State, Planned Parenthood argue parental consent law before Supreme Court
The state argued Wednesday before the Montana Supreme Court that a Helena judge was wrong last year when he struck down a parental consent law for minors seeking abortions, saying minors are not entitled to the same privacy rights as adults and that the lower judge should have focused on balancing what privacy rights minors do have against the state's interest in protecting them.
But the lawyer for Planned Parenthood of Montana countered that the state has not proved it should have the ability to restrict the rights of minors to access abortions.
Wednesday’s hearing marked another step in the more-than-a-decade-long case over parental involvement abortion laws in Montana. The Notification Act was put into place by voters through a ballot issue in 2012 and the Consent Act was created by lawmakers shortly after, and Planned Parenthood of Montana later sued. Last February after years of delay, a Helena judge struck down the state’s parental consent law, saying it conflicted with the individual right to privacy established in the state’s Constitution.
The district court judge also ordered a trial over the notification act, saying there were genuine disputes of fact in court debate over the law. The notification requirement has been in place while the litigation plays out.
Abortion is legal in Montana under the 1999 state Supreme Court order known as Armstrong that found the Montana Constitution’s right to privacy protected access to the point of viability. Republicans have long had their sights on overturning Armstrong, and have said following the fall of Roe v. Wade at the federal level, Montana’s protections should also go. However, courts have found repeatedly Montana’s right to privacy is one of the strongest in the nation. Several laws limiting access to abortion in recent legislative sessions have stalled out in the courts.
“The Montana Constitution, Montana law in this court's precedents recognize the basic truth that children are different from adults and require protection,” argued Brent Mead, a lawyer representing the state Department of Justice on Wednesday.
A portion of the hearing focused on the district court judge’s strict scrutiny of the case, or determining if the consent law was the least-invasive way possible to implement the government’s interests in protecting minors. Where Mead said the state felt that parental identification requirements in the consent act cleared up a loophole where someone other than a minor’s parent could be contacted to consent to the abortion, Justice Jim Shea asked what would prevent the notification act from being updated to include the same identification provisions — resulting in a less-restrictive measure.
Mead's arguments also included the claims that minors who obtain abortions face risks to their physical and mental health.
“The plaintiffs don't require follow-up care on a minor who obtains an abortion. And so the parental involvement provision is there to ensure that there is someone who is observing the minor for the symptoms when they manifest either in the case of some physical symptoms like internal bleeding, if that manifest two or four days later, there is someone there who knows what happened,” Mead said. “ … Parental involvement furthers the fundamental rights of parents to care and nurture their children.”
But Tanis Holm, the lawyer representing Planned Parenthood of Montana, countered that point.
“This court has found in numerous cases that abortion is exceedingly safe.” Holm argued. “ … It's important that to know that minors who seek abortion care, they're not left on an island by themselves to navigate the abortion process. They nearly always involve an adult in the process, whether that be a parent, a guardian or another trusted adult. ... How would … giving a parent veto power over their child's decision to have an abortion, how would that protect a minor against psychological harm? (The state hasn't) pointed to any evidence in their briefing."
While the state argued that parental notification would inform parents of possible abuse situations, Holm said the state already has mandatory reporting laws related to sexual abuse of minors.
“Minors … can get birth control, minors can proceed … through their pregnancy, minors can have a C-section, minors can get treatment for STD, all without telling their parents or receiving consent from their parents. If they can do that ... why can't they do that with abortion?” Holm argued.
Holm also argued the state had not presented evidence that showed abortion would create medically bonafide health risks that gave the state the ability to intervene and curtail the rights of minors.
A brief submitted by the American College of Obstetrics and Gynecology, the American Medical Association, the Montana Medical Association, the Society for Maternal-Fetal Medicine and Society of Family Planning found that major complications occur in just 0.23% to 0.5% of abortions across all gestational ages and methods.
Mead said while Article 2, Section 15 of the Montana Constitution gives equal footing for privacy rights to adults and children, a preclusion clause carves out exceptions he said apply in this case.
“If the state satisfies the prerequisite to Article 2, Section 15 that the law is intended to protect minors, then it becomes a rights-balancing analysis where you look to the nature of the state's infringement of the right versus the nature of the state's protected interest, and in this case, the fundamental rights of parents to care for their children,” Mead argued.
Holm countered that argument, saying minors had a right to access abortion care in Montana.
“For minors, just like adult women, being forced by others to carry their pregnancy to term will have life-altering impact. 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. It has never been done by this court in terms of a fundamental right,” Holm argued.
“It is stepping into the shoes of parents, trying to regulate the relationship with the family, singling out abortion as opposed to all other health care services,” Holm continued.
While Mead also frequently pointed to judicial bypass provisions in the consent law, saying it would offer options and protections for a child with parents who may be their child's abuser or close to their abuser, Holm said the carve-out only delays access to care, causing stress and delays that could pose health risks. The process is also hard to navigate, especially for a minor, Holm argued.
Back in 2012 voters approved the Parental Notice of Abortion Act, and it became law a year later. It requires medical care providers to give notice to a parent at least 48 hours before performing an abortion on a minor under the age of 16 and allows for exceptions in some cases.
Also in 2013, the Legislature passed the Parental Consent for Abortion Act, which is more restrictive than the Notice Act. A doctor must get notarized and written consent to perform an abortion for a minor until the age of 18, along with getting consent through a complex form developed by the state health department, in addition to documentation that someone is a parent or legal guardian.