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As far as Montana abortion lawsuits go, the case decided Wednesday by the Montana Supreme Court was both very old and surprisingly novel.
This version of Planned Parenthood v. State originated in 2013 and, for bewilderingly mundane reasons I can hash out another time, languished in the court system for about a decade. The law at the heart of the case never went into effect and the question at issue — can the Legislature require minors to obtain parental consent before getting an abortion? — remained unanswered.
That status quo changed Wednesday when the court unanimously found 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.”
That full-throated endorsement of minors’ rights to medical privacy is the novel part. Also apparently new is the way the court reached its conclusion, authored by Justice Laurie McKinnon.
Typically, abortion litigation in Montana centers on one part of the Montana Constitution: the fundamental right of privacy. But in this case, two other fundamental rights were also implicated: the fundamental rights of minors and of equal protection under the law.
Unlike the federal Constitution, the Montana Constitution makes it expressly clear that minors have all the same rights as adults unless restrictive laws specifically “enhance the protection of such persons.” In this situation, the Supreme Court found that the 2013 Parental Consent for Abortion Act was not “narrowly tailored” to enhance such protections.
Rather, the court said, the law had the effect of imposing “onerous and burdensome requirements” on pregnant youth seeking a health care service to end their pregnancy. In violation of equal protection rights, the court continued, the law created no such similar consent requirements for minors who sought health care services in order to carry their pregnancies to term.
“A minor’s right to dignity, autonomy, and the right to choose are embedded in the liberties found in the Montana Constitution. 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,” the court decided.
As much as the court treads new ground in this ruling, there were also “old” elements of abortion litigation that the justices noted. Responding to the state’s argument that the Consent Act is necessary to protect youth from the physical and mental harms of abortion, the court seemed to give a collective, exasperated sigh — almost as if to say, “We’ve been over this before.”
“The evidence establishes, with no genuine dispute of fact, that abortion care is one of the safest forms of medical care available in this country and the world. Medical risks for abortion are considerably lower than for pregnancy and childbirth, and, in general, adolescents show no substantial psychological effects from abortion. The consequences of not being able to terminate an unwanted pregnancy can be decidedly more traumatic and severe than for obtaining an abortion,” the court wrote.
The court further criticized state attorneys for barely acknowledging important Montana abortion case law developed over the last 25 years: the seminal Armstrong opinion of 1999, which first identified abortion as protected under the Montana right of privacy, but also the Weems case of 2023, which found that advanced practice registered nurses can safely provide abortions.
“The State has failed entirely to address Weems; indeed, the State has not mentioned Weems and this Court’s conclusions and analysis in any of its briefing, despite Weems being significant precedent for resolving this challenge,” the court noted. In a footnote, the order observed that the state “made only a passing reference” to Armstrong in a recent brief.
The Planned Parenthood case is now a part of the solidifying foundation of legal precedent in Montana about abortion access. The procedure — an expression of bodily autonomy and reproductive control — is closely guarded by the right of privacy, and in this case, other parts of the Constitution, too.
There remain, by my count, three other abortion cases pending before the Montana Supreme Court, involving a slew of laws from 2021 and 2023. If Wednesday’s 36-page ruling is any indication, the court will likely spend a generous amount of ink on each one in future months, even as it appears to consider the issue largely settled.
—Mara Silvers, Reporter
Glad You Asked 🙋🏻
Concern over Donald Trump’s rhetoric on race has heightened in the wake of his appearance before the National Association of Black Journalists last month, where the Republican presidential nominee openly questioned the racial identity of his Democratic opponent, Vice President Kamala Harris. That concern landed on our desks this week as a reader called in with questions about how Trump’s Aug. 9 event at Montana State University squared with the campus’ diversity, equity and inclusion policy.
MTFP reached out to MSU Vice President of Communications Tracy Ellig for a better grasp of the considerations surrounding such events. Trump spoke at the Brick Breeden Fieldhouse, a publicly available venue that’s rented through MSU’s Office of Event Services and Sports Facilities for a standard rate of $3,250 a day. Ellig acknowledged the university has fielded similar questions since Trump’s appearance and explained that once a subdivision of government like MSU makes a space like the fieldhouse available for public use, its actions are governed by the First Amendment. In other words, an entity can’t withhold the rental of a public space based on the political speech of the renting party.
College campuses across the country have been a fixture in presidential campaigns for a long time. One week prior to his Bozeman appearance, Trump held a rally at another public campus, Georgia State University. And on the same night Trump spoke at MSU, Harris delivered a speech to a packed Arizona crowd at the Desert Diamond Arena, a facility owned by the city of Glendale. Montana campuses are no stranger to such events either. During his 2008 campaign, former President Barack Obama held a rally at the University of Montana’s Adams Center and contracted with the university to provide free bus service to the event. That same year, Obama also visited Brick Breeden Fieldhouse, and Ellig noted that MSU used the same rental processes and agreements then that it did this month.
MSU’s policies on sports facilities rentals do outline requirements and restrictions specific to political campaigns, including a prohibition on disrupting university programs and activities. Per those requirements, the conduct of the campaign activities themselves is subject to MSU’s Freedom of Expression policy, which strictly prohibits harassment, defamation, and “the use of violence, or credible threats of violence.”
—Alex Sakariassen, Reporter
Following the Law ⚖️
For the second time in as many months, a state district court judge has sided with Montana Fish, Wildlife and Parks and hunting groups in a lawsuit over elk management.
The dispute relates to a 2003 law directing Fish, Wildlife and Parks to manage elk “at or below” the sustainable populations established in the state’s elk management plan. Two years ago, the United Property Owners of Montana, a membership-based nonprofit that promotes its members’ business interests, sued FWP, arguing that swelling elk populations have damaged its members’ bottom lines.
Among other changes, UPOM asked the state to “remove, harvest, or eliminate thousands of elk” and design and implement an emergency plan to reduce the “illegal overpopulation of elk as soon as practicable.” A coalition of hunting and public access groups troubled by that request and suspicious of UPOM’s motives successfully petitioned the court to intervene in the lawsuit.
A trio of rulings issued in July narrowed the scope of a hearing scheduled for Oct. 21, and the latest order, issued Monday by District Court Judge Gregory Todd, further trims the issues that will be considered at that hearing.
In the most recent order, Todd found that UPOM had not sufficiently demonstrated the damages its members have suffered. He chastised the group for failing to provide “a single record of damage by elk to a UPOM member property,” excepting Mark Robbins, who had been asked to illuminate the damages and frustrations experienced by the UPOM membership. Todd appeared frustrated that UPOM did not include the names and addresses of its injured members in its filings or respond to discovery or deposition requests for such information, describing the group’s opposition to producing it as “unbelievable.”
As with previous orders, the Aug. 12 order enumerates the programs available to landowners to address damage incurred by elk — block management and elk hunting agreements as well as nonlethal efforts such as hazing, fencing, or relocation — and concluded that “UPOM members are not left without a plain, speedy, or adequate remedy and have not suffered irreparable injury regarding elk on their property.”
Chuck Denowh, UPOM’s policy director, told MTFP that “the heart of the lawsuit” regarding the state’s compliance with a law passed in 2003 seeking to mitigate landowner concerns related to an overabundance of elk in some districts remains active.
Rob Farris-Olsen, an attorney representing the groups that have intervened in the lawsuit, said Todd could issue a summary judgment on that point prior to Oct. 21, negating the need for a hearing and closing the book on the lawsuit.
—Amanda Eggert, Reporter
Public Notice 🪧
Montana homeowners have until Oct. 1 to apply for the second of two rounds of property tax rebates authorized by last year’s Montana Legislature, potentially getting as much as $675 back on their 2023 tax bill.
The rebates have been touted by Gov. Greg Gianforte as a short-term effort to offset last year’s dramatic upswing in property taxes, which saw residential taxes increase by 21% on median statewide, according to an MTFP analysis. Democrats and Republicans have both said they want to adopt some form of longer-term tax relief when the Legislature meets again next year.
According to the state Department of Revenue, the rebates are available for houses, condos, and mobile homes that were owner-occupied for at least seven months last year. Only a single rebate per household is allowed, and homes held through a corporation or some type of trust are ineligible. Additionally, the Legislature didn’t authorize rebates for renters, even though a landlord’s tax bill is typically factored into rent payments.
More information about the rebates and how to apply for them is available on the state revenue department website.
SEE ALSO: Republicans, Democrats float ideas to lower home property taxes.
—Eric Dietrich, Deputy Editor
Fire Report 🔥
Over the last week, Montana’s rainy weather held off new fires and rapid growth of those already burning. Though a large number of personnel continue working to contain blazes across the state, no fires grew at a substantial pace.
The Grouse Fire is the state’s largest active fire, covering just over 4,000 acres in Beaverhead County. Situated in steep terrain among natural fire breaks and hand-dug fire lines, it has grown by only 16 acres since Friday, Aug. 9. The team managing the fire is demobilizing and returning command to local responders.
The Black Canyon Fire consists of three fires covering a combined 233 acres along the edge of Helena National Forest, roughly halfway between Helena and Great Falls. Though only 20% contained since it began on Aug. 11, reports from firefighters indicate it is unlikely to grow rapidly.
The Circle Bar Fire, meanwhile, is one of the newest fires in the state. It was first reported on Wednesday in southeastern Montana. The blaze already spans 796 acres of forests and grasslands. It is 40% contained.
The Black Mountain Fire, a 182-acre fire on the western edge of Lewis and Clark County, is not expected to significantly increase in size, according to Helena-Lewis and Clark National Forest.
After predicted storms across western Montana on Friday, the weather forecast suggests wildfire-resistant conditions in the coming days.
While lightning anticipated on Friday and Saturday presents the potential to start new fires, Montana’s extended period of high humidity and slow winds is likely to hold through the weekend, according to the National Weather Service. The National Weather Service also expects temperatures to increase over the next several days. Smoke from wildfires in Washington, Oregon, and northern California are likely to leave Montana skies a little hazy over the weekend.
SEE ALSO: MTFP’s summer 2024 fire dashboard.
—Zeke Lloyd, Fire Reporting Intern
Verbatim 💬
“Who am I to endorse anybody? I’m just a 68-year-old Montanan that wants the best for everybody. My endorsement shouldn’t mean shit, really.”
—Bob Ingram, a retired nurse and wild game butcher who lives near Havre, speaking to MTFP in August about Democratic candidate for governor Ryan Busse’s pursuit of Ingram’s “endorsement,” to be displayed in a video on the campaign’s social media website.
Ingram, a prominent voice in the campaign profile we published this week about Busse’s outreach to Republican voters, met Busse when the
