Montana AG puts the brakes on proposed constitutional amendment, says it “creates an express right to abortion but denies voters the ability to express their views on the nuance of the right”

By Dave Andrusko

In a memorandum dated January 16, Montana Attorney General Austin Knudsen wrote that Ballot Measure #14, a proposed ballot initiative “spearheaded by Planned Parenthood Advocates of Montana, improperly ‘logrolls multiple distinct political choices into a single initiative’ and limits the state’s ability to protect public health and safety,’” Mara Silvers reported for the Montana Free Press.

In blocking Ballot Measure 14, for now, Knudsen wrote that it “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 11of the Montana Constitution,”

“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,”  Silvers explained.

Writing for the Idaho Capital Sun, Nicole Girten reported, “If this ballot initiative makes it before voters in 2024, the Montana Constitution would get a new section explicitly outlining the right to an abortion, as opposed to relying on the court’s interpretation of the state’s right to privacy in the constitution.”

“The right to an abortion is already protected in Montana under the state Supreme Court decision Armstrong vs. State, which was upheld earlier this year, under the court’s interpretation of the right to privacy in the constitution.”

Ok, if that is so, why the need for Ballot Measure #14?

Spokesperson for Planned Parenthood Advocates of Montana Christopher Coburn said in an interview if this ballot initiative were to pass, the right to abortion access would not rely on such interpretation and would be spelled out as a Constitutional right on its own.

“Courts wouldn’t have to interpret what the constitution might mean, because it would be spelled out in the constitution,” Coburn said.

Or, as the submitted language reads, “This constitutional amendment prohibits the government from denying or burdening the right to abortion before fetal viability.”

Assuming the Montana Supreme Court gives its blessing to the wording, to get on the ballot supporters of Ballot Measure #14 “will have to gather signatures from at least 10% of Montanans eligible to vote, with that number including 10% of the eligible voters in two fifths of legislative districts” to be on the 2024 ballot, according to Girten.

Judge Knudson concluded that Ballot Measure #14

changes the status quo. First, Section 36(1) unmoors the right to an abortion from fetal viability. Second, Section 36(2)’s “in no circumstance” clause prohibits any regulation of abortion care if the abortion provider deems the procedure medically necessary. This clause makes it so even regulations that serve a compelling state interest and are narrowly tailored to that interest cannot survive. This amends the Armstrong framework.

By removing current sideboards on what is medically necessary, the clause has the effect of rendering Section 36(2)’s first clause superfluous because the State can never enforce any regulations on abortion under the “in no circumstance” language. This language also elevates the right to abortion above other medical procedures so that abortion—alone—cannot be regulated.