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The petition comes after the Montana Supreme Court overturned a 2013 state law, claiming that a minor’s broad right to obtain an abortion supersedes parents’ right to direct the health of their child.
Montana’s attorney general has asked the U.S. Supreme Court to weigh in on whether parents have a constitutional right to provide consent before their minor child is allowed to get an abortion.
Montana’s legislature passed the Parental Consent for Abortion Act in 2013 but was never implemented, thanks to a series of legal challenges. In August 2024, the Montana Supreme Court, in a unanimous opinion, struck down the law, ruling that a minor’s right to privacy overrides any rights or responsibilities parents have in overseeing medical decisions for their child.
Attorney General Austin Knudsen filed the petition late last week appealing the Montana Supreme Court’s ruling.
“SCOTUS should hear the case and reverse the radical Montana Supreme Court’s bad decision allowing minors to receive abortions without parental consent,” Knudsen stated. “A child’s right to privacy does not supersede a parent’s fundamental right to direct the care and upbringing of their child. Until we get clarity from the Supreme Court, the health and safety of young Montanans seeking abortions is at risk.”
The Montana law, also known as HB391, mandates that abortion providers notify parents and obtain consent at least 48 hours before performing an abortion on their minor child. A minor is defined as being under the age of 16.
Failure to notify parents can result in criminal and civil penalties.
There are exceptions to the law, including in the case of medical emergency, if the parent waives the notice requirement in writing, or if a court issues a “judicial bypass” after determining that it’s in the child’s best interest to have an abortion without notifying parents.
The law also bans anyone from coercing a minor to have an abortion.
Planned Parenthood immediately challenged HB 391 in court, and the law was held up for several years. In a 7-0 opinion, the Montana Supreme Court declared the law unconstitutional. Writing for the majority, Justice Laurie McKinnon claimed that “a minor’s right to control her reproductive decisions is among the most fundamental of the rights she possesses.”
Knudsen argues that the court erred in elevating a minor’s right to privacy over the actual fundamental right of parents. In its petition to the U.S. Supreme Court for a writ of certiorari, Montana cites numerous Supreme Court decisions and legal precedent upholding parental rights as one of the nation’s most fundamental rights, even preceding the birth of the United States.
Montana cites cases such as Parham v. J.R., which upheld parents’ rights to make medical decisions for children even if the child disagrees, and Planned Parenthood of Central Missouri v. Danforth, which declared that parental consent laws are constitutional if they don’t give parents an absolute right to denial.
Knudsen notes that Montana and its voters have tried three times since 1995 to create parental consent laws, but courts have stopped them every time. HB 391 itself was passed in response to a voter referendum in which over 70 percent of voters said they wanted a law mandating parental consent and outlawing coerced abortion.
The petition also notes that there is a split between the U.S. appellate rulings on this matter and requests that the Supreme Court provide clarification.
The Fifth and Ninth Circuit Courts have held that parental notification and consent laws are constitutional, while the Third and Sixth Circuit Courts and the Alaska and Montana state supreme courts have said that a minor’s right to an abortion trumps parental rights.
“This confusion on the scope of parental rights and abortion providers’ legal duties to parents will continue to grow until this court intervenes,” Knudsen argued. “And state experimentation with the scope of a minor’s state constitutional right to seek an abortion threatens to erode parents’ federal fundamental rights. This Court’s review and guidance is sorely needed.”
Parental rights’ jurisprudence is centered on the reality that, in most cases, parents are the ones most suited to know, and the most likely to pursue, the best interests and needs of their child — not government and certainly not abortion providers.
This reality, derived from the Bible, Greek and Roman philosophers, English common law, and the U.S. Constitution, has undergirded centuries of English and American jurisprudence. It is the foundational principle that prompted the Supreme Court to rule in the 1979 case of Parham v. J.R.:
“Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course; our constitutional system long ago rejected any notion that a child is the mere creature of the State and, on the contrary, asserted that parents generally have the right, coupled with the high duty, to recognize and prepare their children for additional obligations. … The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions.”
The Court rejected the argument that because some parents mistreat their children, the government should usurp all parental control, explaining,
“The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition. Simply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state. … Most children, even in adolescence, simply are not able to make sound judgments concerning many decisions, including their need for medical care or treatment. Parents can and must make those judgments. …The fact that a child may balk at hospitalization or complain about a parental refusal to provide cosmetic surgery does not diminish the parents’ authority to decide what is best for the child. Neither state officials nor federal courts are equipped to review such parental decisions.”
Up until recently, no medical provider would ever undermine a parents’ right to know about and consent to, say, chemotherapy treatment or a surgery to remove an appendix or tonsils. And certainly no judge would say that a child’s “broad right to privacy” allowed that child to ask a doctor to give her, say, a nose job or prescribe weight loss pills or pain medicine.
Activist judges only seem to find “a broad right to privacy” for minors for left-wing medical procedures like abortion, experimental gender “treatments” that involve the use of off-label medications and mutilating surgeries, and COVID and HPV vaccines.
In the case of abortion, activist judges and abortion advocates somehow believe that a child under the age of 16 can be subjected to a chemical abortion that requires her to deal with the trauma of expelling a dead child alone or a surgical abortion that is gynecologically invasive — without any input or support from her parents.
The reality is the vast, vast majority of parents love their children deeply and want only the best for them. When children get themselves into an untenable situation, they need their parents to know what’s happening so they can help their children make informed decisions, and if necessary, care for their physical and emotional needs.
The Supreme Court should take the Montana case and settle this question once and for all: Who is best able to care for children — parents or the government?
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