Restrictions on Young Women's Access to Abortion
Montana law restricts young women's access to abortion.
Is the law enforceable? No. A state court held that this law is unconstitutional and unenforceable because it violates the equal protection clause of the Montana Constitution by infringing, without adequate justification, on young women's privacy rights. Wicklund v. State, No. ADV-97-671 (Mont. Dist. Ct. Feb. 12, 1999) (summary judgment), No. ADV-97-671 (Mont. Dist. Ct. Feb. 25, 1999) (permanent injunction), appeal filed, No. 99-311 (Mont. Apr. 15, 1999), appeal dismissed, (Mont. Nov. 29, 1999).
Who is considered a minor? A young woman under the age of 18 who has never been married and who has not been granted an order of limited emancipation.
What is required - parental consent or parental notice? Notice.
Who must be notified? One parent.
Are there other trusted adults who may be notified instead? No.
What is the process for providing notification? A young woman may not obtain an abortion until at least 48 hours after actual notice has been given to one parent by the attending or referring physician, unless the person entitled to notice waives notice in writing. If actual notice is not possible after a reasonable effort, notice may be made by certified mail. If notice is made by certified mail, the 48-hour period begins to run at noon on the next day on which regular mail delivery takes place.
May the parental mandate be waived if a young woman is a victim of rape or incest? Yes, but the young woman must go to court.
May the parental mandate be waived if a young woman is a victim of child abuse? Yes, but the young woman must go to court.
May the parental mandate be waived if a young woman's health is threatened? Yes, but only if the attending physician certifies in writing that a medical emergency exists. A medical emergency is defined as a condition that necessitates an immediate abortion to preserve the woman's life or for which a delay will create "serious risk of substantial and irreversible impairment of a major bodily function."
May the parental mandate be waived under any other circumstances? Yes, the young woman may try to obtain permission from a judge.
If a young woman must obtain permission from a judge, what is the process? She must secure a court order finding by clear and convincing evidence that she is sufficiently mature enough to make her own decision, that there is evidence that she has been subject to a pattern of physical, sexual, or emotional abuse by one or both parents, or that parental notice is not in her best interests.
Are there other significant requirements under the law? No.
Has a court considered the constitutionality of this law? Yes. The U.S. Supreme Court held that this law is constitutional under the federal Constitution. Lambert v. Wicklund, 520 U.S. 292 (1997). However, in a lawsuit challenging the law under the state constitution, a state court held that this law is unconstitutional and issued a permanent injunction prohibiting its enforcement. Wicklund v. State, No. ADV-97-671 (Mont. Dist. Ct. Feb. 12, 1999) (summary judgment), No. ADV-97-671 (Mont. Dist. Ct. Feb. 25, 1999) (permanent injunction).
Other information about the law: None.
Mont. Code Ann. §§ 50-20-201 to -205, -208, -209, -211, -215 (Enacted 1995), -212 (Enacted 1995; Last Amended 2005).