By a vote of 7 to 0, the Montana supreme court ruled yesterday (in Planned Parenthood v. Montana) that a state law enacted in 2013 that generally requires parental consent for a minor’s abortion violates the state constitution. Justice Laurie McKinnon wrote the majority opinion for six justices, and a seventh justice concurred in the judgment.
The court’s ruling rests in large part on its concoction of a “fundamental” right to abortion in its 1999 ruling in Armstrong v. State, which invalidated a state law that allowed only licensed physicians to perform abortions. In Armstrong, the court ruled that the “right of individual privacy” set forth in the constitution that the state adopted in 1972 included a right to abortion. Never mind that Montana law from Montana’s time as a territory up through 1972 had broadly prohibited abortion. Never mind that, however accustomed we now are to hearing abortion sloppily referred to as a “privacy” right, it would have been bizarre to refer to it that way in 1972. (As John Hart Ely wrote in his famous critique of the Supreme Court’s Roe v. Wade decision a year later, abortion “has nothing to do with privacy in the Bill of Rights sense or any other the Constitution suggests.”)
The court adds its own usurpations to reach its result. I’ll highlight two.
The Montana constitution states that the rights of minors “shall include … all the fundamental rights of this Article [II] unless specifically precluded by laws which enhance the protection of such persons.” But in determining that Montana did not narrowly pursue its compelling interest in protecting minors from their own immaturity, the court objects that the parental-consent law “singles out only minors seeking an abortion, and not those who choose to carry their pregnancies to term.” The court thinks it “illogical” that the legislature could conclude that “minors who choose to carry their pregnancies are not at risk of making an immature decision, while those choosing abortion must be protected against their immaturity.” But a minor who chooses to continue her pregnancy can surely be expected to receive advice from her parents. More broadly, why may not the legislature believe that a minor’s decision to abort—a decision, that is, that generally entails a refusal to take responsibility for her own actions—is inherently much less mature than a decision to give birth?
Even more bizarrely, the court objects that the parental-consent law “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 the law violates the state constitutional guarantee of equal protection by “discriminat[ing]” against the former. But (and this is perhaps the only point that the concurring justice gets right) it’s inane to say that the law creates these two classes.