Attorney general: Proposed Montana abortion ballot issue not legally sufficient

Blair Miller

(Daily Montanan) The Montana Attorney General’s Office, led by Republican Austin Knudsen, this week told proponents of a proposed 2024 ballot issue seeking to affirm the right to abortion in the Montana Constitution that the proposal was legally insufficient.

The office, which is required by law to review all proposed initiatives and constitutional amendments, said Ballot Measure #14 “logrolls multiple distinct political choices into a single initiative in violation of Article XIV, Section 11, and limits the ability of the State to provide for public health and safety.” The Montana Free Press first reported the outcome of the legal sufficiency review on Wednesday.

The measure was proposed in November by Montanans Securing Reproductive Rights, which is led by Planned Parenthood Advocates of Montana, as a way to ensure that abortion rights are protected in Montana. An attorney for the group said Thursday it would continue to fight to get the measure approved for signature gathering.

“Make no mistake: We will do everything we can, including taking legal action, to ensure Montanans have the opportunity to vote to secure their rights to make decisions about their own pregnancies, including the right to abortion care, in 2024,” said Raph Graybill, an attorney representing Montanans Securing Reproductive Rights.

In recent years, Republican Gov. Greg Gianforte’s administration has signed several bills passed by Republican lawmakers seeking to restrict abortion access despite the Montana Supreme Court’s decision in Armstrong v. State of Montana, which protects abortion access via the privacy protections contained in the state constitution. Gianforte signed seven abortion-related bills from the 2023 session, some of which have been at least temporarily blocked by courts.

Ballot Measure #14’s language says it would, if passed, affirm the right to make and carry out decisions about one’s own pregnancy, including abortion, in the state constitution. It would also prohibit the government from denying or putting burdens on abortion access before a fetus is viable.

And it would ensure the government could not deny or add burdens to obtaining an abortion when it is necessary to protect the mother’s health or life and keep practitioners safe from punishment for performing abortions.

“This constitutional amendment prevents the government from punishing patients, healthcare providers, or anyone who assists someone in seeking reproductive care, including abortion care,” the proposed measure reads.

But in the legal sufficiency review memo that Knudsen’s office sent to the proponents, Deputy Solicitor General Brent Mead said the measure violates the state’s separate-vote provision and would keep the state from providing for Montanans’ public health and safety – a reason the administration has previously cited for attempting to restrict abortion access in Montana.

Mead wrote in the memo that the proposed initiative “makes it so even regulations that serve a compelling state interest and are narrowly tailored to that interest cannot survive.” The memo says the proposal also puts abortion above other medical procedures so that it can’t be regulated – which Mead said “creates an express right to abortion but denies voters the ability to express their views on the nuance of the right.”

Further, Mead wrote that the proposal’s language “injects significant uncertainty” into how the state could regulate abortion and said he believed it raised questions about the function of medical licensing boards, malpractice lawsuits, and the state’s ability to pass new laws in the realm of abortion.

“The choice to preclude the State from being able to enforce valid health and safety regulations is different than the choice to expand abortion rights,” Mead wrote to the proponents.

He said the Attorney General’s Office believes the multiple statements in the proposed initiative mean they should only be allowed on the ballot as separate issues.

“The contradictory language in the various subsections creates a quandary over the actual decision in front of the voters. As stated, Section 36[3] sweeps broadly on issues of enforcement. Section 36[1], [2] amend the existing interpretation of Article II, Section 10,” Mead wrote. “At minimum, voters are presented with multiple amendments and because of that, Ballot Measure 14 violates Article XIV, Section 11 of the Montana Constitution.”

In December, Office of Budget and Program Planning Director Ryan Osmundson prepared a fiscal note saying the measure’s fiscal impact would cost the state nothing through June 2025, but it said the fiscal impact could not be determined beyond that.

The note said the measure “would likely lead to increased litigation” but did not elaborate. The note also said the measure could render several bills passed during the 2023 session and signed by Gianforte unconstitutional. And finally, it said the measure, if passed, could require Montana Medicaid to cover “broader categories of abortion” than is currently allowed, but the extent of the fiscal impact could not be determined by the Department of Public Health and Human Services.

Graybill, the attorney for the group, wrote to Mead on Jan. 11 – before Mead’s determination was written – saying the fiscal note prepared by Osmundson contained “improper advocacy” in violation of state statute.

Graybill said the fiscal note overlooks other fiscal analyses of some of the 2023 abortion legislation, which found the bills would cost the state money, in order to argue the proposed initiative would lead to increased litigation.

“As discussed, if CI-14 were to pass, the DOJ could see a decrease in litigation costs, DPHHS could save money and staff time by foregoing the contemplated additional review of Medicaid claims, and Legislative Services Division could see a decrease in staff time spent drafting, reviewing, and analyzing unconstitutional bills restricting abortion,” Graybill wrote. “These effects on revenue are just as, if not more, likely to occur than the speculative or inaccurate assertions by some state agencies below the line of the fiscal note.”

On Thursday, Graybill said in a statement that the organization was disappointed by the Attorney General’s Office finding of legal insufficiency and pledged to continue to try to get the proposal on November’s ballot.

“In an attempt to keep an abortion rights initiative out of the hands of voters, Attorney General Austin Knudsen has used the power of his office to put personal politics before a fair process to allow Montanans the opportunity to secure their reproductive rights,” he said. “MSRR is confident in the legality of ballot initiative language that was submitted in 2023.”

The group has 10 days to challenge the Attorney General’s Office’s decision with the Montana Supreme Court. If the court sides with the group, it would be able to begin collecting signature to try to get the measure on the ballot in November.

Late last year, a group of former Republican lawmakers and central committee members successfully challenged Knudsen’s office’s finding of legal insufficiency for Ballot Issue #12, a top-four primary initiative, which the office had also said violated the state’s separate-vote provision.

But the Supreme Court disagreed with that finding. In a unanimous decision, the justices said the changes proposed in the initiative go together and don’t require voters to make separate choices.

According to the Secretary of State’s Office, six proposed initiatives have been approved for signature gathering so far, but none have yet qualified for the November ballot. Seven others have been withdrawn or were found to be legally insufficient by Knudsen’s office.