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Montana Supreme Court rewrites abortion ballot language

by MARA SILVERS Montana Free Press
| April 2, 2024 8:35 AM

The Montana Supreme Court released its revised ballot language on Monday to describe a constitutional abortion rights amendment that voters may consider this fall, rejecting a version drafted last week by Attorney General Austin Knudsen.

The unanimous ruling by six justices moves the initiative’s supporters, Montanans Securing Reproductive Rights, closer to launching a massive signature-gathering campaign that must be completed before a June deadline. The group has been locked in litigation with Knudsen, an anti-abortion Republican, over the substance of the proposal and the official ballot language for nearly three months. 

But even with an official ballot statement authored by the court now in hand, the next steps for Constitutional Initiative 14 remain murky because of differing interpretations of the Supreme Court’s decision, leading to mixed reactions to the ruling Monday afternoon. While members of the MSRR campaign celebrated the decision and pledged to move toward gathering signatures, a spokesperson for the Montana secretary of state signaled that the proposal would likely be forwarded to the Legislature for further consideration.

“MSRR is proud to give Montana voters the opportunity to make their voices heard on a clear, fair ballot initiative that secures the right to make decisions about one’s own pregnancy, including the right to receive abortion care,” the sponsor coalition said in an emailed press release. “Montanans across the state are already raising their hands to volunteer.”

A spokesperson for the attorney general’s office, Emilee Cantrell, did not respond to requests for comment via email and voice messages Monday about the ruling and its implications. 

At issue is one footnote situated on the sixth of the 15-page ruling. Writing for the court, Justice Ingrid Gustafson acknowledged the need to quickly resolve litigation over the ballot language because of the time constraints on signature gathering. The court disagreed, however, about one procedural step outlined in state law: that proposals deemed legally sufficient by the attorney general are to be passed to an interim committee of lawmakers for a maximum 14-day review. 

In this case, Gustafson wrote, the Legislature’s consideration does not apply because Knudsen never found the proposal legally sufficient, determining the exact opposite in a January legal review later overturned by the Supreme Court. 

“The interim committee review process has thus not been triggered as the condition precedent — a finding of legal sufficiency by the Attorney General — was not met,” Gustafson wrote.

MSRR hailed that footnote as an interpretation that “a two-week interim committee period is not required in this instance, meaning that the measure can proceed to the next phase of signature collection without further delay.” 

But, in a Monday email to Montana Free Press, a spokesperson for Secretary of State Christi Jacobsen said that the court’s reference to the interim legislative committee was not in the last section of the ruling where orders are explicitly stated, instead referring to the footnote as “dicta,” or a non-binding legal observation.

“It appears the actual order from the court at the bottom was the ballot language, which we would then continue with our process, directed by law. The mention of interim committees appears to be in a footnote (dicta),” said spokesperson Richie Melby. 

Melby did not explicitly say whether or when the secretary of state planned to send the proposal to the Legislature for additional review. But in past cases where the attorney general’s finding of legal insufficiency was reversed by the Supreme Court, Melby continued, the secretary of state has still forwarded the proposal to the Legislature. 

“We plan to comply by ministerially processing the Order pursuant to the ballot language text of the order in the same manner as we have done with every other initiative that has been ordered similarly by the Supreme Court,” Melby said.

In a letter sent to the secretary of state’s office Monday afternoon, MSRR referenced the court ruling as evidence that the legislative review was not required and requested a sample of the petition. The campaign said it had not received a response from the office and had not determined its course of action if the Legislature’s review of the proposal commences.

Under the relevant part of state law, the legislative committee that considers the proposal can vote to approve or disapprove of it within 14 days. But an unsupportive vote does not have the power to block or stall the proposal further, and cannot be referenced in the ballot initiative’s statement of purpose or title.

In a statement Monday, Senate President Jason Ellsworth, R-Hamilton, said that he was “highly disappointed” in the court ruling, which he said “cuts the Legislature out of the process of reviewing this proposed initiative.”

“The lawmaking branch of government needs to have a voice in proposed laws regardless of where they originate or what legal technicalities the courts can find,” Ellsworth said, pledging to bring the issue before a new “judicial select committee” Republicans have promised to convene in response to recent court rulings. 

When signature gathering for the amendment does commence, the court-drafted ballot language voters will consider is similar to the original proposal introduced by the MSRR campaign, but with additional description about some of the amendment’s provisions, including a health care provider’s role in determining when abortion is medically necessary. The final language reads:

“CI-___ would amend the Montana Constitution to expressly provide a right to make and carry out decisions about one’s own pregnancy, including the right to abortion. It would prohibit the government from denying or burdening the right to abortion before fetal viability. It would also prohibit the government from denying or burdening access to an abortion when a treating healthcare professional determines it is medically indicated to protect the pregnant patient’s life or health.  CI-___ prevents the government from penalizing patients, healthcare providers, or anyone who assists someone in exercising their right to make and carry out voluntary decisions about their pregnancy.” 

Supporters of the initiative must submit more than 60,000 verified signatures from voters across 40 Montana House districts to county election administrators by June 21. To account for signatures that may not be verifiable, the campaign has said it intends to aim to collect tens of thousands more signatures above that threshold in the coming weeks. 

Mara Silvers is a reporter for the Montana Free Press, a Helena-based nonprofit newsroom, and can be reached at msilvers@montanafreepress.org.