Like I Was Saying

Kansas and Our Constitution

Gianforte’s best chance for banning abortion in Montana still runs through the Legislature

By Kellyn Brown

Last week, Gov. Greg Gianforte asked the Montana Supreme Court to reconsider the Armstrong decision, a 1999 ruling that found the state’s Constitution protects residents’ right to abortion access. 

Since the U.S. Supreme Court overturned Roe vs. Wade, and with it federally protected access to abortion, Gianforte, a Republican, argued that Armstrong must be revisited: “It’s the Legislature’s prerogative to set policy regarding life, as it was for over a century until 1999. I urge the Montana Supreme Court to reconsider its role in light of Dobbs and return policymaking to the Legislature.”

In other words, the governor, who is anti-abortion, wants the Republican-dominated state Legislature, not the courts, to dictate how abortion access is decided in Montana. If that happens, abortion will likely be either outlawed or severely restricted. But the chances of the state Supreme Court agreeing with the governor, whose administration has openly criticized the judicial branch, are slim. Dobbs is unlikely to impact Armstrong. For now.  

Gianforte’s best chance for banning abortion in Montana still runs through the Legislature. It just takes a different route. For the Constitution to be changed, the governor needs a supermajority of lawmakers in the two chambers to put amendments before voters over Democratic opposition. Right now, Republicans need to pick up just two additional seats in the House or Senate to reach that magic 100-vote number. 

If that happens, they can propose to amend the “right to privacy” provision in the Constitution, which the state courts have found protects abortion. The question is whether Montana’s voters would pass the initiative. Which brings us to Kansas. 

The same day the governor urged the court to allow the Legislature to regulate access to abortion in our state, Kansans went to the polls to vote on whether to remove abortion protections from the Constitution in their state. Despite the fact that Republicans far outnumber Democrats in Kansas, the measure was soundly defeated 59%-41%. In the state’s moderate suburbs, it lost by an even larger margin.

Furthermore, the Kansas abortion vote took place in what was expected to be a low-turnout primary where far more GOP races were contested, which theoretically would provide an advantage to the anti-abortion side. 

Democrats and Republicans have cautioned against reading too much into the Kansas results and analysts have stressed that the state’s politics are more nuanced than the rest of the country realizes. Nonetheless, I imagine Gianforte and the Legislature took notice. After all, unless the state Supreme Court completely changes tack, it will be Montana residents, not politicians, who decide whether abortion is legal within our boundaries. 

Four other states – California, Kentucky, Michigan and Vermont – could have votes in November on abortion access. But it is also on the ballot here. If Montanans flip two Democratic seats to Republican, Gianforte will have the partisan supermajority he needs to singularly propose constitutional amendments, including those to ban abortion. And, if that happens, I would expect an initiative proposed here similar to the one in Kansas. 

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