Constitutional Abortion Rights Amendment Cleared for Signature Gathering

After a week of legal scuffling, the campaign behind a constitutional amendment to explicitly protect abortion rights in Montana can begin collecting the tens of thousands of signatures it needs to put the proposal on the ballot this November. 

The green light for the now-officially dubbed Constitutional Initiative-128, much anticipated by sponsor group Montanans Securing Reproductive Rights, came after Secretary of State Christi Jacobsen delivered a sample petition with the court-issued ballot language on Friday afternoon — minutes before the deadline ordered by the Montana Supreme Court in a Thursday ruling.

The pro-initiative campaign, which includes Planned Parenthood Advocates of Montana, the ACLU of Montana and Forward Montana, said it is reviewing the petition and could launch its signature-gathering effort as soon as next week while criticizing recent procedural delays.

“With a petition review taking place, the next phase of signature collection is close. This process has been unnecessarily complicated, and rife with bad actors constructing ridiculous obstacles,” the Friday afternoon statement said. “Despite all of that, we are elated to be one step closer to signature collection. Montana voters deserve to make their voices heard on this critical issue, and today marks an important step in moving forward.”

The days and hours leading up to the group receiving the sample CI-128 petition were marked by a flurry of legal filings between MSRR, Jacobsen and Attorney General Austin Knudsen as attorneys fought over the language used to describe the initiative to voters and whether signature gathering should wait up to two weeks while a state legislative committee weighs in. 

Soon after state Supreme Court justices ordered Jacobsen to finalize that petition on Thursday, the state filed an objection attesting that Knudsen and Jacobsen had not been properly served with notice of the latest legal filings and that Jacobsen had not had a proper chance to respond. 

The court rejected those arguments in a ruling Friday morning, saying Jacobsen’s concerns about insufficient notice had been resolved by MSRR and that, under the relevant law, it did not have to wait for a response from Jacobsen before ordering her to comply.

“We do not find Jacobsen’s Objection well-taken. Our April 4, 2024 Order remains in effect. While Jacobsen’s Objection did not specify any relief, we conclude she is entitled to none,” the order stated.

The court’s decisions in the case this week also stirred up frustrations among Republican lawmakers. State law passed in recent years allows for a legislative review of proposed ballot initiatives after proposals are found to be “legally sufficient” by the attorney general. That review allows a committee of lawmakers to vote on whether to support the proposal, a determination that is then attached to the petition circulated during signature gathering. 

In the MSRR case, however, the Supreme Court determined that the legislative review process was not called for because Knudsen determined the initiative to be “legally insufficient” rather than “sufficient” — a decision the court overturned in March.

“We are bound by the plain meaning of the words used in the statute. Our role is ‘simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted,’” the justices wrote on Thursday.

Republican lawmakers raised passionate objections to that interpretation, first described in a footnote in a Monday order. Instead, Republican leadership opted to issue Jacobsen a subpoena for a copy of the proposed initiative and debate the initiative even as signature gathering proceeds. A Friday morning press release from Senate Republicans said the matter had been referred to the Law and Justice Interim Committee and scheduled for a discussion on April 18.  

“The Montana Supreme Court can say what it wants to say, but the Legislature is proceeding with our normal public process on the initiative,” said Rep. Amy Regier, R-Kalispell, who chairs the Republican-majority committee. “We are treating this proposed ballot initiative exactly the same as all other initiatives, which is the only fair and just thing to do.”

Secretary of state spokesperson Richie Melby said that by providing the sample petition to MSRR and handing over relevant documents to the Legislature, the office was complying with the court order, state law and lawmakers’ subpoena.

“Despite having to navigate the many complexities — including the rewritten rules, circumvention of branches, and lack of due process — surrounding what’s typically an ordinary procedure, as we’ve stated from the beginning, the Secretary of State’s Office is committed to complying with Montana law. With that and upon somewhat receiving the clarification we’ve sought all along, the Secretary of State has successfully complied with and fulfilled the Court’s Order and Legislative subpoena,” Melby said.

MSRR has until June 21 to collect upwards of 60,000 verified signatures from registered voters across 40 state House districts and submit them to county election officials. The campaign has said it will try to surpass that threshold to account for a margin of error. 

Montana’s campaign to protect abortion access through a ballot initiative or constitutional amendment is one of many playing out in states around the country, as the nation continues to deliberate the contours of reproductive rights since the overturning of Roe v. Wade by the U.S. Supreme Court’s 2022 Dobbs decision. While Montana has and maintains legal protections for abortion access under a 1999 state Supreme Court ruling, backers of CI-128 say the amendment will unequivocally enshrine the right in the Montana Constitution. 

Several similar initiatives and referendums have been successful in other states in the last two years. In Montana, voters previously rejected LR-131, a Republican-backed referendum to create a ‘Born Alive Infant Protection Act’ that critics said would have interfered in infant palliative care for newborns with terminal conditions. Although the measure wouldn’t have explicitly changed Montana abortion law, reproductive rights advocates hailed its defeat as a win for medical privacy.

Democrats around the country are throwing their weight behind getting a progressive abortion initiative on the ballot, generally seeing it as a way to help drive voter turnout. The lead lawyer for the MSRR campaign, Raph Graybill, is also a Democratic candidate for lieutenant governor running alongside gubernatorial hopeful Ryan Busse. 

MSRR spokesperson Mary Sullivan said Friday that the campaign intends to host an event in the coming days to mark the beginning of signature gathering. 

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