Jonathan Ambarian

HELENA — The Montana Supreme Court says a proposed ballot measure that would specifically protect access to abortion in the state constitution can continue through the process, overturning a decision from Attorney General Austin Knudsen to block the measure.

In a ruling Monday, six of the seven justices agreed the measure — informally called Ballot Issue 14 — did not violate the state’s requirement that unrelated changes to the constitution be voted on separately.

“CI-14 specifies the right it creates and the limitations thereto, which constitutes a single change to the Constitution,” said the opinion, written by Justice Ingrid Gustafson.

The measure was submitted by the committee Montanans Securing Reproductive Rights and backed by Planned Parenthood Advocates of Montana.

It would add language to the state constitution, establishing “a right to make and carry out decisions about one’s own pregnancy, including the right to abortion.”

The text says the right to abortion couldn’t be “denied or burdened” except for a compelling government interest that “clearly and convincingly addresses a medically acknowledged, bona fide health risk.” It says the government could regulate abortion after fetal viability — when a doctor believes a fetus could likely survive outside the uterus — but not to deny or burden an abortion when needed to protect a patient’s life or health. Finally, it says the government couldn’t “penalize, prosecute, or otherwise take adverse action against someone” based on their pregnancy outcomes or for “aiding or assisting” someone else in exercising the rights in the amendment.

Knudsen’s office said in January that the proposed amendment would go further than the Montana Supreme Court’s 1999 Armstrong decision, which allowed pre-viability abortion based on the constitutional right to privacy. They argued the measure therefore made an implicit change to that existing right.

Gustafson’s opinion said that the argument didn’t address the question of whether the proposal was making two separate constitutional changes.

“These arguments instead go to how CI-14, if adopted, might be interpreted in future litigation and to Armstrong’s continued applicability on questions pertaining to the right to reproductive autonomy,” it said. “Such questions go beyond the Attorney General’s authority in making legal sufficiency determinations of ballot initiatives.”

The justices also rejected the attorney general’s argument that the measure was legally insufficient because it didn’t allow voters to make “independent political choices” on specific aspects of abortion rights.

“If CI-14 is placed on the ballot, voters may ultimately agree or disagree with the proposed change that CI-14 offers, but they will be able to understand what they are being asked to vote upon because CI-14 does not effect two or more changes that are not substantive and closely related,” Gustafson wrote.

The court ordered Knudsen to prepare ballot statements for the proposed amendment and forward them to the Secretary of State’s Office within five days — the next step toward allowing supporters of the measure to begin collecting signatures.

Justice Laurie McKinnon wrote her own concurring opinion, saying she agreed with the overall decision but wanted to ensure the court followed a clear framework in rulings on legal sufficiency.

Justice Jim Rice, the one member of the court who did not join in the majority opinion, wrote a dissent, in which he argued the attorney general’s decision was justified.

He said the ballot measure essentially created new definitions for some established legal concepts and created “internal conflict” about how to balance the government’s authority to regulate and a patient’s right to make decisions.

“The purpose of this review is to ‘avoid voter confusion . . . by ensuring proposals are not misleading or the effects of which are concealed or not readily understandable,’” Rice wrote. “While we have not previously held this purpose to be a standalone basis to reject an initiative, I believe it is clear that the provisions of CI-14 are not readily understood, have effects that are concealed, and would result in voter confusion this review is designed to prevent.”