Abortion bill would require parental consent prior to abortion for a minor

Abortion opponents are supporting a bill which would require parental consent before a minor can get an abortion. The bill follows up on a ballot measure passed overwhelmingly by voters last fall. Legislative Referendum 120 requires parental notification prior to abortion for a minor under the age of 16. 70 percent of voters voted in favor of it and it is now state law.

The bill before the House Judiciary Committee takes the idea from LR 120 one step further. Under the new bill, HB 391,  a girl under the age of 18 would need a parent’s notarized written permission before seeking an abortion. A similar measure was passed by the Legislature in 1995, but was struck down by the Montana Supreme Court in ‘99.

Montana ACLU Public Policy Director Niki Zupanic says the court pointed to the state Constitution’s strong right to privacy, which can only be overridden by a compelling state interest. The court says minors have these rights too, unless the law in question is found to enhance their safety.

“It’s that…part that is really being challenged by the law that is before you today,” Zupanic told the committee,  “Does a consent requirement help minors or hurt minors?”

She says it was found to hurt minors more “by making them delay care or driving them into dangerous situations where they may harm themselves or seek an illegal abortion.”

Opponents to the new consent bill say over 90 percent of teens seeking an abortion now do consult with their parents. They say those who don’t may be afraid of parental abuse or may be pregnant due to the sexual abuse of a family member.

State Director of Montana Right to Life Greg Trude supports the consent bill. He says doctors need permission before performing other medical procedures.

“Suturs , a wart removed, a physical, a checkup, a Tylenol, they have to have parental permission,” he said.

Opponents say abortion falls under a different category.

“How many young women do you know that harm themselves because they took a tylenol, how many young women run away because of a wart, how many young women are thrown out of their homes, verbally abused or worse because of braces?” Asked Lindsey Love, speaking on behalf of Planned Parenthood Advocates of Montana.

The nonpartisan Legislative Services Division has submitted a legal note on the bill, saying the Supreme Court’s striking down of the similar 1995 bill brings up constitutional concerns about this bill too.

Montana Family Foundation President Jeff Lazloffy disagrees.He says the heavy majority voting in favor of last fall’s ballot initiative shows the public believes the Montana Supreme Court made a mistake.

“We had the vote on LR 120, the notification initiative, the will of the people was clearly articulated, and I believe that needs to be taken into account and I believe that proves the court went way beyond what the people wanted when they were interpreting the constitution,” he said.

The House Judiciary committee did not take a vote on the bill.


Judge rules Montana’s execution protocol unconstitutional

A judge declares Montana’s lethal injection method unconstitutional.

The ruling comes in the case of Ronald Allen Smith, the only Canadian on Death Row in the U.S.

District Judge Jeffrey Sherlock says Montana must change the way it executes prisoners following a lawsuit from the American Civil Liberties Union. The ACLU says the state’s lethal injection method amounts to cruel and unusual punishment under both the U.S. and Montana Constitutions. Judge Sherlock agrees some aspects do fail to pass constitutional muster. ACLU Staff Attorney Anna Conley says the ruling gives direction to the state executive and legislative branches.

“To get our protocol and our lethal injection methods on par with the rest of the nation,” Conley said.

“Judge Sherlock’s ruling upholds most of Montana’s lethal injection protocol,” said state attorney Mark Fowler, who argued before Judge Sherlock in favor of the procedure.

Fowler points out the ruling finds fault with three areas of the protocol, areas he says can be changed easily and quickly.

“And if done,” Fowler said. if those areas of concern are addressed, the modified protocol would not be found in violation of the Montana Constitution.”

The first ruling says the person putting in the IVs for whoever is being executed must have IV experience. The ruling now only requires EMT training. ACLU Attorney Conley agrees that could be a quick fix.

“So the protocol could be fairly, simply changed to require that experience,” Conley said.

Same with the second ruling, she says. The protocol now only requires the warden monitor the consciousness of the person being executed. The warden doesn’t need medical experience now, and the ruling says that experience must be present while the three injection procedure is carried out.

“This is an important role,” Conley said, “because the person is conscious after that first drug injection, then they will feel significant pain as heart attack and suffocation are induced for the subsequent the drugs.”

Sherlock’s third ruling strikes down that three drug protocol because it violates state law, which calls for a two drug protocol. But the ACLU’s Conley says that law was passed in 1987 and the procedure it calls for is outdated.

“So it’s unlikely that the DOC is going to comply with state law as it exists because it doesn’t really make scientific sense as it exists,” she said.

She says this will probably require legislative action. The legislature doesn’t convene again until January.

The case was originally brought by convicted double-murderer, Alberta-native Ronald Allen Smith. The state’s only other person on death row, William Gollehon, later joined the case.

For now, the ruling strikes down the state’s lethal injection process, putting on hold any possible executions.


ACLU tells District Court Judge Montana execution method is unconstitutional

ACLU Attorney Ron Waterman argues before District Judge Jeffrey Sherlock

The Montana chapter of the American Civil Liberties Union continues to argue for changes to the state’s execution policies. The ACLU argued before District Judge Jeffrey Sherlock Wednesday, saying the lethal injection procedure used by the Department of Corrections amounts to cruel and unusual punishment.

But the state defends the policy.

Helena Attorney Ron Waterman is representing the ACLU in their lawsuit over the states lethal injection policy. He begins by telling District Judge Jeffrey Sherlock the nation’s highest court treats execution policies with special care, because, as Waterman says, death is different.

“Once the execution occurs,” Waterman said, “if it occurs in a matter that is unconstitutional, there is no reprieve. There is no opportunity to undo that.”

Thus, he says, absolute detail must be spelled out in state execution policy to prevent unconstitutional suffering. ACLU officials say that’s not currently the case. The organization first filed its lawsuit in 2008 on behalf of Ronald Allen Smith—a Canadian double-murderer on Montana’s death row. The other death row inmate in the state, William Gollehon later joined the suit.

Montana uses a three drug cocktail for executions. The first renders the inmate unconscious, the second paralyzes the muscles, and the third induces a heart attack.

This system has caused problems in other states after several botched executions. If the first drug is not given just right, the inmate may seem unconscious and won’t be able to move, but will still be able to feel the second two drugs—which are reportedly very painful.

Ron Waterman says Montana is the only state not to require relevant medical training for those administering the execution.

“So we don’t know in Montana what it is that the individuals who are going into this execution chamber have in the way of background, have in the way of experience,” Waterman said.

The Montana Department of Corrections argues the execution method passes constitutional muster. Attorney for the state, Mark Fowler.

“The execution procedure is not a medical procedure,” said Mark Fowler, an attorney for the state.

Fowler says prior cases in the state have not set precedent saying medical professionals have to be involved in the process. Execution teams do receive training and oversight from physicians. He says there is no such thing as a perfect execution, but lethal injection is the most humane way of carrying out the act. And he says Montana has not had any history of problems under current policy.

“Frankly, without being facetious why wouldn’t we be trusted, what evidence is there that we can’t be trusted. We’ve had three flawless executions,” Fowler said.

There is no exact timeline on when Judge Sherlock will decide the case. A hold has been placed on executions until a decision is reached.



State Public Defender’s Office says it’s short on resources

The State Public Defender’s Office continues to tell state lawmakers it needs more money. A legislative committee heard a report today outlining how the office is short on resources. The public defenders will have to compete with many other requests for a piece of the state’s projected budget surplus.

Before the State Public Defender’s Office was created, people unable to afford their own defense received help at the County level.

The Montana chapter of the American Civil Liberties Union sued saying the county-controlled method was inconsistent—that some counties were not providing adequate public defense. So the Legislature created the State Office. It has been operating since 2006.

“But from day one the state has refused to put forward the money that’s necessary to make that commitment meaningful,” said ACLU Public Policy Director Niki Zupanic.

Both the ACLU and American University have released reports saying the state office is  not providing adequate services either. Now, the Public Defender’s Office itself has released a response to those reports that agrees in many ways.

“We are at a point where our ability to perform the mission of providing affective assistance of council becomes more and more in doubt because of lack of resources,” said the Chair of the State Public Defender Commission, Fritz Gillespie.

He says public defenders make far less than their peers in private practice—and they face unreasonable workloads. As an example, he says handling 400 misdemeanor cases a year is considered a national standard for a public defender. He then points to one Montana public defender who within six months had 260 active cases at once.

“I think it’s in trouble but I think it’s a lot better off than it was a year ago,” said Victor Republican Senator Jim Shockley.

He chairs the Law and Justice Interim Committee—which oversees the Public Defender’s Office. He says the office has been making great strides at the management level compared to where it was before.

“They didn’t know how they were spending their money, they weren’t keeping track of time properly on their attorneys. The managers at regional levels were not supervising properly,” Shockley said.

The ACLU’s Niki Zupanic agrees better management has led to a more efficient office. But she says that doesn’t entirely get to the heart of the matter—the caseloads are still going up and the funding is not keeping pace.

“The state needs to think again about the wisdom of trying to low-ball this office of trying to make this office either decrease services or try to do more with less. It’s not working, and it’s time for the state to match the commitment it’s made in creating this office with the dollars necessary to meet that constitutional obligation,” she said.

Thompson Falls Republican Senator Greg Hinkle calls the current situation at the Public Defender’s Office unacceptable.

“And I think the funding should be adequately increased to the public defenders office and our judicial system. So we may just need to make some cuts in another place and put the money over there,” Hinkle said.

Several Republicans on the committee also called for the Public Defender’s Office to start charging a small fee to those using the service as a way to raise funds—say $10 or $20.

The ACLU’s Niki Zupanic rejects that idea—saying the reason these people are using the Public Defender system is they don’t have the money for attorney’s fees.