Montana Supreme Court considers parental consent case for minors seeking abortion

The Montana Supreme Court on Wednesday heard arguments in a winding, years-long case about whether minors must receive parental consent for an abortion, revisiting a fraught legal question that Montana voters, lawmakers and residents have grappled with for more than a decade.

The case stems from two restrictions that originated in 2012 and 2013: a voter-approved referendum for parental notification when a minor under 16 years old seeks an abortion, and a law requiring parental consent for all abortion patients under the age of 18 that passed the following year. 

Both laws were later challenged by Planned Parenthood of Montana, but the case stalled for years while being passed between judges at the district court level. The litigation was revived under the administration of Montana Attorney General Austin Knudsen.

Wednesday’s hearing took place roughly a year after a state district court judge in Helena ruled that the parental consent law violated Montana’s constitutional right to privacy. In the same ruling, Judge Christopher Abbott said that factual questions remained about the parental notification requirement, and he allowed that restriction to remain in effect while the litigation continues. Those proceedings are on hold while the Supreme Court considers the appeal about parental consent. 

Montana Deputy Solicitor General Brent Mead fielded several rounds of questions on Wednesday from justices on the seven-judge panel, arguing that the higher court should reverse Abbott’s decision about the consent requirement. The consent act, Mead said, correctly protects minors by involving a responsible adult in the navigation of a weighty life decision and still allows youth patients to bypass the consent requirement with a judge’s permission if their family situation is unsafe. 

While Abbott’s ruling found that the consent act wrongly interfered with a patient’s right to privacy, Mead tried to draw the Supreme Court’s attention to a different section of the constitution that deals with the rights of minors. 

“Article 2, Section 15 plainly allows the preclusion of a minor’s fundamental rights if a law is designed to enhance their protections,” Mead said. If a minor receives an abortion and experiences any physical or psychological hardship after the fact, he argued, “the parental involvement provision is there to ensure that there is someone who is observing the minor for these symptoms when they manifest.”

Justice Ingrid Gustafson interrupted that line of reasoning, pointing out that nothing about the parental consent act requires attentive follow-up care after a medical procedure.

“The act doesn’t require the parent to monitor the child or do anything, right?” Gustafson said.

“Your honor, that’s because parental involvement furthers the fundamental rights of parents to care and nurture their children,” Mead said.

In another exchange, Justice Dirk Sandefur asked Mead to respond to the apparent conflict between the consent act and Montana’s right to privacy, which allows pre-viability abortion access. Under the 1999 ruling in Armstrong v. State, the government can only infringe upon a person’s abortion access by proving it has a “compelling state interest” related to a patient’s bonafide health risk.

In response, Mead again pointed to the constitution’s section about the rights of minors, saying the state does not have to prove a compelling interest to interfere with privacy rights if it is attempting to protect youth.

“We prohibit minors from exercising entirely the fundamental right to privacy, as applied to the intimate choice to marry if they are under 16,” Mead said, making the same argument for the state law that deems minors under 16 as not capable of consenting to sexual intercourse.

The attorney representing Planned Parenthood of Montana, Tanis Holm, challenged the state’s emphasis on that part of the constitution’s rights for minors. Instead, she asked the Supreme Court to consider the right to privacy first and foremost.

“For minors, just like adult women, being forced by others to carry their pregnancy to term will have life-altering impacts. It unquestionably infringes on their right to privacy. And despite this, the state argues that you should take away that ingrained right to privacy and apply this balancing test, which would be a novel approach,” Holm said. 

Holm also took issue with the state’s arguments that the consent act would protect minors from medical and psychological risks associated with abortion while pointing to recent state court decisions that found that procedures to terminate pregnancies are “exceedingly safe.”

“How would the consent act protect minors from physical and psychological harm? How would telling a parent, or actually giving a parent veto power over their child’s decision to have an abortion — how would that protect the minor against psychological harm? They haven’t pointed to any evidence in their briefing,” Holm said.

Justice Jim Shea raised questions to Holm about whether the state had a compelling interest in making sure that minors could provide informed consent about their health procedures, and, if so, if parental notification would be a reasonable requirement.

“That’s basically what the state was saying, is that adults are going to be more well equipped to remember. My daughters don’t remember when they had chickenpox, or if they did,” Shea said. “I’m not trying to be glib, but if you’re talking about medical histories, there’s a lot of medical history that parents know about their children, that the children may not recall themselves.”

Holm countered that the state lacks evidence to show that minors insufficiently communicate their medical histories to health providers. And, she continued, minors are allowed to make other health decisions of comparable seriousness without similar restrictions in place. 

“They can get birth control. Minors can proceed to [going] through with their pregnancy. Minors can have a C-section,” Holm said. “Minors can get treatment for STDs, all without telling their parents or receiving consent from their parents. If they can do that there, why can’t they do that with abortion?”

Justice Beth Baker, overseeing the day’s proceedings in place of Chief Justice Mike McGrath, who recused himself from the case near the end of January, said the court would take the case under advisement and issue its decision in due time.

Mara Silvers is a reporter for the Montana Free Press, a nonprofit Helena-based newsroom, and can be reached at msilvers@montanafreepress.org.