NRL News

Montana Judge rules that state can’t defend parental involvement laws

by | Feb 6, 2014


By Dave Andrusko

District Judge Jeffrey Sherlock

District Judge Jeffrey Sherlock

District Judge Jeffrey Sherlock ruled Friday that the Montana attorney general’s office can’t defend two laws (LR 120 and HB 391) that require parental involvement in minors’ abortion decisions because the requirements were already struck down 15 years ago in a decision by Judge Dorothy McCarter.

John Barnes, a spokesman for Attorney General Tim Fox, said Fox intends to appeal the decision to the Montana Supreme Court because “70 percent of voters believe parents should be involved in their children’s life-changing decisions.”

In his decision Judge Sherlock denied the state’s motion for a summary judgment and granted Planned Parenthood of Montana’s request for summary judgment in its favor. Planned Parenthood of Montana has already said it will ask Sherlock to permanently enjoin the laws to stop them from being enforced.

The battle over parental involvement in Montana is mind-numbingly complex.

LR 120 passed on the 2012 ballot. That measure required minors under the age of 16 to notify their parents before getting an abortion.

HB 391 passed in the 2013 session of the Montana Legislature and requires girls under the age of 18 to obtain their parent’s consent before an abortion. HB 391 passed “several months after nearly 70 percent of the state’s voters approved a ballot measure requiring parental notification prior to an abortion for a girl under 16,” the Associated Press’ Matt Volz reported.

The consent law, were it be implemented, would repeal the notification statute, the Associated Press reported. The Planned Parenthood lawsuit aimed to strike both.

When Planned Parenthood of Montana filed its suit in May, HB 391’s sponsor, Rep. Jerry Bennett, said he was confident the measure would hold up in court, “in part because of a judicial bypass component that allows minors to seek permission from a judge, forgoing parental consent [that was missing in the 1995 law], to get an abortion,” AP’s Kathryn Haake reported.

NRLC State Legislative Director Mary Spaulding Balch, JD, told NRL News Today at the time that Gov. Steve Bullock allowed the parental consent bill to become law by neither signing it nor vetoing it.

Montana Gov. Steve Bullock

Montana Gov. Steve Bullock

“Gov. Bullock took this action to set up this lawsuit and to prevent an identical referendum from going on the ballot,” she said. “Clearly Planned Parenthood and Bullock believed they would have better success in the courts than with the voters of Montana.”

In her 1999 decision, Judge McCarter ruled that requiring minors to notify their parents before an abortion violated their constitutional rights to privacy and equal protection.

Judge Sherlock cited a decision by the Montana Supreme Court that “ruled against reopening an identical issue already decided upon if it involves the same parties and they already had a full and fair opportunity to present their case to a judge,” Volz reported.

“The question in this case is whether parents’ interests are so compelling that they can be allowed to infringe upon a minor’s constitutional rights – the very issue that McCarter already decided, Sherlock said. ‘That question has already been answered,’ he said.”

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Categories: Judicial Legislation