The Montana
Supreme Court on Monday advanced a stalled ballot measure that aims to add the explicit right to access an
abortion to the state’s Constitution. The measure had been tied up in court over the language
Republican Attorney General Austin Knudsen drafted to appear on ballots to describe it — wording supporters of the issue called “argumentative, inaccurate and prejudicial.” The court, in a 6-0 order with one justice not participating, sided with Montanans Securing Reproductive Rights, the group supporting the measure known as Constitutional Initiative 14. Under the court's order, ballot language written by the court that is similar to what MSRR originally proposed will be sent to the Secretary of State. “The Attorney General’s ballot statement would prevent a voter from casting an intelligent and informed ballot as it does not inform the voter as to CI-14’s provisions but instead focuses on topics, such as parental notice and medical malpractice, that CI-14 does not discuss. We therefore conclude the Attorney General’s ballot statement does not meet the requirements,” wrote Justice Ingrid Gustafson. In a footnote to the order, Gustafson also wrote that a review process by an interim legislative committee, in which the committee would take a vote on if it supported the measure or not, had not been triggered. That’s because to start the review process, the attorney general must find the ballot issue legally sufficient. Knudsen found the measure legally insufficient back in January, but the court overrode him in March. In that order, the court directed Knudsen to either forward the ballot language as-is to the
Secretary of State or revise it and send his own, which he did last week. MSRR sued over Knudsen’s language, which made claims about prohibiting parental notice of a minor’s abortion, barring the state from enforcing medical malpractice standards, increasing the number of taxpayer-funded abortions and more. Knudsen has been vocal in his opposition to abortion access and in separate cases has asked the state Supreme Court to reverse existing precedent that allows for pre-viability abortions in Montana. While the interim legislative committee could not stop the measure from advancing, its vote would appear on forms that signature gatherers would use to collect enough signatures to try to qualify the measure for the ballot. The deadline to submit signatures is in June, and MSSR had been concerned about meeting that timeline because of the legal delays CI-14 has faced. In filings last week, MSRR said if the court did not act by April 10, it would not be able to collect enough signatures because of the 14-day review process by lawmakers. Pre-viability abortions are legal in Montana under a previous state Supreme Court decision that found the Montana Constitution’s right to privacy allows access. But the ballot initiative from MSRR would amend the state Constitution by adding a new section that says a person has the right to make and carry out decisions about their own pregnancy and that the government may regulation abortion access after fetal viability so long it does not deny abortions that are medically indicated to protect the life or health of the pregnant person. It would also say the government shall not penalize people based on their pregnancy outcome, nor may it penalize a person aiding or assisting another person in determining their pregnancy outcome. In court filings, MSRR said Knudsen's language would confuse voters because it contained “a series of hypothesized effects divorced from the actual proposal" and veered into issues not covered by the ballot measure. The court agreed, with Gustafson writing that Knudsen's language "does not fairly state to the voters what is proposed within the initiative." While Knudsen had argued that the measure was flawed because it did not define key terms, the court responded that "we do not find MSRR’s ballot statement was fatally deficient for failing to explicitly alert voters that any term not defined in CI-14 was not defined in CI-14." The court also rejected Knudsen's statement that CI-14 would preclude the state from enforcing certain medical standards or policies, writing that "CI-14 neither precludes the state from enforcing medical malpractice standards nor from using pregnancy outcomes to enforce other state policies." In another footnote, Gustafson also rejected a claim from Knudsen that the measure created a right to a post-viability abortion not recognized before in Montana. "This assertion is incorrect, as the right to post-viability abortion 'where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother' was recognized in Montana for at least 50 years," Gustafson wrote. The court did agree with Knudsen on two points — that the measure does more than affirm existing rights and that MSSR's ballot statement does not alert voters that the determination of when an abortion is determined "necessary" to protect a pregnant person's life or health is in the hands of their health care provider and not statutorily defined. "Although this court will not invalidate a ballot statement simply because a better one could be written, we agree the ballot statement should make clear that CI-14 intends to leave medical determinations to medical providers, rather than to the government," Gustafson wrote. The court's ballot language includes that clarification. The Montana State News Bureau has reached out for comment from Montanans Securing Reproductive Rights and Knudsen. In a statement Monday,
Senate President Jason Ellsworth, R-Hamilton, said he was frustrated with the court's move to not have an interim legislative committee weigh in. “I’m highly disappointed in this ruling from the Supreme Court that cuts the Legislature out of the process of reviewing this proposed initiative. The lawmaking branch of government needs to have a voice in proposed laws regardless of where they originate or what legal technicalities courts can find," Ellsworth said. "Developing a fix for this exclusion of the Legislature can be another task for the new judicial select committee I’m currently putting together.”