Law requiring parental consent before abortion struck down as unconstitutional

But, law requiring parental notice likely heads to trial

By: - March 1, 2023 1:33 pm

(Photo by Getty Images).

A Lewis and Clark County District Court judge has permanently struck down a law that would require parents to give permission if their minor child wants an abortion, saying that law runs contrary to the Montana Constitution and the state’s landmark abortion decision, Armstrong vs. State of Montana.

However, Judge Christopher Abbott also declined to make a ruling on a separate parental notification law until a trial can be set, saying that not all the issues have been fully examined, therefore making a summary judgment impossible.

“Now before the court are two statutes: One, enacted by the people, requiring parental notice prior to an abortion, the other, enacted by the legislature, requiring parental consent. Whether these are popular or wise measures or reflect sound public policy is not for this court to decide, for the legislature (or the people, in the cases of initiative and referendum) holds the power to make law,” Abbott wrote.

At the heart of the case are two bills that govern how and when parents should be notified about a minor who seeks to have an abortion. One law, the Parental Consent to Abortion Act of 2013 required parents to approve an abortion procedure before a doctor could perform it, except in certain limited cases. Abbott ruled that both the case law and state constitution made such an act illegal, and permanently struck it down.

The Montana Attorney General’s Office was not immediately available to comment on whether the ruling will be appealed when contacted for this story on Wednesday.

Abbott stopped short of making a ruling on a second piece of legislation, the Parental Notification of Abortion Act of 2011, that would not seek a parent’s permission if a minor seeks an abortion, but would require them to be notified. Abbott said that the narrower scope of the law, plus unanswered questions, means the case will head to trial.

Planned Parenthood of Montana and Dr. Samuel Dickman, the plaintiffs in the case, praised the ruling.

“The court’s ruling that parental consent for abortion is unconstitutional is an important protection for the most vulnerable youth in Montana.  In this ruling, the court affirmed the Armstrong decision and recognized the rights of minors under the Montana Constitution,” said Martha Fuller, President and chief executive of Planned Parenthood of Montana. “This has been a long awaited decision, and we feel confident that the court will ultimately also find the parental notice requirement unconstitutional.”

Minors, Armstrong and the Montana Constitution

Much of Abbott’s 51-page ruling focused on the Montana Constitution and the Armstrong vs. State of Montana decision, which has controlled case law in Montana for nearly a quarter century.

Not only does the state’s constitution guarantee the right to privacy, something far more expansive than the protections found in the U.S. Constitution, it also explicitly states that minors have the same rights as adults, and the state can only pass laws that enhance their rights, or abridge them only with a compelling reason and a narrowly crafted law.

“The right to individual privacy, however, also includes decisional or autonomous privacy, that is, ‘the right to be let alone,’ a concept the Montana Supreme Court has recognized since at least 1952,” Abbott said. “The delegates to the (Constitutional) Convention described this autonomous component of the right to privacy as ‘the most important of them all’ and as a means of erecting a ‘semipermeable wall of separation between individual and state.’”

Abbott pointed out that the age of consent for sexual activity is 16, that minors have the right to adopt children, and parent them, so it impossible to believe that they should be able to do all of those things, but not make personal medical decisions, as in when to terminate a pregnancy.

Abbott wrote:

“Minors can abstain from consuming alcohol or getting a tattoo with little effect on their futures, but the same cannot be said of keeping a pregnancy or having an abortion. Though they are weightier and more enduring, even poor decisions in marriage and schooling can be undone. By contrast, there are few decisions with higher or longer-lasting stakes in life than whether to become or stay pregnant, and even fewer (if any) with equally profound spiritual, physical, mental, social, and economic considerations. The complexity of the dilemma only reinforces its individuality and therefore its place at the core of personal privacy.”

Abbott also noted that the law was overly burdensome. It required not just consent, but requires the medical provider to obtain notarized written consent, along with identification verification and proof of guardianship. The law also allows parents to ask questions about their child’s medical information. Finally, the physician is required to “execute another affidavit that they are satisfied that ‘a reasonable person under similar circumstances would rely on the information presented by both the minor and the minor’s parent or legal guardian as sufficient evidence of identity and relationship.’”

Relying on Armstrong, Abbott said that no decision would be more personal than a decision about pregnancy, and therefore, abortion wasn’t like some other medical consideration:

“The impact of pregnancy or an abortion on the person who must live with the decision and directly bear the consequences is no less great because that person is a minor. One cannot reasonably dispute that the Consent Act requiring the minor to surrender consent to an abortion to another unless an exception applies – implicates a minor’s personal autonomy over medical care of their own body at least as much as a law merely restricting these types of providers whom she may see for that care.”

Abbott pointed out that Montana’s Constitution was written so that minors, with certain exceptions, enjoy all the rights of adults, and that the Legislature can pass laws to enhance those rights, not restrict them.

“If the right to trial by jury, the right to counsel, and the privilege against self-incrimination are so personal and impactful on a minor that the State cannot transfer those decision from child to parent, the same logic requires the same result for the even more personal and more impactful decision whether to carry an unborn child to term,” Abbott said in his ruling.

Parental Notice of Abortion Act of 2011

In 2011, the Parental Notice of Abortion Act was passed by Montana voters by a substantial margin, and required medical providers to “give actual notice” 48 hours in advance to a minor under the age of 16. That notice requires communication by person or by telephone. Failing that, the doctor must give notice via certified mail.

“The constitutionality of the Notice Act presents a closer question,” Abbott said. “Although it serves the same ends as the Consent Act, its mechanics are starkly different and much less onerous.”

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming.