Montana judge blocks parental consent law, says kids’ ‘privacy’ can trump parents

After a decade-long limbo of a preliminary injunction, a Montana judge has permanently blocked the state’s law requiring minors under 16 to obtain the consent of their parents at least 48 hours before getting an abortion, while noting that a trial is necessary to determine if the state’s parental notification law should remain in place.

Judge Chris Abbott of the Lewis and Clark County District Court wrote in his decision that the parental consent law was unconstitutional and unenforceable, while also leaving some provisions in place. He likewise acknowledged that the legislature is currently in session, meaning they could take up the issue to pass another law if desired. 

Montana’s parental consent law has its origins in a 2012 ballot measure called the Parental Notice of Abortion Act, which required only notification prior to an abortion and was approved by a wide margin of voters. However, before the law was enacted, state legislators changed the bill to require parental consent with signatures.

The change became necessary because abortionists were instructing minors seeking abortions to send notification letters to fake addresses, according to Jeff Laszloffy, President of the Montana Family Foundation. 

Yet before the parental consent law went into effect, the state AG issued an injunction in response to a lawsuit by Planned Parenthood. By February 2022, when no action had been taken for several years, the current state AG withdrew the office’s consent to the preliminary injunction, resulting in the hearing before Judge Abbott that happened later that same year. 

“Now before the court are two statutes: One, enacted by the people, requiring parental notice prior to an abortion, the other, enacted by the legislature, requiring parental consent,” Abbott’s decision read in the Independent Record. “Whether these are popular or wise measures or reflect sound public policy is not for this court to decide, for the legislature (or the people, in the cases of initiative and referendum) holds the power to make law.”

Montana’s state constitution guarantees a “right to privacy,” and Planned Parenthood Advocates of Montana CEO Martha Fuller considers it one of the strongest privacy protections in the nation. Previously, under the now-overturned Roe v. Wade decision, abortion was considered “protected” under such a “right to privacy” because abortion was considered a medical decision. However, an induced abortion kills a human being and therefore cannot reasonably considered health care, and the direct, intentional killing of a preborn human being is never medically necessary.

But the state Supreme Court found that this provision in the state’s constitution protected abortion until viability. 

Judge Abbott wrote the state’s privacy requirement was the reason he permanently blocked the law, saying sometimes the interests of children differ from their parents, and their “privacy” should be upheld.

“Minors can abstain from consuming alcohol or getting a tattoo with little effect on their futures, but the same cannot be said of keeping a pregnancy or having an abortion,” he said according to the Daily Montanan. “There are few decisions with higher or longer-lasting stakes in life than whether to become or stay pregnant, and even fewer (if any) with equally profound spiritual, physical, mental, social, and economic considerations. The complexity of the dilemma only reinforces its individuality and therefore its place at the core of personal privacy.”

Laszloffy summed up the state of affairs. “We did not win, but we also did not lose. It’s more of a mixed bag,” he said in a podcast. “In short, the judge permanently enjoined the consent provision but allowed the notification provision to remain in place while the case goes to full trial. Another win for our side was the fact that the judge acknowledged serious and credible arguments on both sides that will have to be solved at trial.” 

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