Written by Kyle Schmauch
Seventeen years after the courts struck down an early attempt to require minors to notify their parents before getting an abortion, the contentious issue is back on the ballot this fall.
Legislative Referendum 120 is almost exactly like a 1995 law struck down by a Montana court as violating the Montana Constitution — with one key change.
“The difference is that the age is lower,” Jeff Laszloffy, head of the Montana Family Foundation, said, explaining the referendum would apply only to minors under 16. The previous law applied to girls under 18.
LR-120 would require that doctors notify parents or legal guardians at least 48 hours in advance of the abortion if the patient is under 16. If the minor does not want the notification to occur, she can obtain a waiver from a youth court. Notice would not be required in the case of a medical emergency.
Under the proposal, any doctor who fails to notify the parent or receive a waiver could face six months in jail and a $500 fine.
Debate Over Impacts
Both proponents and opponents of the referendum say their primary concern is the health and safety of young women, but they disagree over the proposed law’s impacts.
For Laszloffy, the proposal is about ensuring parents know what is happening in their family. He said LR-120 is “primarily a parental rights issue.”
He added that far less significant decisions like getting a tattoo or body piercing require parental consent — a stricter requirement than notification.
“[Abortion] is the only exception where a 13-year-old can make this type of decision,” he said. “This is what happens when political correctness trumps common sense.”
But Julianna Crowley, executive director of NARAL Pro-Choice Montana, stressed the proposal would put vulnerable girls in harm’s way. “It’s about privacy and it’s about abortion rights,” she said.
Planned Parenthood of Montana, which opposes the ballot initiative, estimates that 80 percent of minors already tell parents or guardians about their pregnancies.
“[A notification law] puts young women who can’t go to their parents in dangerous situations,” Crowley said. “For voters, think about teens who they know may fear a violent reaction from their parents.”
Laszloffy countered that he was also concerned about a girl who faces possible violence or abuse at home.
“If she has a dangerous home situation … this [working through a youth court] is a way she could actually end the abuse.” He also said it is dangerous for parents not to know when their child has gone through a medical procedure.
Both sides acknowledge the referendum would affect only a few Montana teens each year. The Centers for Disease Control and Prevention found that 43 reported abortions occurred among teens ages 15 and under in Montana in 2008 (the most recent year available).
Thirty-seven other states have some version of a parental notification law on their books, but Montana has been here before.
In 1995, Montana’s Legislature adopted a parental notification measure. The U.S. Supreme Court ruled the Parental Notice of Abortion Act was constitutional under the United States Constitution.
However, a state district court ruled that law unconstitutional under the equal protection and privacy clauses of the Montana Constitution.
Crowley said LR-120 would raise the same legal concerns as that case. Laszloffy acknowledged that while the PNAA was thrown out as unconstitutional, lowering the age of girls covered by the law helped address the issue.
Gov. Brian Schweitzer decided differently last year when he vetoed the same legislation passed by the Republican-controlled Legislature.
The governor made note of the lower age of affected minors, but declared in his veto letter: “Given the strength of the 1995 … decision rejecting as unconstitutional an almost identical parental notice law, and a subsequent decision of the Montana Supreme Court solidifying Montana's strong privacy provisions not only generally, but specifically in the abortion context …, I have chosen to veto SB 97.”
If the voters approve the new notification language, many observers expect an immediate and perhaps protracted legal fight over the issue.