”

McKinnon further wrote that the state’s position in arguing the case is “illogical”: “Minors who choose to carry their pregnancies are not at risk of making an immature decision, while those choosing abortion must be protected against their immaturity.”

McKinnon wrote that the act presumes a minor is too immature to make their own decision on an abortion but not too immature to become a mother who is fully responsible for a child’s life.

People opposing Senate Bill 99 and anti-abortion bills at the Montana Legislature rallied inside the Capitol on April 7, 2023. (Photo by Blair Miller, Daily Montanan)

And she added that parents who do not make decisions in their children’s best interest could control the child under the Consent Act, goes beyond family involvement and guidance and could potentially put the family in conflict with one another if the parent and child disagreed about the decision to get an abortion.

“Any parental right that exists within this framework is a right to parent free from state interference, not a right to enlist the state’s powers to gain greater control over a child or to make it more difficult for a minor to exercise their fundamental rights,” McKinnon wrote.

The opinion also says that requiring a judicial waiver could further delay a minor’s decision over an abortion, which could create further risks in the pregnancy and induce further costs and time that especially marginalized communities might not be able to handle. McKinnon wrote the choice to carry a pregnancy to term is “the most intimate and personal decision” someone could make.

McKinnon was joined in the opinion by Justices Jim Shea, Ingrid Gustafson, Dirk Sandefur, Beth Baker, and District Court Judge Elizabeth Best, who was sitting in for Chief Justice Mike McGrath because he recused himself from the case.

Justice Jim Rice concurred with the other justices in a separate opinion in which he agreed with the conclusions, but voiced concerns about how long it took for the case to be decided by Montana courts and said he felt pregnant minors seeking an abortion should be compared to pregnant adults seeking one, and not to pregnant minors who are not seeking an abortion.

Wednesday’s decision is the latest victory in Montana courts for people and groups seeking to uphold abortion access under the constitutional right to privacy and Armstrong decision.

Montana voters are also likely to vote on a constitutional amendment this November, CI-128, that seeks to put those protections in the state Constitution for good. Montana’s secretary of state has an Aug. 22 deadline to certify ballot issues qualified for November, and the group behind the measure has gathered the necessary number of signatures, it has said.

McKinnon wrote in the opinion that the justices were not there to decide the ethical questions swirling around abortion, simply whether the Consent Act violated Montanans’ constitutional rights.

“We emphasize that our decision is not based on, nor do we presume to answer, the profound questions about the moral, medical, and societal implications of abortion,” she wrote. “At the end of the day, those questions are left to the woman who must decide for herself.”

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