By Dave Andrusko
In February, NRL News Today reported that District Judge Jeffrey Sherlock had ruled that the Montana attorney general’s office couldn’t defend two laws (LR 120 and HB 391) that require parental involvement in minors’ abortion decisions.
Attorney General Tim Fox appealed the decision.
Yesterday, in a 4-1 decision, the Montana Supreme Court reversed Sherlock, who had granted summary judgment to Planned Parenthood of Montana and Dr. Paul Frederick Henke. In a majority opinion written by Justice James Jeremiah Shea, the court sent the case back to Sherlock.
The history of parental involvement in the abortion decision of minor girls in Montana is mind-numbingly complicated. This latest lawsuit is only the most recent example.
In 1999, the Montana Supreme Court struck down the 1995 parental consent law on that grounds that it violated rights to privacy, equal protection, and the rights of minors.
In 2011 the legislature placed LR-120 for the ballot—and it passed. The measure requires minors under the age of 16 to notify their parents before getting an abortion.
In 2013 HB 391 passed the Montana Legislature. It requires girls under the age of 18 to obtain their parent’s consent before an abortion.
The Planned Parenthood lawsuit seeks to strike both.
Planned Parenthood/Henke “argued that a 1999 District Court ruling, which held unconstitutional a similar 1995 law that required parental notification before a minor may obtain an abortion, prevents litigation of the issues raised in this case,” according to Charles Johnson of the Independent Record newspaper.
Sherlock agreed. He “held the rule of collateral estoppel, or issue preclusion, prevented the state from defending the constitutionality of two laws [2011 and 2013] requiring the involvement of a minor’s parents before she may obtain an abortion,” Johnson reported.
But Justice Shea, joined by Justices Laurie McKinnon, Beth Baker and Jim Rice, wrote that issue preclusion applied only if the current case was identical to the issues in the 1999 case. He wrote that there were “substantive differences” between the 2011 and 2013 laws and the 1995 law.
“Although the laws that are the subject of the current challenge are similar to the 1995 law, they differ in substantive requests,” Shea wrote. “Therefore, the issues to be decided in this case, while similar, are not identical to the previous case. Therefore, … issue preclusion does not apply.”
According to Johnson, the differences between the 1995 and the 2011 law were
· The 1995 law applied to minors under 18; the 2011 laws applied to minors under 16.
· True, both the 1995 and 2011 laws allowed judicial bypass, but different standards of evidence were required.
Likewise, “Shea said there are two substantive differences between the 1995 and 2013 laws,” Johnson wrote.
First, the 1995 law required only that notice be given to a minor’s parents or legal guardian, while the 2013 law requires that the minor’s parents or legal guardian consent to the abortion.
Second, the 1995 and 2013 laws differ in their evidence requirement.
In response to Tuesday’s decision, Attorney General Fox said
“More than 70 percent of Montana voters and a majority of legislators enacted the parental notification and parental consent laws.”
“The will of the people has been made clear. Today’s ruling means we can move forward in vigorously defending the fundamental rights of parents to be involved in the decisions their children face.”