Planned Parenthood of Montana v. State

Planned Parenthood of Montana v. State, 2015 MT 31 (Feb. 3, 2015) (Shea, J.; Cotter, J., dissenting) (4-1, rev’d)

Issue: Whether issue preclusion prevents the state from defending the constitutionality of two laws that require the involvement of a minor’s parent before the minor may obtain an abortion.

Short Answer: No, because the constitutional issues raised by the 2011 and 2013 parental-notification statutes are not identical to the constitutional issues raised by the 1995 statute and resolved in Wicklund v. State.

Reversed and remanded

Facts: Planned Parenthood of Montana filed suit challenging the constitutionality of (1) a 2011 law requiring parental notification before a minor may obtain an abortion, and (2) a 2013 law requiring parental consent before a minor may obtain an abortion. Plaintiffs argue a 1999 district court ruling, which held a similar 1995 law unconstitutional, precludes the state from defending the constitutionality of the 2011 and 2013 laws.

Procedural Posture & Holding: The state moved for partial summary judgment on the grounds that issue preclusion did not apply. The district court granted summary judgment to the plaintiffs, concluding the parties were the same the issues were identical, and the state had a full and fair opportunity to litigate these issues in Wicklund. The state appeals, and the Supreme Court reverses.

Reasoning: The Court applies a four-part test to determine whether issue preclusion applies. Balstrusch, 2006 MT 51. Because it holds the issues in the instant case are not identical to those in Wicklund, it does not address the remaining three elements.

The issues in Wicklund would be identical if the laws being challenged were substantively identical to the 1995 law found unconstitutional. But they are not. The 1995 Act applied to minors under 18, whereas the 2011 Act applies only to minors under 16. The 2011 Act is silent as to a minor’s burden of proof should she opt for judicial bypass of parental notice, and is therefore presumed to be a preponderance. The 1995 Act required parental notification, whereas the 2013 Act requires parental consent. Again, the 2013 Act requires a minor to prove her eligibility for an exemption by a preponderance rather than by clear and convincing evidence.

Justice Cotter’s Dissent: Justice Cotter contends that the differences between the 1995 statute and the 2011 and 2013 statutes are wholly immaterial in this context. The burden of proof on a minor seeking an exemption has no bearing on the constitutionality of the statutes.

Justice Cotter also contends the state did not argue in the district court that the elements of issue preclusion were not met, and that this Court should therefore refuse to review the appeal on those grounds.