Swimming upstream against the current antiabortion tide, the Montana Supreme Court recently ruled in favor of the “fundamental right of a minor to control her body and destiny.”
Teens under the age of 18, or minors, have long been considered “low-hanging fruit” when it comes to the imposition of legal restrictions on access to abortion. Invoking the entwined themes of youthful immaturity, the physical and emotional dangers of abortion, and the rights of parents over their children, antiabortion activists successfully lobbied lawmakers to enact parental involvement laws in a majority of states well before the 2022 overturning of Roe v. Wade. Responding to constitutional challenges, the U.S. Supreme Court ruled that these laws must provide teens with options other than seeking court authorization for the abortion, in what is commonly referred to as a “judicial bypass” hearing, which avoids the risk of a parental veto.
In addition to the tidal wave of abortion bans, the overturning of Roe has ushered in a proliferation of age-specific laws aimed at further controlling the reproductive bodies of minors. These include abortion trafficking laws to deter youthful cross-border abortion travel, the extension of parental requirements to the full range of reproductive healthcare, and the refusal to extend Title IX protections to pregnant students seeking abortion care. Driven by a parental rights agenda, lawmakers seek to penalize those who “go behind the parents’ back and encourage a child in a way opposite of what that parent is allowing” through these measures.
Bucking this trend in the bold and unequivocal affirmation of the “fundamental right of a minor to control her body and destiny,” the Supreme Court of Montana used state constitutional grounds to strike down the Consent Act on Aug. 14, which required minors to obtain parental consent for an abortion. Zeroing in on the differential treatment of teens based on their intended pregnancy outcome, the court ruled that the consent mandate violated the rights to privacy and equality of those choosing abortion over carrying to term. The decision does not invalidate Montana’s parental notification law, which is currently being challenged in state court.
Regarding the right to privacy, the court underscored that decisions “about ‘intimate invasions of body and psyche’ belong to the individual, including minors.” Accordingly, it held that the Consent Act impermissibly interfered with their right to procreative autonomy by conditioning access to abortion “on parental consent, or obtaining a judicial waiver [of the consent requirement], something a minor choosing to carry a pregnancy to term would not have to do.”
As to the right of equality, the court focused on the differential treatment of teens based on their intended pregnancy outcome. It concluded that teens seeking to abort were subjected to the “onerous and burdensome” requirements of the Consent Act, while teens opting for parenthood were entitled to their own reproductive decision. Thus, the law was impermissibly discriminatory in contravention of the protected constitutional right to equal treatment.
[The] argument is illogical: 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.
Montana Supreme Court
This determination was not the end of the court’s analysis. As required in constitutional cases, it then had to determine if Montana had a compelling justification for encroaching on the rights of minors seeking to terminate a pregnancy. As argued, these included:
- Protecting their psychological and physical wellbeing
- Protecting them from their own immaturity
- Promoting parental rights
The court’s analysis of these justifications determined that they were clearly intended to obfuscate the antiabortion animus behind the consent mandate.
With respect to the “psychological and physical wellbeing” of minors, the court stressed how abortion is “one of the safest forms of medical care in this country and the world.” Further revealing the duplicity of this rationale, it noted that rather than protect their physical wellbeing, the delays inherent in complying with the “onerous procedures of the Consent Act” actually harmed minors by increasing “the risk of abortion care.”
The court likewise emphasized the psychological harms of forcing a minor to “endure pregnancy and childbirth against her will,” resulting in a loss of “control over her personal bodily integrity … central to the preservation of her ability to define and adhere to her ultimate values.”
As to immaturity, the court readily exposed the fallacy of the state’s argument. As stated, its “argument is illogical: 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.”
Further compounding the speciousness of the state’s position, under Montana law, a minor can self-consent to all prenatal care. Upon giving birth, she can choose, without the necessity of parental consent, to parent the child, thus becoming “fully responsible for the infant’s life and for decisions about infant’s medical care and upbringing,” or to relinquish her child for adoption.
Control over her personal bodily integrity [is] central to the preservation of her ability to define and adhere to her ultimate values.
Montana Supreme Court
Swimming upstream against the current antiabortion tide, the court forcefully repudiated the entwined cumulative harms of these purported protective rationales for the Consent Act:
“The consequences of not being able to terminate a pregnancy can be decidedly more traumatic and severe than for obtaining an abortion. Adolescent mothers may not be able to complete high school and will remain dependent on family, a partner… [while] fully responsible for the infant’s life.”
Having disposed of these explanations for singling out abortion for state intervention, the court made short shrift of Montana’s argument that the Consent Act was needed in order to promote its interest in protecting the rights of parents. Effectively characterizing parental rights as a negative one, it stressed that parents have a “right to parent free from state interference, not a right to enlist the state’s powers to gain greater control over a child or make it more difficult for a minor to exercise their fundamental rights.”
In a final coup de gras, the court firmly rejected the state’s argument that the Consent Act was saved by the judicial bypass option since it allowed teens to access abortion care without the knowledge or permission of their parents. Zeroing in on the differential treatment of teens based upon their intended pregnancy outcome, the court elucidated that this alternative consent mechanism “did not remedy the maladies of the Consent Act” because it “singles out minors who choose to have an abortion and introduces unnecessary stress, delay, and potential increase in the risks of abortion.”
In keeping with other court decisions that invalidated their respective parental involvement law on state constitutional grounds prior to the overturning of Roe, this latest decision from the Montana Supreme Court makes it clear that these laws exemplify “abortion exceptionalism—namely, the subjecting of abortion to “overregulation” due to its “highly politicized and stigmatized status.”
Having revealed the baselessness of the underlying justifications for discriminating against teens who choose abortion over childbirth, it becomes readily apparent that these are antiabortion laws—plain and simple—that aim to divest teens of control over this reproductive choice.
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