Montana Supreme Court finds parental consent law unconstitutional

(CN) — The Montana Supreme Court on Wednesday found Montana’s law requiring parental consent for a minor's abortion violates the right to privacy when making medical decisions.

The justices ruled the Parental Consent for Abortion Act of 2013 violates "the fundamental right of a minor to control her body and destiny" under the state constitution. They found the state failed to show how the act was tailored to promote parental rights, protect children from sexual victimization and ensure they make informed decisions.

“A minor’s right to control her reproductive decisions is among the most fundamental of the rights she possesses,” Justice Laurie McKinnon wrote for the unanimous court.

Montana's attorney general's spokesperson Chase Scheuer said that the justices are "out of touch."

"It is ludicrous to believe that a child’s parents should not be informed before a major medical procedure and Montanans agree," Scheur said. "In 2012, 70% of Montanans supported a parental notice act, which was also challenged by Planned Parenthood and is going to trial."

But the justices found the right of privacy is guaranteed in Montana’s Constitution and is a fundamental right for minors as well as adults. Montanans have a constitutional right to make medical judgments with a health care provider free from governmental interference — which protects the right to procreative autonomy, they found.

“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,” McKinnon wrote.

McKinnon also noted the overwhelming evidence of the safety of abortions, including that complication rates from abortion are similar to or lower than other outpatient procedures. The American Medical Association and other medical organizations oppose parental consent laws, arguing that forced parental involvement is more likely to deter children from seeking care.

“Moreover, the evidence establishes that receiving an abortion does not increase the likelihood of developing mental or physical side effects such as post-traumatic stress, compared to those who continue a pregnancy,” McKinnon wrote. 

The high court found the state failed to logically connect the Consent Act to preventing minors from being victimized even when teen pregnancy is the result of assault. In Montana, minors under the age of 18 but older than 16 may consent to sexual intercourse, and therefore many seeking abortions are older than the age of consent. Montana’s law requiring medical providers to promptly report any known or suspected sexual abuse is a better protection of minors, the justices said.

The justices also found it illogical for the state to argue that minors who carry pregnancies are making more mature decisions than those who choose abortion care. Minors who must carry a child to term will become fully responsible for an infant, and may face far more traumatic physical, financial and emotional consequences, McKinnon wrote for the court.

And the justices disagreed with the state’s assertion that the Consent Act empowers parents who don't make decisions in their children’s best interest.

“It is difficult to conclude that providing a parent with unilateral veto power over a minor’s exercise of a fundamental right, made in conjunction with the minor’s care provider, will strengthen the family unit,” McKinnon wrote. “The state may not interfere with a parent’s upbringing of a child, but it does not follow from such a proposition that parents have a right to enlist state support to prevent or even be informed about a child’s exercise of her own constitutionally protected rights.”

The act's judicial waiver provision cannot remedy the act's issues either, since it introduces delay for the minors and increases the chances they cannot get a safe and legal abortion. Missing school or work and facing the costs of transportation, legal counsel and lost time disproportionately impact economically disadvantaged people, McKinnon said, adding: “These financial and logistical barriers may be even more pronounced for indigenous and marginalized people.”

She closed by noting the panel declined to answer questions about the moral, medical and societal implications of reproductive health care. "At the end of the day, those questions are left to the woman who must decide for herself,” McKinnon wrote.

Martha Fuller, president and CEO of Planned Parenthood of Montana, applauded the ruling.

“This decision affirms the right to privacy and we are pleased that the court upheld the fundamental rights of Montanans today," Fuller said in a statement. "Montanans deserve the ability to make private medical decisions and have the ability to access abortion care if that is what is best for patients and families.”

Montanans may have the opportunity to enshrine abortion rights in the state constitution through Constitutional Initiative 128, which the state Supreme Court approved for signature gathering after rejecting the state attorney general’s determination the initiative was legally insufficient. The justices also rejected the AG's ballot statement as legally flawed and ordered him to use theirs.

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