Montana Supreme Court allows abortion ballot proposal to proceed

After two months of litigation and consideration, the Montana Supreme Court on Monday overruled the state attorney general’s January finding that a constitutional initiative to explicitly protect abortion rights is “legally insufficient,” resolving one of many obstacles to the proposal being placed before voters on the November ballot.

The ruling, signed by six of the court’s seven justices and authored by Justice Ingrid Gustafson, found that the proposal submitted last fall by Planned Parenthood Advocates of Montana did not improperly “logroll” distinct subjects together and that Attorney General Austin Knudsen exceeded his authority by concluding that the proposal would confuse voters and conflict with other sections of the Constitution — a conclusion that could have blocked the proposal from proceeding.

“CI-14 effects a single change to the Montana Constitution on a single subject: the right to make decisions about one’s own pregnancy, including the right to abortion. If CI-14 is placed on the ballot, voters may ultimately agree or disagree with the proposed change that CI-14 offers, but they will be able to understand what they are being asked to vote upon because CI-14 does not effect two or more changes that are not substantive and closely related,” Gustafson wrote. “If CI-14 is adopted, questions may arise as to its interpretation, but this is true of the entire text of the Montana Constitution and its subsequent amendments, and processes exist to resolve those questions accordingly.”

Gustafson’s 16-page ruling also found that Knudsen was legally incorrect to write a fiscal note to accompany the proposal when the state’s Office of Budget and Program Planning found that the initiative’s fiscal impact could not be determined. 

“OBPP determined that there will be no fiscal impact in fiscal years 2024 and 2025 and it concluded that it was unable to determine any fiscal impact beyond that. Without a determination that a proposed ballot initiative will have a fiscal impact, no fiscal statement by the Attorney General is either warranted or provided for by statute,” Gustafson wrote.

Gustafson was joined in the ruling by Chief Justice Mike McGrath and justices Jim Shea, Dirk Sandefur and Beth Baker. Justice Laurie McKinnon authored a concurring opinion, which was also joined by Shea and Sandefur. Justice Jim Rice dissented.

While the ruling settles an initial round of opposition to putting the abortion question before voters, the proposal’s future is far from clear. In order to gain access to the ballot, the campaign backing the initiative, Montanans Securing Reproductive Rights, must finalize ballot statement language with the attorney general’s office, pass that language through a legislative committee review, and collect and submit more than 60,000 verified signatures to county election administrators before June 21. 

The court’s ruling declined to preemptively review the group’s ‘yes’ and ‘no’ ballot statements, which initiative backers had requested in the hope of avoiding another round of legal disagreements with the attorney general’s office. Rather, the court directed Knudsen to “prepare a ballot statement consistent with the applicable statutory requirements and forward the statement to the Montana Secretary of State within five days of this Opinion and Order.”

Martha Fuller, CEO of Planned Parenthood Advocates of Montana and spokesperson for the ballot initiative campaign indicated a degree of uncertainty about the group’s next steps in an emailed statement Monday night.

“We are pleased to see the Montana Supreme Court conclude that not only is the initiative language constitutionally sound, but also that the Attorney General (AG) cannot attach a misleading fiscal note when there is no fiscal impact,” Fuller stated. “We urge the AG to approve the clear, neutral ballot statements submitted by MSRR with haste to avoid more unnecessary litigation. We will continue to do everything we can to bring Ballot Issue #14 to Montana voters in November.”

Emilee Cantrell, a spokesperson for the attorney general’s office, did not respond to a request for comment on the court’s ruling or a question about Knudsen’s response to the five-day timeline before publication Monday.

The strategy of asking voters to decide whether abortion should be legal has played out in several states since the U.S. Supreme Court rolled back the longstanding federal right to abortion with the Dobbs decision in 2022. Since then, at least five states have solidified reproductive rights protections through constitutional amendments or ballot proposals. 

Montana is among the latest states to consider similar strategies, despite longstanding legal precedent that abortion access is protected under the 1972 Montana Constitution’s right to privacy. 

In Montana and other states, including South Dakota and Florida, reproductive rights ballot campaigns are seen as a boon for Democrats and strongly supported by progressive political groups. Montanans Securing Reproductive Rights has already received thousands of dollars from Planned Parenthood Advocates of Montana and $73,000 worth of in-kind polling and research from the liberal dark money group the Sixteen Thirty Fund, a 501(c)4, according to the committee’s first campaign finance filing. The electoral influence of reproductive rights groups continues a trend that has emerged in elections since the Dobbs decision. In-state and out-of-state defenders of abortion access surged to support Gustafson’s bid for reelection in 2022. 

Montana’s abortion ballot proposal has also garnered attention and opposition from local and national anti-abortion groups. The America Center for Law and Justice, the Montana Family Foundation and Susan B. Anthony Pro-Life America filed an amicus brief with the Montana Supreme Court opposing the initiative, arguing that the language bundles multiple distinct issues and that, if allowed on the ballot and approved by voters, “the lives and safety of unborn children and their mothers will be left unprotected in the regime of unregulated abortion the initiative will establish.”

That filing echoed points that Knudsen’s office presented in recent months of litigation. In legal filings, Knudsen’s team stated that C1-14 “improperly contains multiple amendments that present separate and distinct decision points for voters,” an idea he first laid out in his office’s finding of legal insufficiency. 

“While many voters agree that abortion should be available in some form or to some extent, voters’ views diverge with respect to that form or extent,” the state wrote in an early February brief. “For example, voters’ opinions on the timeframe in which abortion should be permitted vary widely. Voters should be able to choose where such legal lines are set, but CI-14 deprives them of the ability to make these distinct political choices independently.”

The state also argued that the proposed language conflicts with the current framework for legal abortion in Montana and said that parts of the proposed amendment create confusion about how and when government intervention in abortion is allowable. 

While the first section of the proposed amendment states that denying or burdening the right to an abortion is only justified by a “compelling state interest,” the state wrote, a latter section prohibits regulation after fetal viability if the treating health care professional has determined an abortion to be “medically indicated to protect the life or health of the pregnant patient.” 

That latter section, Knudsen’s office argued, “effectively forbids government intervention even if it has a compelling interest. Whether abortion should be an absolute right immune from government regulation is separate from the question of whether abortion should be an explicit constitutional right to begin with, and CI-14 as presented prevents voters from making these distinct choices separately as well.” 

The court’s Monday ruling called parts of Knudsen’s reasoning about potential constitutional conflicts “speculation.” 

“First, we note that the Attorney General offers no theory as to how Subsection 3 would substantively change any other constitutional provision,” Gustafson wrote. “The Attorney General’s speculation as to how Subsection 3 might affect statutes and regulations does not provide a basis for him to determine that CI-14 is legally insufficient, as it exceeds his authority in making such determination.”

Justice Rice, the lone dissenter on the court, argued that Knudsen’s assessment that the ballot proposal includes multiple subjects was correct, in part because of its stipulations for abortion before and after viability.

“I read CI-14 as making two or more changes to the Constitution that are substantive in nature, as each Subsection provides a new and at least partially independent substantive concept,” Rice wrote. “But more, CI-14 alters, or defines in a new way, existing legal concepts and creates an internal, unresolved conflict within its provisions. As such, it is virtually impossible, in my view, for a voter to fully comprehend the effects of its multiple provisions.”  

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