Group asks Montana SupCo to overturn legal finding for abortion initiative

Blair Miller

(Daily Montanan) The group seeking to get a constitutional amendment on this November’s ballot to enshrine abortion access in the Montana Constitution petitioned the Montana Supreme Court on Friday to overturn Attorney General’s Office’s finding of legal insufficiency for the measure.

The attorney representing Montanans Securing Reproductive Rights, Raph Graybill, asked the court to overturn Deputy Solicitor General Brent Mead’s finding from earlier this month and to direct the Attorney General’s Office to send the ballot statements for Ballot Measure 14 to the Secretary of State so the group can start collecting signatures.

Hours after the petition was filed, the Supreme Court ordered the Attorney General’s Office to respond to the group’s request by Feb. 5.

The court overturned a similar decision from the Attorney General’s Office on a proposed top-four primary ballot measure in November, allowing Montanans for Election Reform Action Fund to start collecting signatures on Ballot Measure 12.

In a Jan. 16 letter, Mead told Montanans Securing Reproductive Rights, a group led by Planned Parenthood Advocates of Montana, that the proposed ballot measure “logrolls multiple distinct political choices into a single measure” in violation of the single-vote requirement, and limits the state’s ability “to provide for public safety.”

The proposed ballot measure would affirm the right for a person in Montana to make their own decisions about their pregnancy in the state constitution; prohibit the government from denying or burdening abortion access before a fetus is viable; and would prevent the government from putting restrictions on people obtaining abortions when it is necessary to protect the mother’s health, or to keep practitioners safe from punishment.

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

Mead’s memo said the proposal would disallow the state from putting regulations on abortion, denies voters the ability to express their views on the nuance of abortion, and said the subsections of the proposal should actually be separate issues.

Office of Budget and Program Planning Director Ryan Osmundson also prepared a fiscal note for the proposal that said the measure would cost the state $0 during the next two years and that the fiscal impact could not be determined beyond that.

But it included notes about the measure likely leading to increased litigation without further comment and raised the fact that Gov. Greg Gianforte had signed new abortion restriction bills in the 2023 session without noting that some of the bills at hand were enjoined by courts.

It also included an assessment from the Department of Public Health and Human Services that Montana Medicaid, which is required to cover abortions in certain instances, might have to expand the types of abortions covered. That fiscal impact note led the Attorney General’s Office to the decision that if the proposal were sufficient, it should include a fiscal statement, according to court filings.

Graybill had argued even before Mead’s memo was issued that the fiscal note contained “improper advocacy” in determining the fiscal impact of a measure and overlooked claims that could be made to the contrary of what was below the analysis line in the fiscal note.

Graybill made many of the same arguments to the Supreme Court in Friday’s filing.

He wrote that the proposed initiative is in fact a single proposal that has parts, each of which are “essential” to the overall policy. The subsections “operate in unison to establish, outline and secure the right,” and it would take “a feat of rhetorical fancy” to conceive otherwise, the filing said.

The challenge said the Attorney General’s Office’s legal insufficiency finding “stretches the bounds of credibility” less than two months after the Supreme Court overturned a similar finding in the top-four primary initiative challenge.

“Ignoring (Montanans for Election Reform), the A.G. invites this court to adopt a new, lawless standard that permits the A.G. to block virtually any constitutional amendment that, in his own subjective determination, could benefit from more ‘nuance,’” Graybill wrote. “Neither the text of Article XIV, § 11 nor the decisions of this Court support such an expansive role for the A.G.”

The Supreme Court filing also says the Attorney General’s Office’s contention that the measure “amends the Armstrong framework” that is the basis of challenges to other abortion restriction laws in Montana should not be considered in assessing whether the proposed initiative contains separate votes, and that the Attorney General’s Office simply is blocking the measure because it does not like it.

“Nothing in Article XIV, statute, or the decisions of this Court empower the A.G. to block an initiative simply because he would prefer a different policy, write the proposal differently, or subjectively prefer more discrete sub-choices,” Graybill wrote.

He went on to say the Attorney General’s Office deployed a “catalogue of absurd hypotheticals” in its separate-vote analysis, including questions over medical licensing boards, that are not part of the office’s purview in analyzing the legal sufficiency of proposed initiatives.

“In any event, the A.G.’s role is to determine whether there is a single constitutional amendment in play, not to index its potential policy effects,” Graybill wrote. “It is the province of the courts to answer the A.G.’s what-could-happen questions, when—and if—they happen. In speculating at all the ways CI-14 could be interpreted, the A.G. does not establish a separate vote violation.”

In addition to asking the court to rule on the separate-vote question, Graybill also asked it to strike the fiscal statement proposed by the Attorney General’s Office, arguing Attorney General Austin Knudsen’s office “oversteps his authority and responsibility” and that such a statement contains advocacy in discussing Medicaid coverage and litigation costs:

Finally, Graybill argues on behalf of the group that state law says the Attorney General can only change a proposed ballot statement if it “clearly does not comply” with the law, and that there is no way the court could read the proposal as “clearly” being out of compliance.

In the Montanans for Election Reform case, the court’s unanimous order was delivered nearly a month after the group filed its petition and 15 calendar days after the Attorney General’s Office filed its response.