Montana asks justices to revive parental-consent law for minors to get an abortion

The Petitions of the Week column highlights some of the cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Since the Supreme Court overruled a federal constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, the fight over reproductive rights has shifted to state courts. This week, we highlight petitions asking the court to consider, among other things, whether to overturn a ruling by the Montana Supreme Court that struck down a state law requiring minors under the age of 18 to get consent from their parents before obtaining an abortion.

As far as states go, Montana is on the protective side of reproductive rights. The state’s supreme court ruled over 25 years ago that the right to privacy in its constitution protects a right to abortion. And in the 2024 elections, Montana voters passed a constitutional amendment specifically enshrining a right to abortion in the state constitution — and thus protecting abortion against a possible overruling of the state supreme court’s privacy decision.

Children under 16 in Montana who seek an abortion, however, are required to notify their parents or legal guardian 48 hours before the procedure, unless they can obtain permission from a judge to bypass that requirement.

In 2013, the Montana legislature tried to expand abortion restrictions for minors. It enacted a law requiring teenagers under 18 to get consent from a parent or guardian, not merely to give them notice, before they can get an abortion. Like the existing parental-notice rule, the new parental-consent law also contained a so-called “judicial bypass” provision, allowing minors to ask a judge to green-light an abortion without their parents’ consent in cases of abuse, or when getting that consent would not otherwise be in the child’s “best interests.”

The parental-consent law never went into effect. Planned Parenthood immediately went to state trial court to challenge the law. Perhaps in part because the parental-notice rule remained on the books, Montana agreed to an order — known as a preliminary injunction — to put the new parental-consent law on hold while the litigation continued.

Procedural hurdles then stalled the litigation for nearly a decade. Eventually, Dobbs breathed new life into the dispute. After the landmark 2022 ruling, Montana cited the decision to bolster its argument in favor of dissolving the preliminary injunction.

In addition, Montana argued that the parental-consent law is necessary to protect the rights of parents. Under the federal Constitution, the U.S. Supreme Court has ruled that parents have the right to make medical decisions for their children. Urging that parents’ federal rights trump minors’ state right to an abortion, Montana insisted that refusing to lift the preliminary injunction against the parental-consent law would violate the federal Constitution.

The state trial court ultimately ruled for Planned Parenthood and struck down the law — this time permanently.

Last August, the Montana Supreme Court upheld that ruling. The Montana constitution includes a provision that gives minors under 18 the same fundamental rights as adults throughout the state, “unless specifically precluded by laws which enhance the protection of” minors. The state high court acknowledged that parental consent protects a the rights of parents to direct health care for their children. But this is limited to “a right to parent free from state interference,” the court reasoned, not “to make it more difficult for a minor to exercise their fundamental rights.” And requiring parental consent for minors under 18 to get an abortion — while it might protect parents — would not “enhance the protection of” minors, the court concluded.

In Montana v. Planned Parenthood of Montana, the state asks the justices to grant review and reverse the Montana Supreme Court. Whatever the Montana constitution may protect — including, since November 2024, an explicit right to abortion — the state argues that parents’ rights under the federal Constitution to make medical decisions for their children reign supreme. Montana contends that lower courts are divided over the extent to which parents have “the right to know and participate in their minor child’s major healthcare decisions.”

Lurking in the background of the state’s argument are a host of other issues. In the coming weeks, the court is poised to issue a major ruling in United States v. Skrmetti on whether states can ban gender-affirming care for transgender teens. When the justices agreed to hear the case, they declined to take up the related question whether such bans violate parents’ rights to decide whether their children should receive such care.

Nonetheless, the court will issue a decision on the extent of parents’ rights to control what their children learn about sexuality and gender expression in another major case this term. In Mahmoud v. Taylor, the justices agreed to decide whether public schools violate parents’ religious rights when they refuse to give the parents the option to excuse their children from instruction using books supportive of the LGBTQ+ community.

A list of this week’s featured petitions is below:

T.W. v. New York State Board of Law Examiners
24-714
Issue: Whether a plaintiff who suffers ongoing harm caused by a state official’s prior unlawful conduct is subject to an “ongoing violation” of federal law and so able to seek an injunction under Ex parte Young, or that decision’s ongoing-violation requirement instead demands that a plaintiff show that the state official’s continuing actions are independently unlawful.

Warner v. Hillsborough County School Board
24-718
Issue: Whether, under 28 U.S.C. § 1654, children must hire an attorney to pursue their claims in federal court, or instead their parents may litigate pro se on their behalf.

The Hain Celestial Group, Inc. v. Palmquist
24-724
Issues: (1) Whether a district court’s final judgment as to completely diverse parties must be vacated when an appellate court later determines that it erred by dismissing a non-diverse party at the time of removal; and (2) whether a plaintiff may defeat diversity jurisdiction after removal by amending the complaint to add factual allegations that state a colorable claim against a non-diverse party when the complaint at the time of removal did not state such a claim.

Iowa Pork Producers Association v. Bonta
24-728
Issues: (1) Whether a party alleging that California’s Proposition 12 — which enacts a pork sales ban to regulate the manner in which pigs are housed in states across the country — discriminates against interstate commerce, both directly and under Pike v. Bruce Church, states a claim; and (2) whether lower federal courts evaluating fractured opinions from this court consider all justices’ opinions to determine the majority position on a legal issue, or instead are limited to consider only opinions concurring in the result.

Montana v. Planned Parenthood of Montana
24-745
Issue: Whether a parent’s fundamental right to direct the care and custody of his or her children includes a right to know and participate in decisions concerning their minor child’s medical care, including a minor’s decision to seek an abortion.

Coria v. Bondi
24-753
Issue: Whether the Immigration and Nationality Act, which states that that “no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed [specified] criminal offenses” but clarifies that this jurisdiction-stripping provision does not preclude review “of constitutional claims or questions of law,” bars judicial review of collateral facts that do not bear on the merits of a final order of removal itself.

Slaybaugh v. Rutherford County, Tennessee
24-755
Issue: Whether a common law privilege to access property categorically absolves the government’s duty of just compensation for property it physically destroys.

Wye Oak Technology, Inc. v. Republic of Iraq
24-759
Issues: (1) Whether, in a breach of contract case under the Foreign Sovereign Immunities Act’s third clause, it is sufficient to prove a “direct effect” in the United States applying traditional causation principles, or instead courts must make an additional finding that the contract at issue established or necessarily contemplated the United States as a place of performance; and (2) whether the “act performed in the United States” giving rise to jurisdiction in an action under the statute’s second clause must be an “act” by the foreign sovereign, or instead the statute’s text contains no such limitation.

Wade v. University of Michigan
24-773
Issue: Whether the Second and 14th Amendments allow a criminal ordinance that prohibits mere possession of firearms on an entire poorly-delineated university campus, except by permission of a single government official with unfettered discretion, which is granted only for “extraordinary circumstances.”

Urias-Orellana v. Bondi
24-777
Issue: Whether a federal court of appeals must defer to the Board of Immigration Appeals’s judgment that a given set of undisputed facts does not demonstrate mistreatment severe enough to constitute “persecution” under 8 U.S.C. § 1101(a)(42).

Jacobson v. Worth
24-782
Issue: Whether Minnesota’s statute limiting permits for public carry of pistols to those 21 and older comports with the principles underlying the Second Amendment.

Republican National Committee v. Genser
24-786
Issues: (1) What legal standard determines whether a state court’s interpretation of state election law exceeds the bounds of ordinary judicial review and therefore violates the elections and electors clauses of the federal Constitution; and (2) whether the Pennsylvania Supreme Court exceeded the bounds of ordinary judicial review and thereby usurped the Pennsylvania General Assembly’s plenary authority to prescribe “[t]he Times, Places, and Manner” for congressional elections and broad power to “direct” the “Manner” for appointing electors for president and vice president under those clauses, when it struck down a state statute directing that election officials “shall not” count an individual’s provisional ballot if they “timely received” a mail ballot cast by that person.

Missouri v. United States
24-796
Issues: (1) Whether federal courts can second-guess a state’s “reason” for exercising 10th Amendment authority; (2) whether the federal Constitution prohibits states from exercising 10th Amendment authority when motivated by a concern that a federal statute is unconstitutional; and (3) whether a state official is a proper defendant under Ex parte Young simply because the official is regulated by a statute, or instead the official also needs to possess authority to enforce the challenged law.