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Judge continues block on parental consent law for minors seeking abortion

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Abbott's courtroom

Tanis Holm, an attorney for Planned Parenthood of Montana, speaks in Judge Chris Abbott's courtroom in Helena on Tuesday. At left are Solicitor General David Dewhirst and Deputy Solicitor General Brent Mead, representing the state.

Montana’s parental consent law for minors seeking abortions will continue to be blocked — as it has for about nine years — while the legal challenge against it plays out.

Back in 2013, the Montana Attorney General who backed the law agreed to a preliminary injunction halting its enforcement in an effort to avoid a hectic legal schedule and because everyone expected a quick resolution in the case.

But that’s not what happened in Planned Parenthood’s lawsuit against the state of Montana, which instead spent much of the last decade bouncing from judge to judge and through different court districts, and even saw the death of a plaintiff.

The lack of any meaningful progress led now-Attorney General Austin Knudsen to earlier this year withdraw his office’s consent to the preliminary injunction. But Helena Judge Chris Abbott in an order Thursday said that doesn’t change the circumstances of the block on enforcing the law.

“The court recognizes the legitimate frustration about how long it has taken to answer the question of whether these statutes are constitutional,” Abbott wrote. “For better or worse, however, the state agreed to the rules of the game when it started, and under the facts here, the passage of time alone is not enough to justify changing those rules as the ninth inning approaches.”

The lawsuit from 2013 challenged both the state’s Parental Notice of Abortion Act of 2011, which was a voter-approved referendum, and the Parental Consent for Abortion Act of 2013, which was passed by lawmakers that year with a July 2013 effective date.

Planned Parenthood sued shortly after the consent legislation became law in an attempt to overturn both it and the notification act. The organization also sought to temporarily block the consent act’s enforcement while the legal battle progressed.

Both sides of the case agreed to the preliminary injunction to avoid having to prepare for arguments on that issue because they expected at the same time to also be preparing for courtroom hearings on the full lawsuit in a condensed timeline before the law was set to kick in.

“Surely, neither the state nor Planned Parenthood anticipated in the summer of 2013 that their agreed preliminary injunction would remain in effect through the summer of 2022 or beyond,” Abbott wrote in his Thursday order.

But in agreeing to the preliminary injunction nine years ago, Abbott wrote, the state assumed the risk that getting a final resolution in the case could take longer than expected.

“The state may have had good reasons for making that bargain, but it is nevertheless the bargain they struck,” Abbott wrote.

In his order, Abbott also reiterated that he expects to resolve the overall case soon, and a hearing is scheduled in June. He also pointed out that if he lifted the injunction, Planned Parenthood would likely appeal and that process might take longer than getting a ruling on the full case.

“Unlike the past three years of inaction, an end to this court’s proceedings is now in sight,” Abbott wrote. "The prospect of indefinite limbo has ended.”

The Attorney General's Office on Friday criticized the actions of the former officeholder in agreeing to the preliminary injunction in 2013.

“The previous administration should not have consented — for even a day — to enjoin this commonsense law that protects young girls from sexual assault and abuse," spokesperson Emilee Cantrell said in an email Friday. "We’re glad that Judge Abbott will finally rule on the merits of the case in June after nearly a decade of inaction from numerous other Montana judges.”

In a statement, Planned Parenthood of Montana welcomed the order.

​​“It is a relief that access for minors remains unchanged while the merits of this case are considered. Although we are disappointed by the continued politicking surrounding access to reproductive health care, especially for those who already face barriers to care including young people, PPMT will continue to comply with the notification provision,” president and CEO Martha Fuller wrote.

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