High court stays out of scuffle over Montana abortion consent law
Kelsey Reichmann
WASHINGTON (CN) — Montana came up short at the U.S. Supreme Court on Thursday in its bid to revive a parental consent law for abortion access, but some conservative justices suggested taking up the issue in a different case.
The Montana Supreme Court ruled the Parental Consent for Abortion Act violated the rights to privacy and equal protection under the Montana Constitution. The justices refused to decide if the law passes muster under the federal Constitution, but Justice Samuel Alito — who wrote the majority opinion striking down the federal right to abortion — suggested that he would review whether parents had a right to participate in abortion decisions in another case.
“Because of the way this case was litigated below, it provides a poor vehicle for deciding that question,” Alito wrote in a statement joined by Justice Clarence Thomas. “It is therefore especially important that the denial of review is not read by interested parties or other courts as a rejection of the argument that the petition asks us to decide.”
The Parental Consent for Abortion Act has been enjoined for over a decade as litigation between Planned Parenthood and Montana dragged on. In the lower courts, Montana defended the law under the state Constitution, presenting federal constitutional questions only when the case reached the Supreme Court.
“The state cited a decision of this court on the rights of parents as support for its argument based on state law, but it did not expressly argue that a holding against it on the state constitutional question would infringe the federal constitutional rights of parents,” Alito, a George W. Bush appointee, wrote. “Similarly, the Supreme Court of Montana, while citing our decision in Troxel v. Granville, did not expressly hold that the rights of minors under Montana law took precedence over the federal constitutional rights of parents.”
Troxel held that the 14th Amendment protects a parent’s right to oversee the care, custody and control of a child.
In Dobbs v. Jackson Women’s Health Organization, Alito said the federal Constitution was silent on the issue of abortion, handing the governance of the procedure back to the states. Leah Litman, a law professor at the University of Michigan, found it ironic that Alito and Thomas are now suggesting that the Constitution might override a state’s decision to allow abortion in certain circumstances.
“It was apparent in Dobbs and before Dobbs that the movement to overrule Roe was not going to stop at merely ‘letting the people decide’ whether to allow or prohibit abortion access,” Litman wrote in a Substack post.
Instead, Litman said the movement to end Roe was one step in a longer journey to restore gender hierarchy.
“The movement associated with the rise of originalism was not just about letting government decide whether abortion should be legal,” Litman wrote. “It was, in William Rehnquist’s words, about ‘overtones of dislike and distaste for the traditional difference between men and women in the family unit.’”
While Montana struck out on parental consent, an abortion protester fared better.
Gabriel Olivier, an evangelical Christian, wants to challenge an ordinance in Brandon, Mississippi, that restricts protests to certain areas around a concert venue for safety. He was arrested and convicted of violating the ordinance during a 2021 country music concert.
Despite pleading no contest to the charges, Olivier claims the ordinance is unconstitutional and filed a lawsuit seeking injunctive and monetary relief. Olivier says he wanted to share the gospel of Jesus Christ with others and was silenced by the city’s ordinance.
The city says Olivier’s evangelism included calling individuals “whores,” “Jezebels,” “grody,” “nasty,” “sissies,” and other derogatory names over a loudspeaker while holding large signs with pictures of blood-covered fetuses.
A court dismissed Olivier’s case under Heck v. Humphrey, a 1994 ruling that held a defendant cannot claim damages for a supposedly unconstitutional conviction or imprisonment without showing that the conviction or sentence has been overturned in some way.
The justices agreed to review the dismissal of Olivier's lawsuit but would have to overturn three decades of precedent for him to prevail given his conviction under the ordinance.