Constitutional Abortion Backers File Lawsuit to get on November’s Ballot

The lawsuit refutes Attorney General Austin Knudsen’s findings that the proposed ballot language is ‘legally insufficient’

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

Backers of a constitutional initiative to legally protect abortion access have petitioned the Montana Supreme Court to allow their proposal on the 2024 ballot after Montana’s attorney general labeled the measure “legally insufficient.” 

Montanans Securing Reproductive Rights, the political committee supporting the constitutional abortion amendment drafted by Planned Parenthood Advocates of Montana, filed its legal challenge Friday, 10 days after Attorney General Austin Knudsen shot down the measure in his required legal sufficiency review

In the lawsuit, attorneys for the group refuted Knudsen’s findings that their proposal “logrolls multiple distinct political choices into a single initiative” and “limits the ability of the state to provide for public health and safety.” Rather, attorneys for the amendment argued, Constitutional Initiative 14, or CI-14, “plainly affects one topic and does so in a single, comprehensive way: establishing and outlining the right, then securing it from government interference.”

“It is no secret that CI-14 is, in part, a response to the sustained attack on abortion rights in Montana by the government, under laws that purport to do exactly what Subsection (3) prohibits: penalize, prosecute, and adversely affect those who exercise their rights or those, like healthcare providers, who assist,” the lawsuit states.

In an order delivered hours after the lawsuit was filed on Friday and signed electronically by Justice Jim Shea, the state Supreme Court gave the attorney general’s office until Monday, Feb. 5, to submit a response to the legal challenge.  

If approved by voters in November, the language of the constitutional initiative would add the express right in the Montana Constitution to “make and carry out decisions about one’s own pregnancy, including the right to abortion.” The amendment would allow the government to regulate abortion after the point of fetal viability unless a treating medical provider determines that terminating a pregnancy “​​is medically indicated to protect the life or health of the pregnant patient.” 

The proposal would also prohibit the government from penalizing or prosecuting a person for the outcome of their pregnancy, and similarly protect any person from adverse government action “for aiding or assisting another person in exercising their right to make and carry out decisions about their pregnancy with their voluntary consent.”

In the Jan. 16 finding, authored by Deputy Solicitor General Brent Mead, the attorney general’s office said that the ballot proposal distills many complexities of abortion policy, effectively creating “an express right to abortion but [denying] voters the ability to express their views on the nuance of the right.”

The lawsuit on Friday says that reasoning “stretches the bounds of credulity,” and, if allowed to stand by the state Supreme Court, could allow the attorney general to “adopt a new, lawless standard that permits the A.G. to block virtually any constitutional amendment that, in his own subjective determination, could benefit from more ‘nuance.’”

In the legal review, the attorney general’s office also pointed out that the proposed ballot language doesn’t match the parameters of Montana’s longstanding legal precedence allowing people to seek an abortion under the existing constitutional right to privacy. That 1999 court decision in Armstrong v. State, Knudsen’s office said, allows regulations of abortion when they serve “a compelling state interest and are narrowly tailored.” But by giving deference to a medical provider’s determination of what is “medically necessary,” the attorney general continued, those reasonable regulations cannot survive. 

Attorneys for Montanans Securing Reproductive Rights asked the court Friday to bypass considering “unripe theories” about how the proposed amendment does or does not square with the Armstrong ruling.

“The A.G.’s arguments on this score are not a basis to keep CI-14 from Montana voters, and the court should decline the A.G.’s implicit invitation to weigh in on whether and how CI-14 would interact with the Armstrong decision or the pending cases in Montana that rely on it,” the lawsuit states.

The legal filing also challenged Knudsen’s comments attached to a $0 fiscal note prepared by the governor’s Office of Budget and Program Planning. While the attorney general concluded that the ballot proposal’s resulting cost to the state cannot be determined, he also opined on possible future costs to Montana’s state health care plan, Montana Medicaid and costs from increased future litigation if the constitution was amended.

Attorneys for the constitutional initiative asked the Supreme Court to strike those arguments entirely, saying the attorney general’s comments amounted to “advocacy” and exceeded his authority. 

If the court rules in its favor, ballot issue supporters asked the court to direct the attorney general to send the proposed ballot statements to the Montana secretary of state within five business days. If allowed to advance to the next stage, the ballot committee must collect signatures of at least 10% of the qualified electors in the state, based on the last general election, in order to qualify for the November ballot.

In another recent case over a constitutional amendment to change the state’s political primary process, Knudsen’s office also accused drafters of logrolling multiple provisions into one proposal. The Montana Supreme Court ultimately ruled against that interpretation, allowing backers of the top-four primary measure to gather signatures to put the issue before voters. 

The attorney general’s office has not yet filed a legal response to Friday’s lawsuit.

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

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