Amicus Curiae Brief — Montana, et al., Petitioners v. Planned Parenthood of Montana, et al.

No. 24-745

In the Supreme Court of the United States

STATE OF MONTANA,

v.

Petitioner,

PLANNED PARENTHOOD OF MONTANA, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF MONTANA

BRIEF OF FLORIDA AND 16 OTHER

STATES AND THE ARIZONA LEGISLATURE AS AMICI CURIAE IN SUPPORT OF

GRANTING THE PETITION

JAMES UTHMEIER

Attorney General

JEFFREY PAUL DESOUSA*

Acting Solicitor General

DAVID M. COSTELLO

NATHAN A. FORRESTER

Chief Deputy Solicitors

General

Office of the Florida

Attorney General

The Capitol, PL-01

Tallahassee, FL 32399

jeffrey.desousa

MARCH 31, 2025

@myfloridalegal.com

Counsel for Amici Curiae

(additional signatories listed in addendum)

TABLE OF CONTENTS

Table of Authorities.................................................... ii

Interest of Amici Curiae..............................................1

Summary of Argument................................................2

Argument .....................................................................3

I.

States have a compelling interest in

ensuring that parents learn of and

participate in their children’s major medical

decisions ............................................................3

A. There are compelling policy reasons for

ensuring that parents can learn of and

participate in a child’s major medical

decisions.......................................................4

B. That compelling interest accords with

America’s common-law tradition of

respecting parental rights...........................8

C. The

Montana

Supreme

Court

misapprehended these principles .............11

II.

The

Montana

Supreme

Court’s

misapprehension of the State’s compelling

interest infected all facets of its decision

below ...............................................................14

Conclusion .................................................................17

Additional Signatories ..............................................19

ii

TABLE OF AUTHORITIES

Cases

Brown v. Ent. Merchants Ass’n,

564 U.S. 786 (2011)........................................ 8, 9, 10

Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah,

508 U.S. 520 (1993)................................................ 14

Coleman v. Thompson,

501 U.S. 722 (1991)................................................ 16

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022)................................................ 11

Goble v. Mont. State Fund,

325 P.3d 1211 (Mont. 2014) ................................... 17

Hodgson v. Minnesota,

497 U.S. 417 (1990)................................................ 10

In re C.H.,

683 P.2d 931 (Mont. 1984)..................................... 17

Meyer v. Nebraska,

262 U.S. 390 (1923)............................................ 5, 10

Michigan v. Long,

463 U.S. 1032 (1983).............................................. 16

Osborne v. Ohio,

495 U.S. 103 (1990)..................................................5

Parham v. J.R.,

442 U.S. 584 (1979)...................................... 5, 10, 13

Pierce v. Society of the Sisters of the Holy Names of

Jesus & Mary,

268 U.S. 510 (1925)........................................ 5, 6, 10

Planned Parenthood of Cent. Mo. v. Danforth,

428 U.S. 52 (1976).................................................. 11

Reed v. Town of Gilbert,

576 U.S. 155 (2015)................................................ 14

iii

Roe v. Wade,

410 U.S. 113 (1973)................................................ 10

Stanley v. Illinois,

405 U.S. 645 (1972)................................................ 10

Students for Fair Admissions v. Pres. & Fellows of

Harvard Coll.,

600 U.S. 181 (2023)................................................ 14

Troxel v. Granville,

530 U.S. 57 (2000).......................... 2, 3, 6, 10, 11, 12

Washington v. Glucksberg,

521 U.S. 702 (1997)................................................ 11

Wisconsin v. Yoder,

406 U.S. 205 (1972)................................................ 10

Statutes

Mont. Const. art. II, § 4 ....................................... 15, 17

Mont. Code Ann. § 50-20-509(5)(a) ........................... 13

Mont. Code Ann. § 50-20-509(5)(b) ........................... 13

U.S. Const. amend. XIV, § 1 ..................................... 12

Treatises

1 William Blackstone, Commentaries on the Laws of

England (1753) ........................................................8, 9

2 Samuel Pufendorf, The Whole Duty of Man According to the Law of Nature (1735)..............................8, 9

2 James Kent, Commentaries on American Law

(1873) .......................................................................8, 9

1

INTEREST OF AMICI CURIAE ∗

The State of Florida along with Alabama, Arkansas, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Nebraska, North Dakota, Oklahoma, South

Carolina, South Dakota, Texas, Utah, West Virginia,

and the Arizona Legislature respectfully submit this

brief as amici curiae in support of petitioner, the State

of Montana.

Like Montana, amici States have an interest in

promoting and enforcing the right of parents to learn

of and participate in the major medical decisions of

their children. Amici States represent a significant

portion of American parents who must make decisions

every day about the welfare of their children. Clarification from this Court as to the constitutional scope of

parents’ decision-making power is imperative so that

they can properly fulfill their duty to the maintenance

of their children.

Through its interpretation of the federal Constitution, the Montana Supreme Court has shrunken the

scope of parental rights for Montanan parents. Like in

many other States, Montana’s positive law—here, the

Consent Act—grants protections to parents that extend even beyond those constitutional rights that this

Counsel of Record for both parties were notified of Florida’s

intent to file this amicus curiae brief on March 25. Though notice

was given less than 10 days before the filing of this brief, see Sup.

Ct. R. 37.2, no party has opposed Florida’s filing. Specifically, Petitioner has consented to the filing, and Respondents have taken

no position. Nor will any delay in notifying the parties prejudice

Respondents, as their deadline to file a response is still a month

away on April 30, 2025.

∗

2

Court to date has acknowledged. In failing to appreciate the States’ compelling interest in safeguarding parental rights, the Montana Supreme Court flouted

history, tradition, and precedent. If more widely

adopted, that court’s narrow view of the States’ compelling interest would threaten parents nationally

who seek judicial enforcement of their decision-making rights.

SUMMARY OF ARGUMENT

The Montana Supreme Court held that because

the “fundamental right to parent” does not include the

right to know about and participate in a child’s medical decisions, the Consent Act could not withstand

strict scrutiny under the federal and state constitutions. Pet. App. 37a–38a. As that court saw it, a

State’s interest in safeguarding parental rights extends merely to the promotion of healthy families, not

to furthering “the care, custody, and control of their

children” in the context of abortion. Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality op.). That holding contorts federal law all the way down.

Montana has asked the Court to grant certiorari to

decide the scope of “a parent’s fundamental right to

direct the care and custody of his or her children,” Pet.

i, a right that sounds in this Court’s substantive due

process jurisprudence. That is a pressing question.

But equally important, and supplying an additional

basis for review, is the Montana Supreme Court’s

skewed approach to the federal Equal Protection

Clause. By recognizing only the State’s compelling interest in promoting a narrow concept of family unity,

the Montana Supreme Court overlooked that States

have historically preserved the rights of parents to

3

oversee the upbringing of their children for the very

reason that minors lack the reason and judgment necessary to make pivotal life decisions. That understanding dates to Blackstone and beyond, and represents “an enduring American tradition.” Troxel, 530

U.S. at 66 (plurality op.). Parents’ involvement is especially critical when it comes to major medical treatments, and even more so when the treatment is abortion—a procedure that both ends the life of a preborn

person and is linked to increased risks of depression,

suicide, and anxiety among formerly pregnant girls

and young women.

The Montana Supreme Court’s myopic view of the

State’s compelling interest infected its analysis of

both the state and federal issues litigated below. The

Court should decide the question presented in Montana’s petition, but it should further hold that States

have a compelling interest in ensuring that parents

are notified of, and participate in, a child’s decision to

undergo an abortion, and remand to the state court to

determine how that federal-law holding alters its view

of the state constitutional issues.

ARGUMENT

I.

States have a compelling interest in ensuring that parents learn of and participate in their children’s major medical decisions.

After determining that the Consent Act implicated

both the privacy clause of Montana’s Constitution and

the Equal Protection Clauses of the Fourteenth

Amendment and Montana Constitution, the Montana

Supreme Court held that the Act failed strict scrutiny

4

because the law was not narrowly tailored to a compelling interest. Pet. App. 3a, 18a–19a, 35a–36a.

Though the court paid lip service to a parent’s “fundamental right to parent,” it assumed that Montana had

a “compelling state interest” in protecting those values only if doing so would “promot[e],” in the court’s

view, “healthy families.” Id. at 30a–32a. That

cramped reading of the State’s interest affected the

court’s understanding of how the scrutiny analysis

should shake out here, both as a matter of state and

federal law.

The Court should correct that misconstruction of

the State’s compelling interest. States have a compelling interest in ensuring that parents learn of and participate in a child’s major medical care, full stop. The

Consent Act equips parents with the knowledge that

their children seek to undergo an abortion, a major

medical procedure, and grants them a say in that decision. That in turn aids parents in constructing

healthy family dynamics and safeguarding their children from psychological harm. And that interest accords with the American common-law tradition of respecting parental rights. In overlooking these principles, the Montana Supreme Court erred as a matter

of federal law.

A. There are compelling policy reasons for

ensuring that parents can learn of and

participate in a child’s major medical decisions.

A State’s interest in promoting the parental right

to know about and participate in their child’s medical

decisions is compelling. Beyond doubt, States have a

compelling interest in “safeguarding the physical and

5

psychological wellbeing of a minor.” Osborne v. Ohio,

495 U.S. 103, 109 (1990). This interest can play out in

different ways. Sometimes it entails direct regulation

of the sorts of medical procedures a child can undergo.

See United States v. Skrmetti, No. 23-477. Such regulations are justifiable because the State may sometimes conclude, as a broad policy matter, that certain

types of procedures are unsuitable for a minor. Other

times, like here, the State’s interest in protecting children instead means empowering parents to participate in the major medical decisions of their children.

Indeed, a State may reasonably conclude that the government is ill-equipped to make decisions at the family level, and so state laws have historically recognized

the broad right and duty of parents to handle familial

decision making.

This Court has repeatedly acknowledged the important role of parents in this regard. “Most children,

even in adolescence, simply are not able to make

sound judgments concerning many decisions, including their need for medical care or treatment.” Parham

v. J.R., 442 U.S. 584, 603 (1979) (citing

“a tonsillectomy, appendectomy, or other medical procedure” as examples). While a “child may balk at hospitalization or complain about a parental refusal to

provide cosmetic surgery,” a parent typically will

know better and should have the “authority to decide

what is best for the child.” Id. at 604. “Parents,” this

Court has said, “can and must make those judgments.” Id. at 603; see also Meyer v. Nebraska, 262

U.S. 390, 400 (1923) (extolling the “natural duty” of

parents to provide “children education suitable to

their station in life”); Pierce v. Society of the Sisters of

the Holy Names of Jesus & Mary, 268 U.S. 510, 534–

6

35 (1925) (explaining that parents must “direct the

upbringing” of “children under their control”).

Children, in other words, are not “mere creature[s]

of the state.” Pierce, 268 U.S. at 535. Rather, the State

relies principally on parents to “prepar[e]” children for

the “obligations” of adulthood. Troxel v. Granville, 530

U.S. 57, 65–66 (2000) (plurality op.).

Medical and social-science literature supports this

view. Research shows that children are not able to “deliberate maturely” towards their own best interests.

Ferdinand Schoeman, Parental Discretion and Children’s Rights: Background and Implications for Medical-Decision-Making, 10 J. Med. & Phil. 45, 46 (1985).

Because a child’s prefrontal cortex is undeveloped and

because children lack life experience, they cannot

fully appreciate the implications of their decisions.

Adele Diamond, Normal Development of Prefrontal

Cortex from Birth to Young Adulthood: Cognitive

Functions, Anatomy, and Biochemistry, in D. Stuss &

R. Knight, eds., Principles of Frontal Lobe Function

466 (2002) (noting that the prefrontal cortex takes

over two decades to reach full maturity), https://tinyurl.com/4j5xvbpa. All parents intrinsically know

this. And so, it is up to them to teach children basic

lessons like the benefits of eating vegetables or doing

their homework. Applied to a major medical decision,

children are woefully unprepared to reliably exercise

mature judgment.

The risks to children of making their own major

medical judgments are particularly acute in the context of abortion—a decision that even adults struggle

with. Parental involvement in abortion decisions is

7

critical because of the psychological trauma associated with abortion. Maureen Curley, An Explanatory

Model to Guide Assessment, Risk and Diagnosis of

Psychological Distress, 4 Open J. of Obstetrics & Gynecology 944, 945 (2014). Patients who have had an

abortion often report sadness, grief, and feelings of

loss, id.; David C. Reardon, The Abortion and Mental

Health Controversy: A Comprehensive Literature Review of Common Ground Agreements, Disagreements,

Actionable Recommendations, and Research Opportunities, 6 SAGE Open Med. 1, 2 (2018), https://tinyurl.com/2cwwy7wc, potentially leading to depression, suicide, and anxiety, see Curley, supra, at 945.

These adverse psychological effects are attributable to

the stress of the abortion itself, aggravation of prior

existing mental health issues, and conflicting

thoughts about having the abortion at all. Id.

Sadly, the “highest rates” of abortion-related posttraumatic stress disorder are “observed in women

aged 15–24 years.” Huiling Liu et al., Impact of the

Intensive Psychological Intervention Care on PostTraumatic Stress Disorder and Negative Emotions of

Teenage Female Patients Seeking an Induced Abortion, 14 Frontiers in Psychiatry 1, 5 (2023), https://tinyurl.com/3n976wrj. And studies report that “young

women who had abortions appeared to be at moderately increased risk of both concurrent and subsequent mental health problems.” David M. Fergusson,

et al., Abortion in Young Women and Subsequent Mental Health, 47:1 J. Child Psych. & Psychiatry 16, 23

(2005). Given the risk of post-abortion trauma, and

since children have a lowered ability to make sound

judgments, parents have an increased interest in participating in the decision.

8

In short, States have an overwhelming interest in

ensuring that parents are both armed with the information necessary to guide their children in making

major medical decisions like abortion, and empowering parents to ultimately decide.

B. That compelling interest accords with

America’s common-law tradition of respecting parental rights.

From the above, the State’s compelling interest in

parental notification and consent is clear enough. But

history, tradition, and precedent only underscore the

importance of parental rights in our society.

Because of the vulnerabilities inherent in youth,

parents have long enjoyed broad rights to direct the

upbringing of their children. As seventeenth-century

commentators recognized, children do not understand

“how to govern themselves.” 2 Samuel Pufendorf, The

Whole Duty of Man According to the Law of Nature

202 (1735). Their innate naivete, as Blackstone said,

leaves them prone to “injur[y].” 1 William Blackstone,

Commentaries on the Laws of England 447 (1753).

Their “wants and weaknesses” thus “render it necessary that some person maintain them” until adulthood. 2 James Kent, Commentaries on American Law

190 (1873); see also Blackstone, Commentaries at 447;

Pufendorf, Whole Duty of Man at 202; Brown v. Ent.

Merchants Ass’n, 564 U.S. 786, 828–29 (2011)

(Thomas, J., dissenting).

Parents have traditionally been understood as “the

most fit and proper person[s]” for that task. Kent,

American Law at 190. The common law therefore im-

9

posed a “duty o[n] parents” to “maintain[] and educat[e]” their children “during the season of infancy

and youth.” Id. By “bringing [children] into the world,”

parents assumed a “duty . . . to provide for the[ir]

maintenance.” Blackstone, Commentaries at 447. Parents were expected, as “natural guardians,” to “mak[e]

reasonable provision for their [children’s] future usefulness and happiness in life.” Id. So serious was the

task that early municipal law held parents liable for

shirking their duties. Id.; Kent, American Law at 190–

91.

To help parents carry the weighty burdens placed

on them, the common law equipped parents with

equally robust parental rights. “[H]ousehold heads”

were empowered to “speak for their dependents in

dealings with the larger world,” Toby L. Ditz, Ownership and Obligation: Inheritance and Patriarchal

Households in Connecticut, 1750–1820, 47 Wm. &

Mary Q. 235, 236 (1990), and parents enjoyed the

“right . . . to govern their children’s growth,” Brown,

564 U.S. at 828 (Thomas, J., dissenting). As a consequence, minors remained subject to their parents’

“power” until they reached the age of majority. Blackstone, Commentaries at 452–53. During that period,

parents could “order[] the Actions of their Children for

their Good,” even over the child’s objection. Pufendorf,

The Whole Duty of Man at 202. Children largely could

not “participate in public life” without their parents’

approval, Ditz, Ownership and Obligation at 237—

from enlisting in the military, see Act of Mar. 16, 1802,

2 Stat. 132, 135, to participating in a lawsuit, see

Blackstone, Commentaries at 464, to accessing information, like books, see Brown, 564 U.S. at 831–32

(Thomas, J., dissenting). And at all times, children

10

“were expected to be dutiful and obedient” to their

parents, id. at 830 (Thomas, J., dissenting), “subject

[always] to the authority of household heads,” Ditz,

Ownership and Obligation at 237.

Precedents of this Court reflect that historical respect for parental rights. Those rights, the Court has

said, are “perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel, 530

U.S. at 65 (plurality op.). Because children are “not

able to make sound judgments concerning many decisions,” the Court has understood our Constitution to

incorporate “Western civilization concepts of . . . broad

parental authority over minor children.” Parham, 442

U.S. at 602–03. Expounding on that authority, it has

acknowledged a parent’s right to direct children’s education, see Meyer, 262 U.S. at 400; Pierce, 268 U.S. at

534–535; their religious upbringing, see Wisconsin v.

Yoder, 406 U.S. 205, 214 (1972); and their relationship

with their parent, see Stanley v. Illinois, 405 U.S. 645,

651 (1972). Most relevant here, it has long heralded a

parent’s right “to make decisions concerning the care,

custody, and control of their children,” Troxel, 530

U.S. at 65–66 (plurality op.)—“including their need for

medical care or treatment,” Parham, 442 U.S. at 603.

And the Court has gone so far as to pronounce that a

State’s “strong and legitimate interest in the welfare

of its young citizens” is enough to justify “state-imposed requirements that a minor obtain his or her parent’s consent before undergoing an operation.” Hodgson v. Minnesota, 497 U.S. 417, 444–45 (1990) (plurality op.). 1

1 To be sure, in the era when this Court had located a right

to abortion in substantive due process, see Roe v. Wade, 410 U.S.

11

To date, the Court has situated its recognition of

parental rights in the doctrine of substantive due process, Troxel, 530 U.S. at 65, reflecting the verdict that

those rights are “deeply rooted in this Nation’s history

and tradition.” Washington v. Glucksberg, 521 U.S.

702, 720–21 (1997).

In sum, our historical and legal traditions make

clear that the State has a compelling interest in ensuring parents’ involvement in their children’s medical care.

C. The Montana Supreme Court misapprehended these principles.

The Montana Supreme Court acknowledged that

“[p]arents do have a fundamental right to parent,”

Pet. App. 37a (citing Troxel, 530 U.S. 57), and that

“the promotion of healthy families is undoubtedly a

compelling state interest,” id. But it misconstrued the

principles discussed above and how they apply here.

In evaluating Montana’s claims of a compelling state

interest, for example, the court reasoned that “any parental right that exists within this framework is a

right to parent free from state interference, not a right

to enlist the state’s powers to gain greater control over

a child or to make it more difficult for a minor to exercise their fundamental rights.” Pet. App. 38a (emphasis added). And as to the State’s asserted interest in

maintaining healthy families, the Montana Supreme

Court thought that giving a “veto power” to parents

113 (1973), it struck down parental-consent laws in the abortion

context. See Planned Parenthood of Cent. Mo. v. Danforth, 428

U.S. 52, 72–75 (1976). But Danforth was based on Roe, id. at 74,

75, which this Court has now repudiated. See Dobbs v. Jackson

Women’s Health Org., 597 U.S. 215, 302 (2022).

12

over their children’s medical decisions would result in

a family that “fundamentally is in conflict.” Id.

That was wrongheaded in three ways. First,

though a parent’s constitutional rights, enshrined in

substantive-due-process holdings like Troxel, Meyer,

and Pierce, have thus far been understood to operate

against the government, not private actors, see U.S.

Const. amend. XIV, § 1 (“[N]or shall any State deprive

any person of life, liberty, or property, without due

process of law.” (emphasis added)), a State’s compelling interest is in no way limited to vindicating the

constitutional rights of parents. Far from it, a State is

entitled to conclude, as Montana has through the Consent Act, that its positive law should extend additional

protections to parents—protections that operate

against even private action. Put differently, a State

can decide that medical providers should be required

to consult a parent before offering life-altering services, even if the Constitution itself might not require

that doctors do so.

Such was Justice Scalia’s view in Troxel. “[A] right

of parents to direct the upbringing of their children,”

Justice Scalia wrote, “is among the ‘unalienable

Rights’” described in the Declaration of Independence

and “retained by the people.” Troxel, 530 U.S. at 91

(Scalia, J., dissenting) (quoting U.S. amend. IX)

(cleaned up). Justice Scalia did not think that parental rights, as “unenumerated right[s],” were enforceable by judges; he thought it “entirely compatible with

the commitment to representative democracy” that

the scope of parental rights would be sketched out in

“legislative chambers” and “electoral campaigns.” Id.

at 91–92. Montana has done that here, entrenching in

13

its positive law certain natural rights that make up

“an enduring American tradition.” Id. at 66 (plurality

op.) (cleaned up).

Second, the Montana Supreme Court missed the

mark with its concern that giving parents a “veto

power” over the medical decisions of their children

would result only in the further “fractur[ing]” of the

family unit. Pet. App. 37a–38a. When a parent and

child disagree—or would disagree if only the parents

were aware—over the proper medical course, they are

already in a sense “fractured,” as the Montana Supreme Court acknowledged. Pet. App. 38a. Montana’s

law, then, addresses who in that circumstance has the

final say in deciding whether to undergo the medical

procedure. It stands to reason that parents, as the mature party, should sign off on critical medical decisions. And to the extent that the child can make a

showing of “physical abuse, sexual abuse, or emotional abuse” by a parent, or that parental consent “is

not in the best interests of the minor,” the child can

obtain a judicial waiver of the law’s parental-consent

requirement. Mont. Code Ann. § 50-20-509(5)(a)–(b).

Third, and even spotting the Montana Supreme

Court its views on “fractured” families, the court seriously overvalued the importance of family unity relative to the importance of empowering parents to supervise their children’s medical treatment. Parents

and children disagree all the time. Cf. Parham, 442

U.S. at 603 (noting that a child “may balk” at a parent’s decisions for the child). Such disagreement inheres in the parent/child relationship. But parents, by

virtue of their age and experience, are better positioned to make reasoned judgments, and thus “can

14

and must make those judgments.” Id. And historically, the common law has entrusted parents to make

difficult decisions for their children, even when those

children disagree. Supra Section I.B.

In concluding otherwise, the Montana Supreme

Court wrongly discounted the State’s compelling interest in promoting a parent’s authority to oversee

major medical decisions for his or her child.

II.

The Montana Supreme Court’s misapprehension of the State’s compelling interest

infected all facets of its decision below.

Montana has asked this Court to decide “[w]hether

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.” Pet. i. That is a pressing question. Yet this case also presents the matter of whether,

aside from any constitutional right of parents, the

State has a compelling state interest in promoting, as

sound policy, parental rights within its borders. That

issue has relevance any time a court is called upon to

assess whether the State’s infringement of a constitutional right is justified. See, e.g., Reed v. Town of Gilbert, 576 U.S. 155, 163–64 (2015) (applying strict scrutiny in the free-speech context); Students for Fair Admissions v. Pres. & Fellows of Harvard Coll., 600 U.S.

181, 206–07 (2023) (equal protection); Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.

520, 546 (1993) (free exercise). An opinion by this

Court reversing the state court’s analysis of the equalprotection question would provide Montana effective

relief on the Fourteenth Amendment issue while also

15

requiring the state court to reconsider its assessment

of even the state constitutional questions.

Below, the Montana Supreme Court concluded

that the Consent Act violated both the privacy clause

of the state constitution and the Equal Protection

Clause of the Fourteenth Amendment. Pet. App. 19a,

22a–23a, 42a–43a. By two separate routes, the Montana Supreme Court arrived at the conclusion that

strict scrutiny applied. The court first found that the

Consent Act implicated Montana’s privacy clause. Pet.

App. 21a–22a (calling the state “right of privacy” a

“fundamental right” that “must be reviewed under a

strict scrutiny analysis”). It then found that the Act

implicated the federal and state Equal Protection

Clauses. Pet. App. 22a–25a (invoking “the Fourteenth

Amendment” and “Article II, Section 4, of the Montana Constitution” and holding that the “the classification discriminates against minors who choose a particular type of medical care—an abortion”—and therefore requiring the court to “apply a strict scrutiny

analysis”). Either theory, the court thought, required

it to apply strict scrutiny. But when the court turned

to scrutiny, it did not distinguish between strict scrutiny’s application to the state rights, on the one hand,

and the federal right, on the other. It instead held—in

a single section of its opinion collectively addressing

the “Application of Strict Scrutiny to a Minor’s Rights

of Privacy and Equal Protection,” Pet. App. 25a—that

the State had failed to show that the Consent Act was

“narrowly tailored to further [] a compelling state interest,” Pet. App. 38a–39a.

As a result, the Montana Supreme Court’s analysis

of the State’s compelling interest for the two claims

16

was inextricably intertwined. Accordingly, any decision from this Court confirming that States have a

compelling interest in promoting parental rights to

their full extent would necessarily impact both the

lower court’s equal-protection analyses and its analysis of the state right to privacy. Put another way, this

Court’s conclusion that Montana has a compelling interest in not only facilitating healthy family dynamics

but also entrusting to parents the responsibility to

oversee their children’s medical decisions will require

reconsideration below of both the federal and state

law determinations.

For those reasons, the state court’s privacy-clause

holding does not constitute an adequate and independent state ground that might otherwise deprive

this Court of jurisdiction. See, e.g., Michigan v. Long,

463 U.S. 1032, 1038–42 (1983). Because the state

court knotted the federal and state claims together

when conducting scrutiny, its assessment of the statelaw question is “interwoven with the federal law” such

that this Court has jurisdiction to consider the federal

claim. Id. at 1040; Coleman v. Thompson, 501 U.S.

722, 729 (1991) (noting that the “independent and adequate state ground doctrine is jurisdictional”). At a

minimum, it certainly is not “clear from the face of the

opinion” that the Montana Supreme Court viewed

strict scrutiny as operating differently in the privacyclause setting as contrasted with the federal equalprotection setting. Long, 463 U.S. at 1040–41. 2

2 Moreover, though at times the Montana Supreme Court’s

equal-protection inquiry appeared to revolve around state law,

Pet. App. 14a–15a, 42a–43a (finding, for instance, that “the Con-

17

The Court should take this opportunity to address

the Montana Supreme Court’s erroneous understanding of the State’s compelling interest.

CONCLUSION

The petition for a writ of certiorari should be

granted.

sent Act violates the Constitution of the State of Montana”), elsewhere the court clarified that it was considering an equal-protection theory under both “the Fourteenth Amendment to the

United States Constitution[] and Article II, Section 4 of the Montana Constitution,” id. at 22a. And the Montana precedents the

court cited for the equal-protection framework it applied below

themselves turned on the Equal Protection Clause of the Fourteenth Amendment. Id. at 23a (citing Goble v. Mont. State Fund,

325 P.3d 1211 (Mont. 2014); In re C.H., 683 P.2d 931 (Mont.

1984)). Indeed, the Montana Supreme Court has previously described the Fourteenth Amendment and Article II, Section 4 of

the Montana Constitution as “similar and provid[ing] generally

equivalent but independent protections.” C.H., 683 P.2d at 938.

And while the court here remarked that “Montana’s Constitution

affords significantly broader protections than the federal constitution,” it identified the source of those broader protections as

being “the minors’ rights provisions and the right of privacy” in

the Montana Constitution, not the state equal protection clause.

Pet. App. 15a.

18

Respectfully submitted,

MARCH 31, 2025

JAMES UTHMEIER

Attorney General

JEFFREY PAUL DESOUSA*

Acting Solicitor General

DAVID M. COSTELLO

NATHAN A. FORRESTER

Chief Deputy Solicitors

General

Office of the Florida

Attorney General

The Capitol, PL-01

Tallahassee, FL 32399

jeffrey.desousa@

myfloridalegal.com

Counsel for Amici Curiae

(additional signatories listed in addendum)

ADDITIONAL SIGNATORIES

STEVE MARSHALL

Attorney General

State of Alabama

LIZ MURRILL

Attorney General

State of Louisiana

STEVE MONTENEGRO

Speaker of the Arizona

House of Representatives

ANDREW BAILEY

Attorney General

State of Missouri

WARREN PETERSON

President of the Arizona

Senate

TIM GRIFFIN

Attorney General

State of Arkansas

RAÚL R. LABRADOR

Attorney General

State of Idaho

THEODORE E. ROKITA

Attorney General

State of Indiana

BRENNA BIRD

Attorney General

State of Iowa

KRIS KOBACH

Attorney General

State of Kansas

MICHAEL T. HILGERS

Attorney General

State of Nebraska

DREW H. WRIGLEY

Attorney General

State of North Dakota

GENTER DRUMMOND

Attorney General

State of Oklahoma

ALAN WILSON

Attorney General

State of South Carolina

MARTY J. JACKLEY

Attorney General

State of South Dakota

KEN PAXTON

Attorney General

State of Texas

DEREK BROWN

Attorney General

State of Utah

JOHN B. MCCUSKEY

Attorney General

State of West Virginia