Attorney General Blocks Constitutional Abortion Proposal

Backers of the initiative, Montanans Securing Reproductive Rights, have 10 days to challenge the decision in court

By Mara Silvers, Montana Free Press
Hundreds gathered for an abortion rights march in downtown Kalispell on May 14, 2022. It coincided with many protests around the country after a leaked majority draft opinion from the U.S. Supreme Court revealed a vote to overturn Roe V. Wade. Hunter D’Antuono | Flathead Beacon

Montana Attorney General Austin Knudsen has blocked a ballot proposal seeking to create a constitutional right to abortion, labeling the initiative “legally insufficient” after a required review by his office. 

In a memorandum dated Jan. 16, Knudsen said the proposed ballot initiative spearheaded by Planned Parenthood Advocates of Montana, Ballot Measure #14, improperly “logrolls multiple distinct political choices into a single initiative” and limits the state’s ability to protect public health and safety.

“Ballot Measure 14 creates an express right to abortion but denies voters the ability to express their views on the nuance of the right. This is classic logrolling and is prohibited by Article XIV, Section 11” of the Montana Constitution, Knudsen wrote.

The backers of the initiative, organized through the committee Montanans Securing Reproductive Rights, said they intend to challenge Knudsen’s decision in state court within 10 days, the time designated by the ballot proposal process. If the Montana Supreme Court rules in its favor, the coalition could soon begin collecting signatures to shepherd the initiative to the 2024 ballot.

In a statement Wednesday, an attorney for the ballot issue committee said Montanans Securing Reproductive Rights was disappointed by Knudsen’s decision and accused the attorney general of wrongly interfering in the ballot proposal process.

“In an attempt to keep an abortion rights initiative out of the hands of voters, Attorney General Austin Knudsen has used the power of his office to put personal politics before a fair process to allow Montanans the opportunity to secure their reproductive rights,” attorney Raph Graybill said in a statement provided to Montana Free Press Wednesday evening, adding that the committee was “confident” in the ballot language submitted in November. “Make no mistake: We will do everything we can, including taking legal action, to ensure Montanans have the opportunity to vote to secure their rights to make decisions about their own pregnancies, including the right to abortion care, in 2024.”

Spokespersons for the attorney general’s office did not respond to emailed questions Wednesday.

If advocates are successful in court and clear the other hurdles leading up to November, voters will get to weigh in on the constitutional initiative that, in the language drafted, “affirms the right to make and carry out decisions about one’s own pregnancy, including the right to abortion, in the Montana Constitution.”

The proposal continues to state that, if approved, the amendment “prohibits the government from denying or burdening the right to abortion before fetal viability. Additionally, the amendment ensures that the government cannot deny or burden access to an abortion when it is necessary to protect the pregnant patient’s life or health. This constitutional amendment prevents the government from punishing patients, health care providers, or anyone who assists someone in seeking reproductive care, including abortion care.”

In his legal review, Knudsen said the proposed ballot language would preclude elected officials from enacting reasonable regulations and restrictions on abortion when the practice is determined “medically necessary.”

“This clause makes it so even regulations that serve a compelling state interest and are narrowly tailored to that interest cannot survive,” Knudsen wrote. 

Knudsen also said that, as written, the constitutional amendment would preclude Montanans from passing future regulations on abortion that reflect their nuanced and complicated views on the issue, particularly in relation to fetal viability and various health risks to the pregnant patient.

“First, voters’ views on abortion change dramatically based on the specific timeframe of pregnancy in which the abortion occurs. Second, states commonly treat physical and psychological conditions differently. States also commonly use qualifying language to clarify when an abortion is medically necessary,” Knudsen wrote. “Ballot Measure 14 creates an express right to abortion but denies voters the ability to express their views on the nuance of the right.”

Knudsen’s office previously blocked a different ballot initiative related to the creation of a top-four primary system in Montana, citing similar concerns about “logrolling” multiple subjects into one proposal. The coalition behind that ballot initiative filed a legal challenge over Knudsen’s decision and was affirmed by the Montana Supreme Court within weeks, clearing the way for signature collection.

As of Wednesday, six proposed ballot initiatives have been allowed to begin collecting signatures, according to the Montana secretary of state’s website. None have yet met the threshold for inclusion in November’s election. 

This story originally appeared in the Montana Free Press, which can be found online at montanafreepress.org.

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