Montana Supreme Court Upholds Minors' Right to Abortion

Montana Supreme Court Rules Minors Don't Need Parental Permission for Abortion

Montana’s Supreme Court ruled Wednesday that minors don’t need their parents’ permission to get an abortion in the state – agreeing with a lower court ruling that found the parental consent law violates the privacy clause in the state constitution.

“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,” Justice Laurie McKinnon wrote in the unanimous opinion.

The ruling comes as an initiative to ask voters if they want to protect the right to a pre-viability abortion in the state constitution is expected to be on the Montana ballot in November. County officials have verified enough signatures to qualify the issue for the ballot, supporters have said. The Secretary of State’s Office has to certify the general election ballots by Aug. 22.

See also Montana Supreme Court Strikes Down Abortion Law Requiring Parental Consent

The unanimous decision is here,  Planned Parenthood of Montana v. State of Montana (Aug. 14, 2024), authored by Judge Laurie McKinnon. Of the seven justices, three are women.

Montana is a little different than other states. As I have written here, Protecting Abortion with Health Care Freedom of Choice, 51 Journal Law, Medicine & Ethics 601 (2023), Montana has an express right to health care in its state constitution. When combined with rights to privacy under due process, there is a synergism that strengthens reproductive rights. 

This broader meaning of the right to health care freedom was adopted by Montana in interpreting its constitution to protect abortion. In 1972, Montana adopted a health care freedom amendment guaranteeing the right to seek “safety, health and happiness.” In 1999, the Montana Supreme Court applied the amendment to abortion, defining this health freedom in Armstrong v. State as “the right to seek and obtain medical care from a chosen health care provider and to make personal judgments affecting one’s own health and bodily integrity without government interference.” The court emphasized: “Unless fundamental constitutional rights—procreative autonomy being the present example—are grounded in something more substantial than the prevailing political winds, Huxley’s Brave New World or Orwell’s 1984 will always be as close as the next election.” “Fortunately,” the court held, “the roots of Montana’s constitutional 
right of procreative autonomy go much deeper and are firmly embedded in the right of individual privacy.”

The Supreme Court has affirmed this holding three times: Armstrong v. State, 989 P.2d 364 (Mont. 1999); reaffirmed in Weems v. State, 440 P.3d 4 (Mont. 2019); declined to overrule in Planned Parenthood v. Knudsen, 515 P.3d 301, 307-08 (Mont. 2022).