The Montana Supreme Court ruled on Aug. 14 that a state law requiring parental consent for minors to access abortion violates their right to privacy under the state constitution.
Montana’s Parental Consent for Abortion Act has been held up in litigation since it was approved in 2013. It requires girls under the age of 18 to obtain parental consent before seeking an abortion unless a judicial waiver is obtained. However, it doesn’t stop a minor from seeking medical care or surgery related to her pregnancy or child.
Justice Laurie McKinnon, writing the majority opinion, said the Consent Act’s classification imposes an undue burden on minors seeking abortions, violating “the fundamental right of a minor to control her body and destiny” as guaranteed by Article II, Section 10, of the Montana Constitution.
“The Consent Act, therefore, cannot be sustained against Plaintiffs’ privacy and equal protection challenges,” McKinnon wrote.
“Because a minor’s right to control her reproductive decisions is among the most fundamental of the rights she possesses,” she continued, “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.”
Chase Scheuer, press secretary for Montana Attorney General Austin Knudsen, said the decision showed the court is radical and out of touch with constituents.
“It is ludicrous to believe that a child’s parents should not be informed before a major medical procedure and Montanans agree,” Scheuer said in a statement. “In 2012, 70 percent of Montanans supported a parental notice act, which was also challenged by Planned Parenthood and is going to trial.”
Pointing to Justice James A. Rice’s concurring opinion, Scheuer said, “The public deserves better than what occurred in this case, and courts must do better.”
Knudsen argued that Montana has a compelling interest in protecting minors from their own immaturity and that they can’t make fully informed decisions. The justices agreed, but said that also applies to minors who choose to carry their pregnancies to term.
McKinnon said that minors, like adults, have a fundamental right to privacy in “procreative autonomy” and medical decisions in partnership with a chosen health care provider free from government interest.
“The Consent Act infringes upon a minor’s fundamental right to privacy because it conditions a minor’s obtaining an abortion on parental consent or obtaining a judicial waiver, something a minor choosing to carry her pregnancy to term would not have to do,” she wrote.
The decision doesn’t affect a separate law, also being challenged, that requires parents be notified when their underage child seeks an abortion.
Abortion has been recognized as a right under Montana’s constitution since 1999. Currently, state law permits abortions until fetal viability, usually around 24 weeks.
