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Judge Reverses Planned Parenthood Ruling

HELENA, Mont. (CN) - Montana may defend the constitutionality of two laws that require notification and consent from parents before a minor can have an abortion, a federal judge ruled.

Planned Parenthood of Montana and Dr. Paul Fredrick Henke, who practices obstetrics and gynecology in Butte, sued Montana and its Attorney General Tim Fox in 2013, challenging the constitutionality of the 2011 Parental Notice of Abortion and the 2013 Parental Consent for Abortion Acts.

They say the constitutionality of the laws cannot be defended because of a 1999 ruling in a similar case.

The argument involves issue preclusion, or collateral estoppel, which prevents the same parties from relitigating an issue already decided in another case.

In 1999, a Lewis and Clark County judge ruled in Wicklund v. Montan a that a 1995 law that required parental notification before a minor could obtain an abortion was unconstitutional. The state did not appeal.

Planned Parenthood, which was a plaintiff in that case, sued again over the 2011 and 2013 acts. A state court ruled that issue preclusion applied because the parties were the same, the issues were identical and the state had a "full and fair" opportunity to litigate the issues in Wicklund.

This time the state appealed, and a five-judge Montana Supreme Court panel ruled in favor of the state, finding, in part, that the 2011 and 2013 acts, combined, deal not only with notification, but also with parental consent.

"The issues would be identical if the laws were substantively identical," Justice James Shea wrote in a 15-page opinion. "The laws, however, are not substantively identical."

Shea also cited age applicability differences between the 1995 and 2011 laws, and the requirements needed to prove that a minor should be granted exemption from giving notice to parents.

"The 2011 act is silent as to the minor's burden of proof," Shea said.

Shea noted that the lower court's conclusion that the 2013 act was more restrictive than the 1995 act "highlights that the two laws are not identical."

He added: "Whether, or to what extent, those differences make the 2013 Parental Consent Act more or less apt to pass constitutional muster as opposed to the 1995 Parental Notification Act is not the question before us. The question before us is only whether the issues in the two cases are identical."

Justices Laurie McKinnon, Beth Baker and Jim Rice concurred.

The lower court's ruling was reversed and remanded.

Justice Patricia Cotter dissented on two grounds: that "the issue before the district court was whether the state's asserted compelling interests justify an impingement on the constitutional rights of pregnant minors who choose to obtain an abortion. This was the exact issue that was litigated in Wicklund; thus, the first element of the issue preclusion test ... is satisfied."

Cotter said the other three parts to the preclusion test were also satisfied because, in part, no appeal was taken in the 1999 case. She reiterated that the same parties were involved and that the state had full opportunity to litigate the case once already.

She added that some of the specific differences in the case, such as age applicability, are "wholly immaterial."

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