In May 2013, Planned Parenthood sued the state of Montana after voters approved a ballot measure that required minor girls to get parental consent prior to an abortion. Remarkably, over 70 percent of voters in the state approved the measure, which would require an abortion practitioner to notify a parent of a girl younger than age 16 before performing an abortion. Planned Parenthood argued that the law violated Montanans’ right to privacy and unconstitutionally discriminated against girls who would choose to have an abortion.
After the measure passed, District Judge Jeffrey Sherlock ruled that the law was unconstitutional and ordered that it be thrown out; however, on Tuesday the Montana Supreme Court overturned the lower-court’s decision citing an error in Judge Sherlock’s ruling.
In a press release, the Montana Family Foundation issued a statement that read, “Montana families have the right to make decisions in their own home. This decision recognizes that. Teenagers can’t have their ears pierced, play high school sports, or have any other surgery without parental consent. A major medical procedure like an abortion should be subject to exactly the same laws. That’s why the Montana Family Foundation supported these laws through the Legislative process, and that’s why we worked to support the ballot referendum. It’s just common sense that underage children should have their parents’ consent before someone operates on them.”
He said, “In Montana, a teenager younger than age 18 can’t get a tattoo or a body piercing without a parent’s permission. Yet most people are stunned to learn that a girl of any age – even 12 or 13 – can be taken for an abortion without her parents even knowing about it. This is totally legal under current Montana law,” he said. “Why is this important? Think about this: Most schools won’t even give a child an aspirin without a parent’s approval. That is because parents know their child’s medical history, and as a society we hold parents responsible for protecting their children’s health.”
He added, “Abortion is obviously much more serious than getting an aspirin. It typically means invasive surgery, or the administration of powerful drugs. Complications can and do occur, such as hemorrhaging and infections. If a girl experiences complications after an abortion, how prepared will her parents be to provide follow-up care, if they’re completely in the dark that an abortion has occurred?”
The Montana Supreme Court on Tuesday overturned a lower-court decision that had thrown out state laws requiring parents to be notified and give consent before their underage daughter could get an abortion. The 4-1 decision said District Judge Jeff Sherlock of Helena erred when he ruled that the questions of the constitutionality of the 2011 and 2013 laws are essentially the same as had been settled when a 1995 parental-notification law was ruled unconstitutional in 1999.
That ruling sends the case back to Sherlock’s court, where Attorney General Tim Fox will now defend the laws against a lawsuit originally filed by Planned Parenthood Federation of America, challenging their constitutionality. Fox, a Republican, said he’s pleased with the decision, noting that Montana voters and legislators enacted the 2011 and 2013 laws. “The will of the people has been made clear,” he said in a statement. “Today’s ruling means we can move forward in vigorously defending the fundamental rights of parents to be involved in the decisions their children face.”
Planned Parenthood sued the state in May 2013 to void both laws. The 2013 Legislature passed the law requiring girls under 18 to get parental consent before obtaining an abortion, while Montana voters approved a referendum in 2012 requiring parents of girls under 16 years of age to be notified before the girl could get an abortion. The 2011 Legislature had placed the referendum on the ballot.
Sherlock ruled in January 2014 that the issues in the case are essentially the same as the 1995 law that was thrown out, and therefore the state could not defend the new laws. Supreme Court Justice Jim Shea, writing for the majority, said the 1995 law and the more recent laws have differences. For example, the 2013 law requires parental consent for abortions by a minor, whereas the earlier laws dealt only with notification.
Justices Laurie McKinnon, Beth Baker and Jim Rice joined Shea in the majority. Justice Patricia Cotter dissented, saying the question of constitutionality is essentially the same: Whether the state’s interests justify impingement on the rights of pregnant minors to choose to have an abortion.
The state interest in the 2011 and 2013 laws, including things like “protecting minors against their own immaturity” and “protecting the constitutional rights of parents to rear children who are members of their household,” are exactly the same as in the 1995 law, she said. Differences in the laws, such as the age at which they apply, are “immaterial” and don’t go to the constitutionality of the law, Cotter wrote.