08/14/2024
DA 23-0272
Case Number: DA 23-0272
IN THE SUPREME COURT OF THE STATE OF MONTANA
2024 MT 178
PLANNED PARENTHOOD OF MONTANA
and SAMUEL DICKMAN, M.D., on
behalf of themselves and their patients,
Plaintiffs and Appellees,
v.
STATE OF MONTANA and AUSTIN KNUDSEN,
Attorney General of the State of Montana, in his
official capacity, and his agents and successors,
Defendants and Appellants.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. DDV-2013-407
Honorable Christopher D. Abbott, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Austin Knudsen, Montana Attorney General, Brent Mead (argued), Deputy
Solicitor General, Michael D. Russell, Michael Noonan, Thane Johnson,
Assistant Attorneys General, Helena, Montana
Emily Jones, Special Assistant Attorney General, Jones Law Firm, Billings,
Montana
Dale Schowengerdt, Landmark Law, PLLC, Helena, Montana
For Appellees:
Tanis M. Holm (argued), Colton Holm, PLLC, Billings, Montana
Anjali Salvador, Kyla Eastling, Planned Parenthood Federation of America,
New York, New York
For Amicus Montana Family Foundation:
Derek J. Oestreicher, Montana Family Foundation, Laurel, Montana
For Amicus National Center for Youth Law:
Rylee Sommers-Flanagan, Dimitrios Tsolakidis, Mikaela Koski, Upper
Seven Law, Helena, Montana
For Amici Forward Montana, If/When/How, and Indigenous Women Rising:
Caitlin Boland Aarab, Boland Aarab, Great Falls, Montana
Jessica S. Goldberg, If/When/How, Oakland, California
For Amici American College of Obstetricians and Gynecologists, American
Medical Association, Montana Medical Association, Society for Maternal-Fetal
Medicine, and Society of Family Planning:
Katherine S. Huso, Matovich, Keller & Huso, P.C., Billings, Montana
Nicole A. Saharsky, Mayer Brown LLP, Washington, District of Columbia
Argued and Submitted : March 6, 2024
Decided: August 14, 2024
Filed:
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__________________________________________
Clerk
2
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 This appeal requires the Court to consider Planned Parenthood’s challenge under
the Montana Constitution to a state statute, the Parental Consent for Abortion Act of 2013
(Consent Act), now codified at §§ 50-20-501-11, MCA.1 The Consent Act conditions a
minor’s right to obtain an abortion on parental consent unless a judicial waiver is obtained.
It imposes no corresponding limitation on a minor who seeks medical or surgical care
otherwise related to her pregnancy or her child. We decide today that the classification
created by the Legislature violates the fundamental right of a minor to control her body and
destiny as guaranteed by Article II, Section 10, of the Montana Constitution, Armstrong v.
State, 1999 MT 261,
296 Mont. 361,
989 P.2d 364, and Weems v. State,
2023 MT 82,
412
Mont. 132,
529 P.3d 798, without adequate justification from the State. The Consent Act,
therefore, cannot be sustained against Plaintiffs’ privacy and equal protection challenges.
Because a minor’s right to control her reproductive decisions is among the most
fundamental of the rights she possesses, 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.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 In 1999, a district court issued an opinion and order in the First Judicial District,
Lewis and Clark County, holding that the Parental Notice of Abortion Act of 1995
unconstitutionally violated a minor’s right to privacy and equal protection of the law.
1
The caption has been changed to reflect the current parties in this appeal.
3
Wicklund v. State, No. ADV 97-671, 1999 Mont. Dist. LEXIS 1116 (1st Jud. Dist. Feb. 11,
1999). The State chose not to appeal the court’s decision.
¶3 In January 2013, the Parental Notice of Abortion Act of 2011 (Notice Act) became
law following voter approval of Legislative Referendum 120 from the previous November.
The Notice Act repealed the earlier 1995 law. The Legislature, however, enacted the
Consent Act with an effective date of July 1, 2013, which repealed the Notice Act. Before
the effective date of the Consent Act, these proceedings were initiated. Because the
Attorney General consented to issuance of a preliminary injunction against the Consent
Act, the law it repealed—the Notice Act—remained in effect. This case does not concern
the Notice Act, which is currently being challenged in the District Court on constitutional
grounds.
¶4 On January 31, 2014, the District Court issued an opinion and order in these
proceedings holding that because the State did not appeal the 1999 Wicklund decision, the
State was collaterally estopped from defending the Notice and Consent Acts. On appeal,
however, this Court concluded that issue preclusion did not prevent the State from
defending the Consent and Notice Acts, because the laws were different from prior laws.
Planned Parenthood v. State,
2015 MT 31,
378 Mont. 151,
342 P.3d 684. The matter was
thus remanded for the court to determine the merits of the challenges. Due to a lengthy
series of judicial substitutions, recusals, and retirements, the matter was not decided until
February 2023.
¶5 Cross-motions for summary judgment were filed by Planned Parenthood and the
State contending that there were no genuine disputes of material fact that needed to be
4
resolved at trial, and that each was entitled to judgment as a matter of law. In a
comprehensive, fifty-page opinion and order, the District Court entered summary judgment
in favor of Planned Parenthood, concluding the Consent Act violated the Montana
Constitution. After considering the evidence, it held there were no genuine disputes of
material fact and determined that the Consent Act infringes on the right of privacy
guaranteed in Article II, Section 10, of the Montana Constitution, and defined in
Armstrong. The court held the Consent Act was not narrowly tailored to achieve the State’s
compelling interests, which the State identified as: (1) protecting minors from sexual
offenses; (2) monitoring post-abortion and mental health trauma; (3) ensuring minors
engage in fully informed decision-making; and (4) promoting parental rights. The court
did not address Planned Parenthood’s equal protection challenge. Regarding the Notice
Act, the court determined that, while serving the same ends as the Consent Act, the
“mechanics” of the Notice Act “are starkly different and much less onerous.” The court
determined there were factual questions in dispute regarding the Notice Act which were
not amenable to resolution on summary judgment. The District Court thereafter
determined to certify to this Court its decision relative to the Consent Act pursuant to Mont.
R. Civ. P. 54(b). On May 30, 2023, this Court entered an order allowing the appeal to
proceed and held oral argument on March 6, 2024.2
2
The District Court did grant the State’s motion for summary judgment with respect to one of
Planned Parenthood’s claims regarding the Notice Act: that the Notice Act violates the due process
rights of physicians and staff because it imposes absolute liability for violations of their
requirements without providing sufficient clarity as to what conduct is prohibited or required.
However, that issue was not certified under Mont. R. Civ. P. 54(b).
5
¶6 The Consent Act conditions a minor’s right to obtain an abortion on parental consent
unless a judicial waiver is obtained. The legislative findings provide the underlying
rationale for the Consent Act:
(1) The legislature finds that:
(a) immature minors often lack the ability to make fully informed choices
that take into account both immediate and long-range consequences;
(b) the medical, emotional, and psychological consequences of abortion
are sometimes serious and can be lasting, particularly when the patient
is immature;
(c) capacity to become pregnant and the capacity for mature judgment
concerning the wisdom of an abortion are not necessarily related;
(d) parents ordinarily possess information essential to a physician in the
exercise of the physician’s best medical judgment concerning the
minor;
(e) parents who are aware that their minor daughter has had an abortion
may better ensure that the daughter receives adequate medical care
after the abortion; and
(f) parental consultation is usually desirable and in the best interests of
the minor.
Section 50-20-502(1), MCA.
The legislative “purpose” of this part is to “further the important and compelling state
interests” of:
(a) protecting minors against their own immaturity;
(b) fostering family unity and preserving the family as a viable social unit;
(c) protecting the constitutional rights of parents to rear children who are
members of their household; and
(d) reducing teenage pregnancy and unnecessary abortion.
Section 50-20-502(2), MCA.
¶7 Towards these ends, the Consent Act prevents a physician or physician assistant
from performing an abortion on a minor unless the physician or physician assistant first
6
obtains notarized written consent of a parent or legal guardian of the minor.3 Section
50-20-504(1), MCA. The consent of a parent is invalid unless it is obtained in the manner
and on the form prescribed by § 50-20-505, MCA. Section 50-20-504(2), MCA. Section
50-20-505, MCA, requires that the Department of Health and Human Services create a
consent form to be used by the medical provider in obtaining the consent or waiver of the
consent by a parent or legal guardian. The form must disclose the rights of the parent or
legal guardian; the surgical or medical procedures that may be performed on the minor;
and the risks and hazards associated with the procedure planned for the minor. The
disclosures that must be made to the minor and parent include:
(i) any surgical, medical, or diagnostic procedure, including the potential
for infection, blood clots in veins and lungs, hemorrhage, and allergic
reactions;
(ii) a surgical abortion, including hemorrhage, uterine perforation or other
damage to the uterus, sterility, injury to bowel or bladder, a potential
hysterectomy caused by a complication or injury during the
procedure, and the possibility of additional procedures being required
because of failure to remove all products of conception;
(iii) a medical or nonsurgical abortion, including hemorrhage, sterility, the
continuation of the pregnancy, and the possibility of additional
procedures being required because of failure to remove all products
of conception; and
(iv) the particular procedure that is planned for the minor, including
cramping of the uterus, pelvic pain, infection of the female
reproductive organs, cervical laceration, incompetent cervix, and the
requirement of emergency treatment for any complications.
3
Since enactment of the Consent Act in 2013, this Court decided Weems which expanded the
scope of medical providers who could perform abortions beyond physicians and physician
assistants. However, for purposes of accuracy, this Court will use the actual language contained
in the 2013 Consent Act.
7
Section 50-20-505(2)(d)(i)-(iv), MCA. These disclosures must be made to the minor
regardless of whether a medication or surgical abortion is performed.
¶8 The form must include a minor consent statement that the minor must sign which
includes the following statements, each of which must be initialed by the minor:
(i) the minor understands that the physician or physician assistant is going to
perform an abortion on the minor and that the abortion will end the minor’s
pregnancy;
(ii) the minor is not being coerced into having an abortion, the minor has the
choice not to have the abortion, and the minor may withdraw consent at any
time prior to the abortion;
(iii) the minor consents to the procedure;
(iv) the minor understands the risks and hazards associated with the surgical
or medical procedures planned for the minor;
(v) the minor has been provided the opportunity to ask questions about the
pregnancy, alternative forms of treatment, the risk of nontreatment, the
procedures to be used, and the risks and hazards involved; and
(vi) the minor has sufficient information to give informed consent.
Section 50-20-505(3)(a)(i)-(vi), MCA.
¶9 The consent form must also include a parental consent statement that a parent or
legal guardian must sign which includes the following statements, each of which must be
initialed by the parent or legal guardian:
(i) the parent or legal guardian understands that the physician or physician
assistant who signed the physician declaration statement . . . is going to
perform an abortion on the minor that will end the minor’s pregnancy;
(ii) the parent or legal guardian had the opportunity to read the consent form
or had the opportunity to have the consent form read to the parent or legal
guardian;
(iii) the parent or legal guardian had the opportunity to ask questions of the
physician or physician assistant or the agent of the physician or physician
assistant regarding the information contained in the consent form and the
surgical and medical procedures to be performed on the minor;
(iv) the parent or legal guardian has been provided sufficient information to
give informed consent.
8
Section 50-20-505(3)(b)(i)-(iv), MCA.
¶10 The consent form must include a physician declaration that the physician or
physician assistant is required to sign, declaring that:
(i) the physician or physician assistant or the agent of the physician or
physician assistant explained the procedure and contents of the consent form
to the minor and a parent or legal guardian of the minor and answered any
questions; and
(ii) to the best of the physician’s or physician assistant’s knowledge, the
minor and a parent or legal guardian of the minor have been adequately
informed and have consented to the abortion.
Section 50-20-505(c)(i)-(ii), MCA.
¶11 The signature page of the consent form must be notarized, and it must include “an
acknowledgment by the parent or legal guardian affirming that the parent or legal guardian
is the minor’s parent or legal guardian.” Section 50-20-505(3)(d), MCA. A parent or legal
guardian must provide “government-issued proof of identity and written documentation
that establishes that the parent or legal guardian is the lawful parent or legal guardian of
the minor.” Section 50-20-506(1), MCA. A physician or physician assistant must “retain
the completed consent form and [accompanying documents] in the minor’s medical file for
5 years after the minor reaches 18 years of age, but in no event less than 7 years.” Section
50-20-506(2), MCA. “A physician or physician assistant receiving documentation under
this section shall execute for inclusion in the minor’s medical record an affidavit stating:
‘I, (insert name of physician or physician assistant), certify that according to my best
information and belief, a reasonable person under similar circumstances would rely on the
information presented by both the minor and the minor’s parent or legal guardian as
sufficient evidence of identity and relationship.’” Section 50-20-506(3), MCA.
9
¶12 Consent may be waived if the provider certifies in the minor’s medical record that
a medical emergency exists and there is insufficient time to provide consent, or it may be
waived by a parent in a notarized writing. Section 50-20-507, MCA. The Consent Act
provides that any person performing an abortion without notarized parental consent that
complies with the disclosure requirements in § 50-20-504, MCA, or that does not comply
with the form issued by the Department of Health and Human Services, “shall be fined an
amount not to exceed $1,000 or be imprisoned in the county jail for a term not to exceed 1
year, or both.” Section 50-20-510(1), MCA. “On a second or subsequent conviction, the
person shall be fined an amount not less than $500 or more than $50,000 and be imprisoned
in the state prison for a term of not less than 10 days or more than 5 years, or both.” Section
50-20-510(1), MCA. Further, the failure to obtain the required consent “is prima facie
evidence in an appropriate civil action for a violation of a professional obligation.” Section
50-20-510(2), MCA.
¶13 The Consent Act also contains what is colloquially referred to as a judicial bypass
procedure. Section 50-20-509, MCA. An unemancipated minor may petition the youth
court for a waiver of parental consent. The court must appoint counsel for the minor and
may additionally appoint a guardian ad litem. The minor must demonstrate that she is
competent to decide whether to have an abortion and that there is evidence of either
(1) physical abuse, sexual abuse, or emotional abuse of the minor by one or both parents
or legal guardian; or (2) it is not in the minor’s best interests to have parental consent. A
minor receiving an adverse ruling may appeal to this Court.
10
STANDARD OF REVIEW
¶14 This Court “review[s] an entry of summary judgment de novo.” McClue v. Safeco
Ins. Co., 2015 MT 222, ¶ 8,
380 Mont. 204,
354 P.3d 604 (citing Albert v. City of Billings,
2012 MT 159, ¶ 15,
365 Mont. 454,
282 P.3d 704). “Summary judgment is appropriate
when the moving party demonstrates both the absence of any genuine issues of material
fact and entitlement to judgment as a matter of law.” Albert, ¶ 15; M. R. Civ. P. 56(c)(3).
De novo review requires this Court to determine whether a district court’s conclusions of
law are correct and its findings of fact are not clearly erroneous. Pilgeram v. GreenPoint
Mortg. Funding, Inc.,
2013 MT 354, ¶ 9,
373 Mont. 1,
313 P.3d 839.
¶15 “This Court's review of constitutional questions is plenary.” Williams v. Bd. of
County Comm’rs,
2013 MT 243, ¶ 23,
371 Mont. 356,
308 P.3d 88. “A district court’s
resolution of an issue involving a question of constitutional law is a conclusion of law
which we review to determine whether the conclusion is correct.” Bryan v. Yellowstone
County Elem. Sch. Dist. No. 2,
2002 MT 264, ¶ 16,
312 Mont. 257,
60 P.3d 381.
¶16 Statutes are presumed to be constitutional, and we regard that presumed
constitutionality as a high burden to overcome. Hernandez v. Bd. of County Comm’rs,
2008 MT 251, ¶ 15,
345 Mont. 1,
189 P.3d 638 (citing Montanans for the Responsible Use
of the Sch. Tr. v. State ex rel. Bd. of Land Comm’rs,
1999 MT 263, ¶ 11,
296 Mont. 402,
989 P.2d 800). The challenging party bears the burden of proving the statute is
unconstitutional. Molnar v. Fox,
2013 MT 132, ¶ 49,
370 Mont. 238,
301 P.3d 824.
“Separately, we have also recognized that ‘legislation infringing the exercise of the right
of privacy must be reviewed under a strict-scrutiny analysis,’ which necessarily shifts the
11
burden to the State to demonstrate that the legislation is ‘justified by a compelling state
interest and [is] narrowly tailored to effectuate only that compelling interest.’” Weems,
¶ 34, quoting Armstrong, ¶ 34. “While the analysis of a statute pertaining to fundamental
rights will generally require a strict scrutiny review that ultimately shifts the burden, we
still begin our review with the same principle: statutes are presumed to be constitutional.”
Weems, ¶ 34.
DISCUSSION
¶17 The State argues that the Consent Act furthers the State’s interest in protecting
minors from sexual victimization by adult men, enhancing minors’ psychological and
physical wellbeing by having informed parents who can monitor post-abortion
complications and provide helpful medical history, and protecting minors from rash or
poorly reasoned decisions that often result from a minor’s underdeveloped
decision-making capacity. The State also argues that Parents have a fundamental right to
direct the care, custody, and control of their children. The State maintains that the Consent
Act’s judicial bypass provision adequately respects a minor’s right of privacy and access
to abortion.
¶18 Planned Parenthood maintains the Consent Act violates both the equal protection
and right of privacy clauses of the Montana Constitution. First, noting that the State did
not mention Armstrong or Weems in its opening brief, Planned Parenthood argues that this
Court has recognized in those decisions that every Montanan has a fundamental right of
privacy to seek abortion care from a qualified health care provider of her choosing, absent
clear demonstration by the State of a medically acknowledged, bona fide health risk.
12
Planned Parenthood further argues that the Consent Act creates two classes of minors—
those who seek abortions and those who choose to carry their pregnancies to term. Because
the Consent Act infringes upon a minor’s fundamental right to access abortion and the State
has not met its burden of demonstrating the Consent Act is narrowly tailored to meet one
or more of its compelling state interests, Planned Parenthood maintains the Consent Act is
an unconstitutional infringement of a minor’s rights of privacy and equal protection.
¶19 Resolving this dispute requires us to consider three constitutional provisions: (1) the
Rights of Persons Not Adults; (2) the Right of Privacy; and (3) the Equal Protection Clause.
Montana’s Constitution affords significantly broader protections than the federal
constitution. Weems, ¶ 35 (citing Gryczan v. State, 283 Mont. 433, 448,
942 P.2d 112, 121
(1997)). Two of the broader protections not found in the federal constitution implicated
here are the minors’ rights provision and the right of privacy. We address first the minors’
rights provision and right of privacy and then turn to the equal protection clause.
A. Rights of Persons Not Adults.
¶20 These proceedings involve the rights of minors. The United States Supreme Court
has explained:
Constitutional rights do not mature and come into being magically only when
one attains the state-defined age of majority. Minors, as well as adults, are
protected by the Constitution and possess constitutional rights.
Planned Parenthood v. Danforth, 428 U.S. 52, 74,
96 S. Ct. 2831, 2843 (1976). Montana
provides minors added assurance that they possess the same constitutional rights as adults
through our constitutional provision that specifically establishes minors possess the same
constitutional rights as adults. Further, that provision is contained within Article II—
13
Montana’s Declaration of Rights, a position within Montana’s constitutional framework
that establishes those rights Montana holds are fundamental.
¶21 Article II, Section 15, of the Montana Constitution, entitled Rights of Persons Not
Adults, states:
The rights of persons under 18 years of age shall include, but not be limited
to, all the fundamental rights of this Article unless specifically precluded by
laws which enhance the protection of such persons.
Thus, “[i]n contrast to the federal constitution, the Montana Constitution specifically
compares the rights of children with those of adults . . . [and] recognizes that the State’s
interest in protecting children may conflict with their fundamental rights.” In re C.H., 210
Mont. 184, 202,
683 P.2d 931, 940 (1984). We observed in In re C.H., that the comments
to the Bill of Rights Committee indicate an “intent to extend fundamental rights to children
and to afford constitutional protection to those rights with that one exception.” In re C.H.,
210 Mont. at 202,
683 P.2d at 940. The comments provide:
The committee adopted, with one dissenting vote, this statement explicitly
recognizing that persons under the age of majority have all the fundamental
rights of the Declaration of Rights. The only exceptions permitted to this
recognition are in cases in which rights are infringed by laws designed and
operating to enhance the protection for such persons. The committee took
this action of recognition of the fact that young people have not been held to
possess basic civil rights. Although it has been held that they are ‘persons’
under the due process clause of the Fourteenth Amendment, the Supreme
Court has not ruled in their favor under the equal protection clause of that
same amendment. What this means is that persons under the age of majority
have been accorded certain specific rights which are felt to be a part of due
process. However, the broad outline of the kinds of rights young people
possess does not yet exist. This is the crux of the committee proposal: To
recognize that persons under the age of majority have the same protections
from governmental and majoritarian abuses as do adults. In such cases
where the protection of the special status of minors demands it, exceptions
can be made on clear showing that such protection is being enhanced.
14
In re C.H., 210 Mont. at 202-03,
683 P.2d at 940 (quoting Committee Report, Vol. II,
634-36 (1971-72) (emphasis added)). We have, therefore, held that pursuant to Article II,
Section 15, “minors are afforded full recognition under the equal protection clause and
enjoy all the fundamental rights of an adult under Article II.” In re S.L.M.,
287 Mont. 23,
35,
951 P.2d 1365, 1373 (1997). See In re J.W.,
2021 MT 291, ¶ 23,
406 Mont. 224,
498
P.3d 211 (“Montana youths are constitutionally guaranteed the same fundamental rights as
adults.”). We have explained that “if the legislature seeks to carve exceptions to this
guarantee, it must not only show a compelling state interest but must also show that the
exception is designed to enhance the rights of minors.” S.L.M.,
287 Mont. at 35,
951 P.2d
at 1373. We clarify today, however, that minors do not have more or enhanced rights in
comparison to adults; rather, Article II, Section 15 provides that minors have the same
fundamental rights as adults under Article II, which may be infringed only when the State
can clearly show a compelling state interest “which enhance[s] the protection of such
persons.” Article II, Section 15 (emphasis added). In S.L.M., we stated that the legislature
must not only show a compelling state interest “but must also show that the exception is
designed to enhance the rights of minors.” S.L.M.,
287 Mont. at 35,
951 P.2d at 1373. This
was incorrect because the demonstration that is required is the enhancement of the
protections provided minors, not rights. We therefore repudiate our statement without
otherwise disturbing the holding in S.L.M. Thus, as explained by the Bill of Rights
Committee, “persons under the age of majority have all the fundamental rights of the
Declaration of Rights. The only exceptions permitted to [t]his recognition are in cases in
15
which rights are infringed by laws designed and operating to enhance the protection for
such persons.” In re C.H., 210 Mont. at 202,
683 P.2d at 940 (quoting Committee Report,
Vo. II, 634-36). That, in turn, requires a “clear showing that such protection is being
enhanced.” In re C.H.,
210 Mont. at 203,
683 P.2d at 940.
B. A Minor’s Right to Privacy.
¶22 The right of privacy is explicitly guaranteed in Montana’s Constitution and is a
fundamental right. Article II, Section 10, of the Montana Constitution provides:
Right of Privacy. The right of individual privacy is essential to the
well-being of a free society and shall not be infringed without the showing
of a compelling state interest.
In both Armstrong and Weems, we acknowledged the expansiveness of the right of privacy
in Montana’s Constitution:
[I]t is clear from their debates that the delegates intended this right of privacy
to be expansive—that it should encompass more than traditional search and
seizure. The right of privacy should also address information gathering and
protect citizens from illegal private action and from legislation and
governmental practices that interfere with the autonomy of each individual
to make decisions in matters generally considered private.
Weems, ¶ 35; Armstrong, ¶ 33. “[U]nder Montana’s Constitution, the right of individual
privacy—that is, the right of personal autonomy or the right to be let alone—is
fundamental.” Gryczan, 283 Mont. at 455,
942 P.2d at 125; Weems, ¶ 36. “It is, perhaps,
one of the most important rights guaranteed to the citizens of this State, and its separate
textual protection in our Constitution reflects Montanans’ historical abhorrence and distrust
of excessive governmental interference in their personal lives.” Gryczan,
283 Mont. at
455,
942 P.2d at 125; Weems, ¶ 36. The Montana Constitution guarantees each individual
16
the right to make medical judgments affecting her or his bodily integrity and health, in
partnership with a chosen health care provider free from governmental interference. The
right of privacy contained in the Montana Constitution protects a woman’s right to
procreative autonomy. Weems, ¶ 36; Armstrong, ¶ 14. “Decisions about whom to trust
with ‘intimate invasions of body and psyche,’ such as those involved in health care, must
be the individual’s decision, and state regulation must be based on protecting citizens from
actual health risks.” Weems, ¶ 37 (citing Armstrong, ¶¶ 58-59).
¶23 Not every restriction on the provision of medical care impermissibly infringes on
the right to privacy. We have explained that the right of privacy to make health care choices
guarantees access to a health care provider who has been determined competent by the
medical community and licensed to perform the service. Wiser v. State, 2006 MT 20, ¶ 16,
331 Mont. 28,
129 P.3d 133. Similarly, we explained in Montana Cannabis Industry Ass’n
v. State,
2012 MT 201,
366 Mont. 224,
286 P.3d 1161 (MCIA), that the right of privacy
does not include an affirmative right of access under “the new medical marijuana
framework” because plaintiffs, there, could not “seriously contend that they have a
fundamental right to medical marijuana when it is still unequivocally illegal under the
Controlled Substances Act.” MCIA, ¶ 32.
¶24 We conclude that minors, like adults, have a fundamental right to privacy, which
includes procreative autonomy and making medical decisions affecting his or her bodily
integrity and health in partnership with a chosen health care provider free from
governmental interest. Weems, ¶ 36, Armstrong, ¶ 14. Decisions about “intimate invasions
of body and psyche” must be an individual’s decision, in this case, a minor’s decision.
17
Weems, ¶ 37, Armstrong, ¶¶ 58-59. 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.
¶25 Since the right of privacy is explicit in the Declaration of Rights, it is a fundamental
right. For this reason, legislation infringing the exercise of the right of privacy must be
reviewed under a strict scrutiny analysis; that is, “the legislation must be justified by a
compelling state interest and must be narrowly tailored to effectuate only that compelling
interest.” Armstrong, ¶ 34; Gryczan, 283 Mont. at 449,
942 P.2d at 122. Applying strict
scrutiny necessarily requires that the burden shift to the State to demonstrate, first, that the
legislation is justified by a compelling state interest. Weems, ¶ 34. Second, the State must
demonstrate that the legislation is narrowly tailored to effectuate only that compelling
interest. Finally, the State must make a “clear showing that [a minor’s] protection is being
enhanced.” In re C.H.,
210 Mont. at 203,
683 P.2d at 940. Mindful that statutes are
presumed constitutional, and before turning to whether the State has met its burden to show
justification for a limitation on a minor’s right of privacy, we consider the equal protection
clause within the context of a minor’s right of privacy and the minors’ rights provision.
C. A Minor’s Right to Equal Protection.
¶26 Pursuant to the Fourteenth Amendment to the United States Constitution, and
Article II, Section 4, of the Montana Constitution, no person shall be denied equal
protection of the laws. The guarantee of equal protection is a fundamental right contained
in Article II which extends to minors by virtue of Article II, Section 15, “The basic rule of
18
equal protection is that persons similarly situated with respect to a legitimate governmental
purpose of the law must receive like treatment.” Goble v. Mont. State Fund, 2014 MT 99,
¶ 28,
374 Mont. 453,
325 P.3d 1211 (quoting Rausch v. State Comp. Ins. Fund,
2005 MT
140, ¶ 18,
327 Mont. 272,
114 P.3d 192). “When analyzing an equal protection claim, the
Court follows a three-step process: (1) identify the classes involved and determine if they
are similarly situated; (2) determine the appropriate level of scrutiny to apply to the
challenged legislation; and (3) apply the appropriate level of scrutiny to the challenged
statute.” Goble, ¶ 28.
¶27 We must first identify the classes involved and determine whether they are similarly
situated. In re C.H.,
210 Mont. at 198,
683 P.2d at 938. “The goal of identifying a similarly
situated class is to isolate the factor allegedly subject to impermissible discrimination.”
Goble, ¶ 29. It is necessary for a similarly situated class to be identified because
“[d]iscrimination cannot exist in a vacuum; it can be found only in the unequal treatment
of people in similar circumstances.” Goble, ¶ 29 (quoting Freeman v. City of Santa Ana,
68 F.3d 1180, 1187 (9th Cir. 1995)). Thus, two groups are similarly situated if they are
equivalent in all relevant respects other than the factor (here, the Consent Act) constituting
the alleged discrimination. Goble, ¶ 29. See Snetsinger v. Mont. Univ. Sys.,
2004 MT 390,
¶ 27,
325 Mont. 148,
104 P.3d 445; Oberson v. USDA,
2007 MT 293, ¶¶ 19-20,
339 Mont.
519,
171 P.3d 715.4
4
A plaintiff also may bring a “class of one” equal protection claim, not applicable here. “Briefly
stated, when ‘state action does not implicate a fundamental right or a suspect classification, the
plaintiff can establish a class of one equal protection claim by demonstrating that it has been
intentionally treated differently from others similarly situated and that there is no rational basis for
19
¶28 Planned Parenthood maintains, and we agree, that the Consent Act creates a class
of pregnant minors who want to obtain an abortion and a class of pregnant minors who do
not want an abortion. For purposes of an equal protection analysis, both classes are
composed of persons who are similarly situated for equal protection purposes—minors
who are pregnant. Here, the classification discriminates against minors who choose a
particular type of medical care—an abortion—because the Consent Act applies only to
them; it infringes upon only those minors who choose to exercise their fundamental right
to make medical judgments about their body in conjunction with a chosen health care
provider absent governmental interference. Thus, the factor needing to be isolated is the
Consent Act. We acknowledge there are perhaps other classifications which could indicate
a minor’s right to equal protection was violated by the Consent Act. However, here, the
salient classification relates to the unavailability, unless a parent consents, of medical care
which presents no bona fide health risk to minors. The unavailability of medical care to
minors seeking an abortion unless they have parental consent and the availability of
medical care to minors carrying their pregnancy to term without parental consent is the
primary distinguishing feature of the Consent Act.
¶29 The second step in addressing an equal protection claim is determining the
appropriate level of scrutiny to apply to the challenged legislation. If the legislation in
question infringes upon a fundamental right, we must apply strict scrutiny. S.L.M., 287
Mont. at 32,
951 P.2d at 1371. We have already determined that the Consent Act infringes
the difference in treatment.’” B.Y.O.B., Inc. v. State,
2021 MT 191, ¶ 38,
405 Mont. 88,
493 P.3d
318 (citations omitted).
20
on a minor’s fundamental right of privacy. Minors, including pregnant minors, have a
fundamental right of personal autonomy. Once a fundamental right is implicated, we must
apply a strict scrutiny analysis to determine whether the State has met is burden of
demonstrating a compelling state interest sufficient to justify its unequal treatment of a
class and whether the Consent Act is narrowly tailored to effectuate only that compelling
interest. S.L.M., 287 Mont. at 34,
951 P.2d at 1372. We also must determine, as with the
right of privacy, whether such an infringement is consistent with the mandates of Article
II, Section 15, that it enhance the protection of minors. Here, the classification
discriminates against minors who choose to have an abortion because only they have their
right to privacy infringed. Clearly under Article II, Section 15, minors are afforded full
recognition under the equal protection clause and enjoy all the fundamental rights of an
adult under Article II, including the right of privacy. Thus, if the legislature seeks to carve
out exceptions to the guarantee of equal protection, it must not only show a compelling
state interest but must also show that the exception is designed to enhance the protections
of minors.
D. Application of Strict Scrutiny to a Minor’s Rights of Privacy and Equal
Protection.
¶30 The State proposes four compelling interests that justify the Consent Act: (1)
protecting minors from sexual victimization; (2) protecting minors’ psychological and
physical wellbeing, (3) protecting minors from their own immaturity, and (4) promoting
parental rights. Although not all the State’s asserted compelling interests involve a
medically acknowledged, bona fide health risk, the State continues to assert that abortion
21
is “fraught with major psychological, medical, and safety implications”; “[a]bortion is an
invasive surgical procedure with serious medical risks . . . that include perforation or
damage to the uterus, cervix, or another nearby organ; excessive bleeding or hemorrhage,
requiring blood transfusion; infection introduced into the uterus from the cervix or vagina;
and ‘incomplete abortion.’” To the extent any of the State’s compelling interests are
premised upon a contention that abortion care presents a medical health risk, we may easily
dispose of such a contention by relying on Weems. We begin by noting several of our
conclusions in Weems that abortion care is safe and presents relatively minimal health risk
and, in doing so, dispose of any of the State’s claimed compelling state interests which
might be premised upon abortion care presenting a medically acknowledged, bona fide
health risk.
¶31 In Weems we considered whether limiting access to abortion care by preventing
Advanced Practice Registered Nurses (APRNs) from performing abortions violated a
person’s fundamental right to access abortion care guaranteed by Montana’s constitutional
right of privacy. In concluding such a limitation was unconstitutional, we said the
following about whether abortion care presented a medically acknowledged, bona fide
health risk:
The record is devoid of any evidence that APRNs providing abortion care
present a medically acknowledged, bona fide health risk to Montana women.
The State’s argument is detached from the overwhelming evidence presented
to the District Court that abortion care is one of the safest forms of medical
care in this country and the world, and that APRNs are qualified providers.
The State’s reasoning rests on a faulty foundation: it puts aspiration abortions
in the category of “surgery” because “instruments” are used to remove
“human tissue”; because an aspiration abortion is “surgery” it has all the
attendant risks of surgery—hemorrhaging, infection, post-operative care, and
22
monitoring; because abortion is “surgery” it should not be treated any
differently than other elective surgery, which occurs in a clinic or hospital;
because it is surgery it is not safe unless done where emergency backup is in
place and where clinicians who can perform “surgery” are present. This
reasoning would exclude APRNs from performing abortion care because, as
the State posits, post-abortion care might be beyond what APRNs are capable
of handling or authorized to do. Finally, at oral argument, the State
represented that APRNs also should not perform medication abortions
because complications from a medication abortion could lead to surgery.
Therefore, according to the State, APRNs would not be authorized to
dispense mifepristone or misoprostol.
. . .
The overwhelming evidence amassed in the District Court record established
that abortion care is one of the safest procedures in this country and the
world. Complication rates from abortion are similar to or lower than other
outpatient procedures. When complications do occur, they are usually minor
and easily treatable—normally at home or in an outpatient setting. Abortions
remain one of the safest procedures when performed collectively by health
care providers, including APRNs.
Weems, ¶¶ 46, 48. The State has failed entirely to address Weems; indeed, the State has
not mentioned Weems and this Court’s conclusions and analysis in any of its briefing,
despite Weems being significant precedent for resolving this challenge.5 Further, there is
nothing in the record in these proceedings produced by the State which differs materially
from the record evidence in Weems or demonstrates that abortions present a medically
acknowledged, bona fide health risk. Having disposed of any compelling state interest
which might relate to protecting individuals from a medically acknowledged, bona fide
health risk, we now turn to some of the other arguments the State makes to justify the
Consent Act.
5
We note the State made only a passing reference to Armstrong in its Reply Brief.
23
1. Protecting Minors from Sexual Victimization.
¶32 Citing New York v. Ferber, 458 U.S. 747, 757,
102 S. Ct. 3348, 3354 (1982), the
District Court concluded the State correctly identified the protection of children from
sexual exploitation and abuse as a compelling state interest. However, as the District Court
also noted, “[t]he State must do more, however, than cite a compelling state interest: it
must demonstrate that the Consent Act is ‘necessary to promote’ this compelling state
interest.” Driscoll v. Stapleton,
2020 MT 247, ¶ 18,
401 Mont. 405,
473 P.3d 386. Under
strict scrutiny, the means chosen to accomplish the State’s asserted purpose must be
specifically and narrowly framed to accomplish that purpose. Wygant v. Jackson Bd. of
Educ.,
476 U.S. 267, 280,
106 S. Ct. 1842, 1850 (1986). “A statute is not narrowly tailored
if it is either underinclusive or overinclusive in scope.” IMDb.com Inc. v. Becerra,
962
F.3d 1111, 1125 (9th Cir. 2020). The District Court had no difficulty determining the
Consent Act was not narrowly tailored to achieve the compelling state interest of protecting
minors from sexual victimization. We agree.
¶33 In Montana, minors under the age of 18 but older than 16 may consent to sexual
intercourse. Section 45-5-501(1)(b)(iv), MCA. Thus, many minors who seek abortions
will be over 16 years of age because they are the ones lawfully allowed to consent, are
nearer emancipation, and may be more likely to engage in consensual sexual intercourse.
The State, however, presented little specific evidence relative to this large population of
minors affected by the Consent Act. Further, the State has failed to logically connect and
justify how the Consent Act prevents victimization of minors even when teen pregnancy is
the product of an assault. All the Consent Act does is permit the parent to refuse consent
24
to a pregnancy that has already occurred. Thus, the Consent Act does not accomplish the
State’s asserted purpose of preventing the victimization of children from sexual assault and
does not make it more likely that the sexual crime will be detected and punished.
¶34 This becomes more apparent when we assess the Consent Act within the context of
other measures more specifically and aptly designed to enhance the protection of children.
Montana has a mandatory reporting law that requires medical providers to promptly report
any sexual abuse they know or suspect to be occurring. Section 41-3-201, MCA. A
provider’s violation of the mandatory reporting law can result in civil liability and criminal
sanctions of up to five years in prison and $10,000 in fines. Section 41-2-207(3), MCA.
As noted by the District Court, whether the Consent Act is in effect or not, providers must
report evidence of sexual abuse to the State. The record is devoid of any evidence that the
Consent Act provides enhanced protection over mandatory reporting laws, especially given
that (1) some minors are being abused by their parents, and (2) a judicial waiver under the
Consent Act does not require reporting.
¶35 The Consent Act’s imposition of onerous and burdensome requirements designed
to prevent evasion of the parental consent requirement by requiring notarization,
government identification, proof of parentage, and a physician affidavit do not
meaningfully assist in the prevention of sexual victimization of minors nor do they prevent
the evasion of parental notice requirements. Mandatory reporting laws are an example of
legislation that does advance the State’s compelling interest of protecting minors from
victimization. On this record, the State has failed to “clearly and convincingly”
demonstrate that the Consent Act is narrowly tailored to serve only the State’s compelling
25
interest of protecting minors from sexual abuse and exploitation. Weems, ¶ 45; Armstrong,
¶ 62; In re C.H., 210 Mont. at 202,
683 P.2d at 940.
2. Protecting Minors’ Psychological and Physical Wellbeing.
¶36 The State contends that the Consent Act will ensure that, if a minor has an abortion,
a parent or someone will be there to monitor for post-abortion complications and mental
health trauma. States have an undisputed, compelling interest in “safeguarding the physical
and psychological wellbeing of a minor.” Osborne v. Ohio, 495 U.S. 103, 109,
110 S. Ct.
1691, 1696 (1990). The question, though, is whether the Consent Act is narrowly tailored
to serve the State’s compelling interest.
¶37 As we recognized in Weems, “abortion care is exceedingly safe” and “is one of the
safest forms of medical care in this country and the world.” Weems, ¶¶ 1, 46. Abortion
care does not present a medically acknowledged, bona fide health risk to minors or adult
women, and the State has not offered clear and convincing evidence in this case that minor
patients are not treated for complications when they occur or that minors fail to follow-up
on post-abortion care. We also held in Weems that the evidence overwhelmingly
demonstrated delaying access to abortion care—as compliance with the onerous
procedures of the Consent Act would cause, particularly in rural areas—increases the risk
of abortion care and could foreclose the option of obtaining an abortion altogether. Weems,
¶ 43. The State has not presented any evidence that refutes this.
¶38 The American Medical Association and the American Academy of Pediatrics, and
other medical organizations, are opposed to parental consent laws. They have concluded
that forced parental involvement is more likely to deter minors from seeking care and has
26
no medically valid purpose. These medical organizations cite recent long term studies that
have found those who obtained wanted abortions had a similar or better mental health
outcome than those who were denied a wanted abortion. Moreover, the evidence
establishes that receiving an abortion does not increase the likelihood of developing
symptoms associated with depression, anxiety, post-traumatic stress, or suicidal ideation,
compared to those who continue a pregnancy. See Planned Parenthood of Cent. N.J. v.
Farmer, 762 A.2d 620, 636 (N.J. 2000) (“[Y]oung women do not suffer greater
psychological problems than the young women who carry their pregnancies to term.”)
Importantly, requiring parental consent allows parents to prevent the abortion from ever
taking place, but it does not require the parent to provide any assistance, support, medical
care, counseling, or monitoring for a minor who has chosen to obtain an abortion. Nor is
it inevitable that a parent who consents to an abortion will provide such help.
¶39 The abortion decision differs in many ways from other decisions that may be made
during minority. As the District Court explained, “the means by which a woman’s body
nurtures and develops an embryo into a human child with which she will have a lifelong
bond—is unique among all medical conditions,” as is the decision to terminate a
pregnancy.
[T]he decision whether to continue or terminate her pregnancy has . . . a
substantial effect on a pregnant minor’s control over her personal bodily
integrity, has . . . serious long-term consequences in determining her life
choices, is . . . central to the preservation of her ability to define and adhere
to her ultimate values regarding the meaning of human existence and life,
and (unlike many other choices) is a decision that cannot be postponed until
adulthood.
27
American Academy of Pediatrics v. Lungren, 16 Cal. 4th 307, 337,
940 P.2d 797, 816
(1997) (emphasis in original). There are few situations in which denying a minor the right
to make an important decision will have consequences so grave, permanent, and indelible.
It is difficult to conceive of any reason, aside from a judge’s personal
opposition to abortion, that would justify a finding that an immature
woman’s best interests would be served by forcing her to endure pregnancy
and childbirth against her will.
Hodgson v. Minnesota, 497 U.S. 417, 475,
110 S. Ct. 2926, 2958 (1990) (Marshall, J.,
concurring in part and dissenting in part).
¶40 The Consent Act is not narrowly drawn to serve the purpose of monitoring mental
health trauma or post-abortion complications.
3. Protecting Minors from Their Own Immaturity.
¶41 The State asserts that it has a compelling interest in protecting minors from their
own immaturity and that minors engage in fully informed decision-making. We agree.
The State has a special, indeed compelling, interest in the health, safety, and welfare of its
minor citizens.
¶42 Although recognizing the State’s compelling interest, we are nonetheless tasked
with deciding whether the Consent Act narrowly effectuates that interest. Here, the
weakness in the State’s argument is that the Consent Act singles out only minors seeking
an abortion, and not those who choose to carry their pregnancies to term. The State’s
argument is illogical: minors who choose to carry their pregnancies are not at risk of
making an immature decision, while those choosing abortion must be protected against
their immaturity. In Montana, minors are empowered to consent to various
28
parenting-related services without their own parents’ or guardians’ consent—including the
“prevention, diagnosis, and treatment” of pregnancy. Section 41-1-402(2)(c), MCA.
While the Consent Act prevents a minor from obtaining an abortion without parental
consent, contrarily, a minor “has the right to relinquish all rights to that minor parent’s
child and to consent to the child’s adoption” without obtaining parental consent. Section
42-2-405(1), MCA. Minors can consent to many types of health care, including
pregnancy-related care, but abortion is singled out.6
It is particularly difficult to reconcile defendants’ contention—that parental
or judicial involvement in the abortion decision is necessary to protect a
minor’s emotional or psychological health—with . . . statutory provisions
authorizing a minor who has given birth to consent, on her own, to the
adoption of her child. The decision to relinquish motherhood after giving
birth would seem to have at least as great a potential to cause long-lasting
sadness and regret as the decision not to bear a child in the first place.
Lungren, 16 Cal. 4th at 353,
940 P.2d at 827 (citations omitted).
¶43 The Consent Act bestows upon parents what has been described as a “veto power”
over their minor’s abortion decisions, effectively shifting a portion of the minor’s
fundamental right to parents. State v. Planned Parenthood of Alaska,
171 P.3d 577, 583,
2007 Alas. LEXIS 141,**17. “In practice, under the [Consent Act] it is no longer the
pregnant minor who ultimately chooses to exercise her right to terminate her pregnancy,
but that minor’s parents. And it is this shifting of the locus of choice—this relocation of a
6
Though the State refers to other statutes that require a parent’s consent or involvement, the
relevant inquiry here are the statutes pertaining to a minor’s decisions when the minor occupies
the position of parent or prospective parent.
29
fundamental right from minors to parents—that is constitutionally suspect.” Planned
Parenthood of Alaska, 171 P.3d at 583.
¶44 Importantly, the District Court held:
The problem with the Consent Act is that it does not provide minors with
resources, counseling, and guidance to help them navigate this choice; rather
(except in cases of a granted judicial bypass or other exception), it takes the
choice away from them, giving it instead to their parent or guardian. The
various consent forms required by the Consent Act do assure that a
discussion takes place about the risks of the abortion, but the discussion
called for by the consent forms is unidirectional: it does not include anything
requiring a discussion about the consequences and risks of carrying a
pregnancy to term, consequences that will vary from case to case based on
the circumstances of the expectant mother. Thus, the required form does not
ensure that parent and child are provided with the pros and cons of both
abortion and carrying a child to term to make a fully informed decision;
rather, the form assures only that they have been provided with one side of
one possible decision: the “risks and hazards” of an abortion.
The Consent Act “guarantees no more than a one-way conversation and ‘allows parents to
refuse consent not only where their judgment is better informed and considered than that
of their daughter, but also where it is colored by personal religious belief, whim, or even
hostility to her best interests.’” Planned Parenthood of Alaska, 171 P.3d at 585.
¶45 Given these considerations, we conclude the Consent Act is not narrowly tailored
to advance only the compelling purpose of protecting minors from their immaturity.
4. Promoting Parental Rights.
¶46 The State argues the Consent Act “protects parents’ long-recognized fundamental
rights in the custody, care, and control of their children.” Parents do have a fundamental
right to parent. Troxel v. Granville, 530 U.S. 57,
120 S. Ct. 2054 (2000). As the District
Court held, the promotion of healthy families is undoubtedly a compelling state interest.
30
But not all families are healthy, and the Consent Act empowers parents who do not make
decisions in their children’s best interest to control an important fundamental right of their
child. The consent requirement empowers the parent to take the decision about whether to
have an abortion or carry the child from the minor and goes far beyond merely facilitating
family involvement and guidance, and potentially establishes conflict within the family
unit.
¶47 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. Such veto power is unlikely to enhance parental
control or strengthen the family unit where the minor and nonconsenting adult are
obviously in conflict and the family structure is fractured, even beyond the existence of the
mere pregnancy itself. Where a minor seeks an abortion and that decision is vetoed by a
parent, the family fundamentally is in conflict.
¶48 The State’s parental rights argument is unpersuasive given the minor’s own
fundamental right of privacy and because the minors’ rights provision expressly affirms
the rights of minors except when necessary to enhance a minor’s own protection—not the
protection of a parent. Further, any parental right that exists within this framework is a
right to parent free from state interference, not a right to enlist the state’s powers to gain
greater control over a child or to make it more difficult for a minor to exercise their
fundamental rights. See Farmer, 762 A.2d at 638 (The State may not interfere with a
parent’s upbringing of a child, but it does not follow from such a proposition that parents
31
have a right to enlist state support to prevent or even be informed about a child’s exercise
of her own constitutionally protected rights.)
¶49 Based on the foregoing, we conclude the Consent Act burdens a minors’
fundamental right of privacy and creates a classification between minors who choose an
abortion and those choosing to carry their pregnancy to term. Only minors who choose an
abortion have their right of privacy infringed. We further conclude the State has failed to
present adequate justification, supported by clear and convincing evidence, that the
Consent Act is narrowly tailored to further only a compelling state interest in the protection
of minors.
¶50 The evidence establishes, with no genuine dispute of fact, that abortion care is one
of the safest forms of medical care available in this country and the world. Medical risks
for abortion are considerably lower than for pregnancy and childbirth, and, in general,
adolescents show no substantial psychological effects from abortion. The consequences of
not being able to terminate an unwanted pregnancy can be decidedly more traumatic and
severe than for obtaining an abortion. Adolescent mothers may not be able to complete
high school and will remain dependent on family, a partner, and unable to take care of
themselves. Adolescent mothers who choose to continue their pregnancy are free to do so
without any requirement of parental consent. But the minor who is presumed by the
Consent Act to be too immature to decide about having an abortion will, if she continues
her pregnancy, become the mother of an infant, fully responsible for the infant’s life and
for decisions about infant’s medical care and upbringing.
32
E. Judicial Waiver.
¶51 The State attempts to save the Consent Act by arguing that the judicial waiver
provision “guarantees that any minor who should obtain an abortion without parental
oversight can do so.” However, the judicial waiver provision cannot remedy the maladies
of the Consent Act, which is not narrowly tailored to accomplish a compelling State
interest, because the provision, itself, singles out minors who choose to have an abortion
and introduces unnecessary stress, delay, and potential increase in the risk of abortion and
inability to obtain an abortion altogether. The judicial waiver provision will introduce
delay into the decision of whether to obtain an abortion, which could increase the chances
of having to obtain an abortion later in pregnancy and thus, increase the possibility that a
minor may not be able to receive a safe and legal abortion. The necessary process to obtain
a judicial waiver forces delay in care which can increase stress and cost—especially if
delay takes a more affordable option, such as medication assisted abortion, off the table.
¶52 As discussed, minors have a fundamental right to privacy and equal protection. In
complete contravention of these rights, the judicial waiver procedure requires a minor to
file a petition disclosing her private medical information––her pregnancy––to appear in
court and subject herself and her competency to the scrutiny of strangers. It requires the
minor to tell multiple people––the judge, her attorney (if any), court personnel––very
personal details about her life and to be questioned about deeply personal matters. Thus,
forcing minors to go to court to access abortion care compromises a minor’s fundamental
right to privacy––which includes the right to make medical judgments in partnership with
a chosen health care professional free from governmental interference.
33
¶53 For minors who seek an abortion but choose not to seek parental consent, the judicial
waiver vests a different adult––the judge, rather than the parent––with veto power. A
similar veto power does not exist for a minor who decides to continue, rather than
terminate, her pregnancy––these minors retain their privacy, including the right to
procreative autonomy.
¶54 The legal system is intimidating, confusing, and difficult to access, even for those
who have legal representation and do not have time-sensitive legal problems. These
complications are made worse for those with time-sensitive medical conditions who begin
the process without counsel. Even if a minor obtains accurate information as to the
process––which is certainly not guaranteed––the minor faces other hurdles such as missing
school, work, and other activities; lack of transportation, legal counsel, and financial
resources; and taking time to prepare and file a judicial waiver petition, appear in court,
and adequately present her position. Minors with the least financial resources and the
greatest access impediments, face greater challenges in seeking a timely judicial waiver.
These financial and logistical barriers may be even more pronounced for indigenous and
marginalized people.
¶55 The judicial waiver provision thus cannot save the Consent Act, a statute which
infringes upon a minor’s fundamental right and is not narrowly tailored to serve a
compelling state interest. There is no state interest that the judicial waiver provision serves
other than attempting to save the Consent Act. We conclude that the judicial waiver
provision of the Consent Act does not enhance protections for minors who choose to
34
exercise their right to obtain an abortion; rather, it delays their access to medical care which
we have determined they have a constitutional right to obtain.
CONCLUSION
¶56 The Consent Act conditions a minor’s right to obtain an abortion on parental
consent unless a judicial waiver is obtained. It imposes no corresponding limitation on a
minor who seeks medical or surgical care otherwise related to her pregnancy or her child.
The State responds that its substantial interests in protecting minors from victimization,
protecting minors’ psychological and physical wellbeing, protecting minors from their own
immaturity, and promoting the rights of parents to raise their children justify this
differential treatment and the infringement on a minor’s right of privacy. We decide today
that the classification created by the Legislature violates the fundamental right of a minor
to control their body and destiny, Armstrong v. State, 1999 MT 261,
296 Mont. 361,
989
P.2d 364, and Weems v. State,
2023 MT 82,
412 Mont. 132,
529 P.3d 798, without adequate
justification from the State, and cannot be sustained against Plaintiffs’ privacy and equal
protection challenges. Further, we conclude that the Consent Act does not enhance the
protection of minors under Article II, Section 15, of the Montana Constitution. We
emphasize that our decision is not based on, nor do we presume to answer, the profound
questions about the moral, medical, and societal implications of abortion. At the end of
the day, those questions are left to the woman who must decide for herself. We also
acknowledge that the State has a substantial interest in preserving the family, protecting
minors, and protecting the rights of parents to raise their children. However, when weighed
against the right of a minor to make the most intimate and personal decision of whether to
35
carry a child to term, the interests expressed by the State must be furthered by and
substantially related to the legislation itself, and the legislation must be narrowly tailored
to meet only those legitimate legislative goals. A minor’s right to dignity, autonomy, and
the right to choose are embedded in the liberties found in the Montana Constitution.
Because a minor’s right to control her reproductive decisions is among the most
fundamental of the rights she possesses, 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.
/S/ LAURIE McKINNON
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ INGRID GUSTAFSON
/S/ DIRK M. SANDEFUR
/S/ BETH BAKER
/S/ ELIZABETH A. BEST
District Court Judge Elizabeth A. Best
Sitting for Chief Justice Mike McGrath
Justice Jim Rice, specially concurring.
¶57 I concur with the ultimate holdings of the Court, including the holding that the
Consent Act fails to sustain strict scrutiny review and thus violates Plaintiffs’ right to
privacy under Article II, Section 10, of the Montana Constitution, which the Constitution
extends to minors. See Mont. Const. Art. II, § 15; Matter of J.W., 2021 MT 291, ¶ 23,
406
Mont. 224,
498 P.3d 211; In re C.H.,
210 Mont. 184, 202,
683 P.2d 931, 940 (1984). I also
36
agree that the Consent Act violates equal protection, but I disagree with the analysis
employed by the Court in that regard, and I write separately to address several concerns.
¶58 First, the Court mentions the long delay that occurred in this case because of “a
lengthy series of judicial substitutions, recusals, and retirements.” Opinion, ¶ 4. These
occurrences do not excuse the judiciary’s failure to address this case in a timely fashion.
The District Court was forthcoming about the problem, detailing the processing turns and
presiding judge turnovers that resulted in this case being passed along like a hot potato and
delaying resolution for almost eight years after this Court’s remand in 2015. The District
Court acknowledged that “the case went dark” despite the multiple submission notices the
State filed to remind presiding judges about the need for resolution. I appreciate Judge
Abbott’s diligence when the case finally landed on his court’s doorstep, but, overall, the
judiciary’s handling of this case was unacceptable. While perhaps no single individual or
court bears all the blame, the public’s confidence in the judiciary rests on the expectation
that the courts will faithfully execute judicial duties. The public deserves better than what
occurred in this case, and courts must do better.
¶59 I agree with the Court’s effort to clarify our prior holding in In re S.L.M., 287 Mont.
23,
951 P.2d 1365 (1997). The Court first states, in regard to Article II, Section 15, of the
Montana Constitution, that “minors do not have more or enhanced rights in comparison to
adults.” Opinion, ¶ 21 (emphasis in original). In In re S.L.M., we had stated:
Clearly under Article II, Section 15, minors are afforded full recognition
under the equal protection clause and enjoy all the fundamental rights of an
adult under Article II. Furthermore, if the legislature seeks to carve
exceptions to this guarantee, it must not only show a compelling state interest
37
but must also show that the exception is designed to enhance the rights of
minors.
In re S.L.M., 287 Mont. at 25,
951 P.2d at 1373 (emphasis added). Notably, the District
Court cited this language and relied upon it. However, the holding is clearly contrary to
the plain language of Article II, Section 15, which states that “persons under 18 years of
age” are entitled to the fundamental rights set forth in Article II “unless specifically
precluded by laws which enhance the protections of such persons.” Thus, without engaging
in a full analysis of the point, I concur with the Court’s statement in Footnote 3 that
In re S.L.M.’s holding in this regard “was incorrect” and is “repudiate[d],” such that it
should not be cited or relied upon in the future.
¶60 Turning to the equal protection issue, I would not, as a threshold matter, reach this
issue because the Court is already declaring the Consent Act to be unconstitutional on the
basis of the right to privacy under Article II, Section 10 of the Montana Constitution, and
it is thus unnecessary to the outcome of the challenge to the Act for the Court to reach and
address an additional constitutional issue. “[C]ourts should avoid constitutional issues
whenever possible.” 350 Mont. v. State,
2023 MT 87, ¶ 25,
412 Mont. 273,
529 P.3d 847;
State v. Johnson,
2023 MT 143, ¶ 8 n.1,
413 Mont. 114,
533 P.3d 335.1 However, out of
1
See also Dobbs v. Jackson Women’s Health Org.,
142 S. Ct. 2228, 2313 (2022) (Roberts, C.J.,
concurring) (“Following that ‘fundamental principle of judicial restraint’ . . . we should begin with
the narrowest basis for disposition, proceeding to consider a broader one only if necessary to
resolve the case at hand. See, e.g., Office of Personnel Management v. Richmond,
496 U.S. 414,
423,
110 S. Ct. 2465,
110 L. Ed. 2d 387 (1990). It is only where there is no valid narrower ground
of decision that we should go on to address a broader issue . . . . See Federal Election Comm’n v.
Wisconsin Right to Life, Inc.,
551 U.S. 449, 482,
127 S. Ct. 2652,
168 L. Ed. 2d 329 (2007)
(declining to address the claim that a constitutional decision should be overruled when the
appellant prevailed on its narrower constitutional argument.)”).
38
a concern regarding the Court’s equal protection analysis for purposes of our future
jurisprudence, I will address the merits.
¶61 The Court explains that we analyze equal protection claims in a three-step process:
“(1) identify the classes involved and determine if they are similarly situated; (2) determine
the appropriate level of scrutiny to apply to the challenged legislation; and (3) apply the
appropriate level of scrutiny to the challenged statute.” Opinion, ¶ 26 (quoting Goble v.
Mont. State Fund, 2014 MT 99, ¶ 28,
374 Mont. 453,
325 P.3d 1211); see also Rausch v.
State Comp. Ins. Fund,
2005 MT 140, ¶ 18,
327 Mont. 272,
114 P.3d 192. Addressing the
first step, the Court defines the relevant classes created by the Consent Act as “pregnant
minors who want to obtain an abortion and . . . pregnant minors who do not want an
abortion.” Opinion, ¶ 28. It is this designation of the classes under the first step with which
I disagree.
¶62 The Court correctly notes that a similarly situated class is one that is “equivalent in
all relevant respects other than the factor constituting . . . the alleged discrimination,” and
that the “goal of identifying a similarly situated class is to isolate the factor allegedly
subject to impermissible discrimination.” Opinion, ¶ 27. However, in this case challenging
the Consent Act, which regulates youth access to abortion, pregnant minors who are not
seeking an abortion are not “equivalent in all relevant respects” to pregnant minors who
are seeking an abortion. The group not seeking an abortion does not interact with the
Consent Act at all. For purposes of the equal protection analysis, the mere existence of the
Consent Act cannot “create” a class to whom it could never apply, i.e., women completing
their pregnancy, and therefore that group is not the result of a legislative classification.
39
Instead, the two groups of pregnant minors are created by the different personal choices
those groups have made. Consequently, the classes utilized by the Court are not created
by the Consent Act, because the Act has no application to the group not seeking an abortion,
and the Court’s determination that “the factor needing to be isolated is the Consent Act” is
incorrect.
¶63 Rather, the proper distinction created by the Consent Act is between minors seeking
an abortion and adults seeking an abortion. In brief, the distinction is one of age. The plain
language and purpose of the Consent Act make this distinction clear. As the Court notes,
the Consent Act “conditions a minor’s right to obtain an abortion on parental consent unless
a judicial waiver is obtained.” Opinion, ¶ 1 (emphasis added). The Act provides a process
for obtaining parental consent for a minor’s abortion that involves numerous steps and
complications. However, the day the minor turns 18 years old, all of the conditions
imposed by the Act disappear, and the now 18-year-old person may obtain an abortion
without satisfying these requirements. The Act thus exempts from its requirements adult
women seeking an abortion. As the Court correctly explains, similarly situated classes are
equal in all relevant respects, except for the factor constituting the facially discriminatory
aspect of the law at issue. The Consent Act does not seek to regulate abortion per se, but
instead seeks to establish the conditions that must be satisfied for a minor to obtain an
abortion, and to exempt an adult from the conditions. Thus, the distinguishing “factor” of
the legislative classification at issue is age. The groups are similarly situated because they
are both comprised of women who are seeking abortions, and are treated differently on the
40
basis of their age. This is also a more appropriate designation of classes for this particular
case, involving application of Article II, Section 15.
¶64 Having concluded that the relevant legislative classification is one based on age, I
would next move to a determination of the appropriate level of review. Goble, ¶ 28.
Typically, facial discrimination based on age is subject to rational basis review. Jaksha v.
Butte-Silver Bow Cnty., 2009 MT 263, ¶ 20,
352 Mont. 46,
214 P.3d 1248. However, the
regulation at issue here involves the right to seek an abortion, which we have deemed a
fundamental right of privacy. Armstrong, ¶ 42. Therefore, strict scrutiny review must
apply to the Consent Act. See S.L.M.,
287 Mont. at 34,
951 P.2d at 1372. Consequently,
I agree with the Court that the Act is not narrowly tailored to satisfy the State’s stated
compelling interests.
¶65 I concur in the Court’s judgment.
/S/ JIM RICE
41
