A northwestern state’s supreme court is striking down a pro-life law that would require parental consent before a minor could seek an abortion. The Montana Supreme Court ruled on Wednesday that the state’s Parental Consent for Abortion Act of 2013 (referred to by the court as the Consent Act) violated a “right to privacy” enumerated in Montana’s state constitution.

Almost immediately upon being passed in 2013, the Consent Act was challenged by pro-abortion advocates and organizations. Years of litigation have thus prevented the law from going into effect. A similar, earlier law, the Parental Notice of Abortion Act of 1995, was struck down by a Montana district court in 1999, with the court declaring that the law “unconstitutionally violated a minor’s right to privacy and equal protection of the law.” That decision was not appealed.

Another Parental Notice of Abortion Act became law in 2013, requiring that parents be notified if a minor seeks an abortion, but not requiring parental consent. The Montana legislature then passed the Consent Act, repealing the Parental Notice of Abortion Act and requiring not only parental notification but parental consent if a minor seeks an abortion. Planned Parenthood of Montana challenged the new law, which was halted from going into effect during litigation.

Due to, as the Montana Supreme Court put it, “a lengthy series of judicial substitutions, recusals, and retirements,” no judgment was reached in the case until early in 2023. The district court sided with Planned Parenthood, again agreeing that the law violated the state constitution’s “right to privacy.” The case had previously gone before the Montana Supreme Court in 2014, on different grounds but was remanded back to the district court. The lower court now sought to certify its decision and elevated it to the Montana Supreme Court in 2023. Oral arguments in the case were heard in March of 2024.

Writing for the court’s majority, Justice Laurie McKinnon summarized the arguments in favor of the Consent Act, saying that minors are often immature and “lack the ability to make fully informed choices that take into account both immediate and long-range consequences,” particularly regarding such serious matters as pregnancy and abortion. She observed that “parents ordinarily possess information essential to a physician in the exercise of the physician’s best medical judgment concerning the minor; 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 parental consultation is usually desirable and in the best interests of the minor.”

McKinnon summarized the “compelling state interests” furthered by the law as “protecting minors against their own immaturity; fostering family unity and preserving the family as a viable social unit; protecting the constitutional rights of parents to rear children who are members of their household; and reducing teenage pregnancy and unnecessary abortion.”

“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,” McKinnon wrote. “The State also argues that Parents have a fundamental right to direct the care, custody, and control of their children.”

“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,” McKinnon continued. Referring to Planned Parenthood’s argument that the Consent Act creates two “classes” of minors — that is, those who seek abortions and those who do not — McKinnon wrote, “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.” The Montana judge further wrote:

“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.”

Ultimately, the court determined, “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.” The court, again in McKinnon’s words, continued, “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.”

“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,” McKinnon continued in her opinion for the majority. “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.”

In response to the court’s ruling, Montana’s Republican Governor Greg Gianforte said in a statement, “As a strong defender of parental rights, I’m deeply concerned and disappointed by today’s ruling from the Montana Supreme Court, which states parents do not have a fundamental right to oversee the medical care of their young daughters.” He continued, “In its ruling, the Court has wielded its gavel like a hammer against one of the fundamental rights in our history: the right of parents to consent to the medical care of their minor children.”

Mary Szoch, Family Research Council’s director of the Center for Human Dignity, commented, “The Montana Supreme Court ruling is a departure from prioritizing the protection and well-being of minors in favor of prioritizing the culture of death. In Montana, because of the desire to protect children, a child cannot take Tylenol, get her ears pierced, or donate blood without parental consent. Yet, the Montana Supreme Court ruled that an abortionist can kill a child’s unborn baby without it.”

She continued, “Children’s brains are not fully developed — and impulsive behavior is a hallmark of an undeveloped brain. This Montana Supreme Court decision will certainly pad the wallets of the abortion industry that profits off making women and girls feel helpless and alone. Moreover, it will enable human traffickers and child abusers, it will contribute to the mental health crisis that already plagues teens across the country, and it will end the lives of countless babies whose mothers will one day be devastated by their impulsive decision and wonder why no adult stepped in to stop them.”