The Montana Supreme Court on Wednesday unanimously upheld a lower court’s decision that a medical provider performing an abortion on a minor is not legally required to receive consent from parents.
Abortion is legal in Montana under judicial precedent from the 1999 state Supreme Court order known as Armstrong. The case asserted the state constitution’s right to privacy protects abortion access to the point of fetal viability.
Wednesday’s opinion, authored by Justice Laurie McKinnon, settles one element of a decade-long legal battle over how that right to privacy interacts with the rights of parents in a child’s abortion care.
“We conclude that minors, like adults, have a fundamental right to privacy, which includes procreative autonomy and making medical decisions affecting his or her bodily integrity and health in partnership with a chosen health care provider free from governmental interest,” she wrote in the opinion.
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This case goes back to 2013, when the Legislature passed House Bill 391, dubbed the Parental Consent for Abortion Act. It requires health care providers to receive notarized and written consent from a parent or legal guardian before performing an abortion on anyone under 18 years old. Exceptions for medical emergencies or in cases where a minor successfully petitioned a court for a waiver were included.
Under the law, Montana’s health department would be responsible for creating a consent form that details the procedures that may be performed and the risks associated, the rights of parents, a declaration that the physician has adequately explained abortion and more.
Planned Parenthood sued the state even before the law went into effect, and a judge at the time granted a preliminary injunction that kept it from being implemented while the case played out.
A separate restriction has remained in place. Known as the Parental Notice of Abortion Act, the voter-backed referendum passed in 2012 requires health care providers notify parents or legal guardians at least 48 hours in advance when a child under the age of 16 seeks an abortion.
Due to a series of judicial slowdowns, it wasn’t until February 2023 that a Helena judge from Lewis and Clark County District Court deemed the consent act to be unconstitutional. Montana Attorney General Austin Knudsen appealed the decision, putting it to the state Supreme Court for oral arguments in March of this year.
The state argued the consent act protects minors from sexual victimization, maintains the rights of parents and safeguards youth from making “rash or poorly reasoned decisions that often result from a minor’s underdeveloped decision-making capacity.”
Planned Parenthood’s position, ultimately echoed in the Court’s unanimous decision, hinged on Montana’s constitutional right to privacy. The rights of parents, the plaintiff asserted, do not outweigh the right of every Montanan, including minors, to make private and autonomous decisions about their health care, including abortion.
“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,” the opinion reads. “At the end of the day, those questions are left to the woman who must decide for herself.”
Gov. Greg Gianforte issued a statement on the decision as well, describing it as “anti-parental rights.”
“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.”
Planned Parenthood of Montana celebrated the ruling.
“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,” Martha Fuller, president and CEO, said in a statement.
This case did not concern the parental notification rule approved by voters 14 years ago, which is currently being challenged in district court. At the time, over 70% of voters supported the measure.
Chase Scheuer, press secretary for Knudsen, said the court’s latest decision on the consent requirement “proves how radical and out-of-touch the Montana Supreme Court is with their constituents,” and teased that the Attorney General’s office is reviewed possible next steps.
“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,” Scheuer said. “After 11 years of litigation, the Supreme Court took that right away from parents across the state.”
Abortion remains a key policy issue for Democrats and Republicans in Montana alike.
During the 2021 and 2023 State Legislatures, Republican lawmakers put forth a slew of bills aimed at limiting the abortion landscape. Some have been struck down in court as unconstitutional, and others remain enjoined due to legal challenges.
The coalition supporting Constitutional Initiative 128, a proposed constitutional amendment that would explicitly write the right to an abortion up to fetal viability into the Montana Constitution, said it submitted more than enough signatures to get the initiative on ballots this November. Although, the effort has been hit with a barrage of legal challenges, and signatures have not yet been verified by the Montana Secretary of State’s office. The deadline is Aug. 22.
Carly Graf is the State Bureau health care reporter for Lee Montana.
