News! Montana AG barred from defending abortion consent laws

“These laws are not only bad health policy, but also clear violations of young Montanans’ constitutional rights.”

Reposted from Missoulian.com by Charles Johnson

HELENA – A Helena district judge has blocked the state from defending two state laws that require minors to obtain parental consent before obtaining abortions.

Planned Parenthood of Montana, which challenged the laws, claimed victory Tuesday. A spokeswoman said the group now will ask District Judge Jeffrey Sherlock of Helena to permanently enjoin the two laws to stop them from being enforced.

Attorney General Tim Fox, representing the state, intends to appeal Sherlock’s decision to the Montana Supreme Court, a spokesman said.

Planned Parenthood filed a lawsuit in May 2013 challenging the Montana Parental Consent for Abortion Act passed by the 2013 Legislature. It required a female who is younger than 18 years old to obtain a notarized consent from a parent before getting an abortion.

The 2013 law had the effect of repealing Legislative Referendum 120, which Montana voters passed by a 71 percent to 29 percent margin in 2012. That law had prohibited a pregnant female who is younger than 16 years old from obtaining an abortion without having notified a parent of her intent.

Planned Parenthood argued that the laws violated Montana’s constitutional right to privacy, the right to equal protection and the rights of individuals not adults.

In his ruling Friday, Sherlock determined that the issue had already been decided in a 1999 ruling in the Wickland case by District Judge Dorothy McCarter, a former Helena judge now retired.

McCarter’s Wickland decision struck down as unconstitutional a state law requiring parental notification, or a court order, for a minor seeking abortion.

McCarter’s decision, Sherlock said, found that the compelling interests advanced by the state in support of parental consent laws “are not sufficient to support the violation of constitutional rights of a pregnant minor seeking an abortion.”

The state did not appeal the 1999 decision, and the law later was permanently enjoined.

In the 2013 challenge, Sherlock denied the state’s motion seeking a ruling determining that “collateral estoppal” doesn’t apply in this case.

Black’s Law Dictionary explains collateral estoppal this way: “When an issue of ultimate fact has been determined by a valid judgment, that issue cannot be again litigated between the same parties in future litigation.”

“These concerns of the state are certainly legitimate,” Sherlock said. “However, there was nothing preventing the state form appealing the Wickland decision.”

As a result, he denied the state’s motion for a summary judgment and granted Planned Parenthood’s request for summary judgment in its favor.

“The court rules that the state of Montana is collaterally estopped from asserting that the compelling interests set forth in either the legislative referendum or the Parental Consent for Abortion Act justify the infringement on the constitutional rights of a minor seeking an abortion,” Sherlock said.

In response, Martha Stahl, CEO and president of Planned Parenthood of Montana, said,

“These laws are not only bad health policy, but also clear violations of young Montanans’ constitutional rights.

Stahl said the question is whether Fox “will accept the ruling that protects the right and health of the young women of Montana, or force the state to spend more resources in litigating laws held unconstitutional more than a decade ago.”

Fox’s spokesman John Barnes said an appeal is certain.

“More than 70 percent of Montana voters believe parents should be involved in their children’s life-changing decisions, which is why Attorney General Fox will continue to defend Montanans’ right to direct democracy through the voter initiative process by appealing this District Court decision,” Barnes said.