A Montana law requiring minors to seek parental consent for an abortion has long been blocked by the state courts. Now, a new order from the U.S. Supreme Court suggests the law will remain obsolete.
On Thursday, the nation’s high court announced that it would not consider the state of Montana’s appeal of a 2024 state Supreme Court ruling that struck down the 2013 parental consent law, foreclosing its final chance for revival.
Justice Samuel Alito, joined by Justice Clarence Thomas, wrote Thursday that although the state requested the court weigh in on the central questions of parental rights and individual autonomy, the specifics of the appeal made this case a poor vehicle for doing so.
The two justices — both conservatives — noted, however, that the denial of the appeal should not be “read by interested parties or other courts as a rejection of the argument that the petition asks us to decide.”
The litigation around the parental consent law has charted a long and rocky path to the present, one that illustrates the many political changes the state has undergone in the more than 10 years since the Montana Legislature adopted it. (For one, Montana’s governor at the time was Democrat Steve Bullock, who allowed the bill to become law without his signature.)
Planned Parenthood of Montana simultaneously challenged the law and a 2012 ballot petition to require those under 16 seeking an abortion to notify their parents, arguing they violated the broad privacy protection in the state Constitution — the same provision undergirding the court order that had generally protected abortion access in Montana since 1999. The consent law was blocked before it could take effect, a supposedly temporary injunction agreed to by the state’s top lawyer, then-Attorney General Tim Fox. (Fox, now considered a comparatively moderate Republican, is nonetheless no pro-choice
warrior).
Since then, a variety of state courts have issued intermediary orders as the case has bounced around between judges. Along the way, a new political order took hold in Montana — in 2020, voters elected Republican Gov. Greg Gianforte and hardline GOP Attorney General Austin Knudsen, reigniting the effort to restrict abortion in the state. Knudsen began agitating for the case to move, arguing that the 2013 court and Fox could not have anticipated that the injunction would last this long without a ruling on the case’s constitutional questions.
In 2023, a state district court judge ruled the law was unconstitutional, denying the state’s argument that the law fell within the established constitutional rights of parents over their minor children. The next year, the state Supreme Court affirmed that decision.
“A minor’s right to dignity, autonomy, and the right to choose are embedded in the liberties found in the Montana Constitution,” Justice Laurie McKinnon wrote then for the court. “Because a minor’s right to control her reproductive decisions is among the most fundamental of the rights she possesses, and because the State has failed to demonstrate a real and significant relationship between the statutory classification and the ends asserted, we hold that the Consent Act violates the Constitution of the State of Montana.”
Knudsen’s office appealed that ruling early this year.
“SCOTUS should hear the case and reverse the radical Montana Supreme Court’s bad decision allowing minors to receive abortions without parental consent. A child’s right to privacy does not supersede a parent’s fundamental right to direct the care and upbringing of their child,” Knudsen said in a statement at the time. “Until we get clarity from the Supreme Court, the health and safety of young Montanans seeking abortions is at risk.”
But the high court declined to hear the appeal. As Alito and Thomas indicated, this doesn’t indicate the court’s position on the constitutional questions essential to the case. It’s also worth noting that the court only accepts about 3 percent of the appeals — technically called petitions for writ of certiorari, or a “cert petition” — it receives, 6 percent if you only count petitions from attorneys (as opposed to self-represented litigants), and 20 percent for petitions from state attorneys general.
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