Twenty-seven states require parental consent for a minor to have an abortion.[1] And fifteen states require parental notice.[2] But the Montana Supreme Court recently struck down Montana’s parental consent law under the state constitutional right to privacy and equal protection provisions.[3]

The Parental Consent for Abortion Act, passed by the legislature in 2013, “condition[ed] a minor’s right to obtain an abortion on parental consent unless a judicial waiver is obtained.”[4] Judicial waiver is appropriate when a minor demonstrates “that she is competent to decide whether to have an abortion” and that she has been abused by a parent or legal guardian” or that it is not in her best interests to have parental consent.[5] Planned Parenthood challenged the Act in state court. The trial court granted summary judgment to Planned Parenthood, holding that the Act “infringes on the right of privacy guaranteed in Article II, Section 10, of the Montana Constitution.”[6] The state appealed.

On appeal, the Montana Supreme Court addressed three state constitutional provisions: “(1) the Rights of Persons Not Adults; (2) the Right of Privacy; and (3) the Equal Protection Clause.”[7] First, the court explained “that minors do not have more or enhanced rights in comparison to adults.”[8] The court then repudiated its statement in a prior case that “the legislature must not only show a compelling state interest ‘but must also show that the [act] is designed to enhance the rights of minors.’”[9] Rather, the State must demonstrate (in addition to its compelling interest) how the act enhances the protections provided to minors.[10]

Second, the court reaffirmed “that minors, like adults, have a fundamental right to privacy, which includes procreative autonomy.”[11] The court explained that the 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,” making strict scrutiny appropriate.[12]

Third, the court held that the 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” and that these classes are similarly situated for equal protection purposes.[13] Because the Act “infringes upon a fundamental right,” the court determined that strict scrutiny was the appropriate test under equal protection as well.[14]

Applying strict scrutiny, the court dismissed the state’s argument “that abortion care presents a medical health risk,” relying on a prior Montana Supreme Court decision that held “abortion care is safe and presents relatively minimal health risk.”[15] The court then addressed the state’s other asserted interests, holding that while the state has compelling interests in protecting minors from sexual victimization, protecting minors’ psychological and physical wellbeing, protecting minors from their own immaturity, and protecting parental rights, the Act is not narrowly tailored to serve any of those interests.[16]

Finally, the court held that “the judicial waiver provision cannot remedy the maladies of the Consent Act . . . 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.”[17] The court did not address the U.S. Supreme Court’s holding in Planned Parenthood of Se. Pa. v. Casey that “a State may require a minor seeking an abortion to obtain the consent of a parent or guardian, provided that there is an adequate judicial bypass procedure.”[18] In contrast, the Montana Supreme Court held that the Act “cannot be sustained against plaintiffs’ privacy and equal protection challenges” and “does not enhance the protection of minors under Article II, Section 15, of the Montana Constitution.”[19] In other words, the Montana Constitution protects minors’ abortion rights even more strongly than the federal regime prior to Dobbs.

In concurrence, Justice James Rice criticized the lower courts for their “failure to address this case in a timely fashion,” which “delay[ed] resolution for almost eight years.”[20] He then agreed with the majority’s analysis under the state constitutional right to privacy but opined that the court should not have reached the equal protection issue.[21] He next argued that “the proper distinction created by the Consent Act is between minors seeking an abortion and adults seeking an abortion.”[22] Justice Rice nevertheless concluded that these groups were similarly situated and that the majority appropriately applied strict scrutiny review.[23]

This decision reinforces the Montana Supreme Court’s expansive interpretation of the state constitutional right to privacy, which “affords significantly broader protections than the federal constitution.”[24] A challenge to Montana’s Parental Notice of Abortion Act remains pending in state district court.[25]

[1] Parental Involvement in Minors’ Abortions, Guttmacher Inst. (Sept. 1, 2023), https://www.guttmacher.org/state-policy/explore/parental-involvement-minors-abortions.

[2] Id.

[3] Planned Parenthood of Montana v. State, 554 P.3d 153 (Mont. 2024).

[4] Id. at 159.

[5] Id. at 162.

[6] Id. at 159.

[7] Id. at 163. Article II, Section 15 of the Montana Constitution 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.” Mont. Const. art. II, § 15.

[8] Planned Parenthood of Montana, 554 P.3d at 164.

[9] Id. at 164 (quoting In re S.L.M., 951 P.2d 1365, 1373 (Mont. 1997)).

[10] Id.

[11] Id. at 165.

[12] Id.

[13] Id. at 166.

[14] Id.

[15] Id. at 167 (citing Weems v. State, 529 P.3d 798, 812 (Mont. 2023)).

[16] Id. at 168–72.

[17] Id. at 172.

[18] 505 U.S. 833, 899 (1992).

[19] Planned Parenthood of Montana, 554 P.3d at 173.

[20] Id. (Rice, J., specially concurring).

[21] Id. at 174.

[22] Id. at 175.

[23] Id.

[24] Id. at 163 (majority).

[25] Id. at 159.

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