Montana Family Foundation sues over Constitutional amendment to protect abortion

The State of Montana deprived voters, especially those who registered on Election Day, of the ability to fully evaluate the language of Constitutional Initiative 128 — to protect abortion in the state Constitution — according to a recent lawsuit.

Filed earlier this month by the Montana Family Foundation, the lawsuit alleges the full text of the amendment should have been printed on the ballot instead of just a summary of the proposed Constitutional amendment.

It alleges that voters who registered on Election Day were particularly harmed because they don’t receive the voter guide distributed in advance by the Montana Secretary of State’s Office — which includes the “complete text” of any Constitutional amendment.

In November 2024, Montana voters supported CI-128 to enshrine abortion into the Montana Constitution with 58% approval. The amendment also prevents the government from penalizing patients or providers.

But plaintiffs Hannah Rhodes and Joe Addy, who registered to vote on Election Day, and the Montana Life Defense Fund, are asking the Montana Supreme Court declare the outcome null and void, alleging the submission of CI-128 to voters was “constitutionally deficient (and) procedurally unsound.”

The Montana Family Foundation filed the case on June 9 directly with the Montana Supreme Court and asked it to accept jurisdiction given “urgency factors,” with the amendment to be enacted July 1.

“Make no mistake: This is a battle for the soul of Montana,” the Family Foundation said in an email to supporters. “If CI-128 stands, it will open the floodgates to unrestricted abortion and strip Montana of its ability to protect innocent life.”

The language of the initiative prohibits the government from denying or burdening the right to abortion “before fetal viability.”

The lawsuit was filed against the State of Montana, and last week, Republican Attorney General Austin Knudsen filed a notice on behalf of the state agreeing the state Supreme Court should take up the case, which he argued “presents issues of statewide importance.”

However, supporters of CI-128 requested to intervene in the case, arguing no one else in the case will represent their interests.

“The State of Montana forced proponents to litigate at every turn to protect Montanans’ constitutional initiative power,” they said in court documents.

The proposed intervenors are Dr. Samuel Dickman, Planned Parenthood Advocates of Montana, ACLU of Montana, and Forward Montana. They are represented by the Graybill Law Firm and ACLU of Montana.

“Proponents have an incontrovertible interest in defending the validity of CI-128 against Petitioner’s claims,” the group wrote in court documents. “Proponents drafted the petition, collected the signatures, prepared the ballot statement, and advocated for passage of the initiative.

“If this action were ‘dispos(ed) of’ in Petitioner’s favor, it would undo all of Proponents’ work, effectively reversing the results not only of the pre-election litigation but also a statewide election.”

This week in a court filing, the Montana Family Foundation said it did not object to participation by the intervenors given the position of the state, and it suggested “substantive briefing” could be helpful in the case.

It said the Montana Constitution requires “the full text of any proposed constitutional amendment to be submitted to the qualified electors on the ballot — not merely a short title, explanatory summary, or attorney general’s statement.”

The Montana Secretary of State publishes a voter information pamphlet, including the complete text of any Constitutional amendment, but that booklet is only distributed to registered voters on an active voter list “not later than 45 days before the election,” said the Montana Family Foundation in its petition.

That means Election-Day registrants don’t get those pamphlets, the plaintiffs said: “In other words, this class of qualified electors are deprived of the same opportunities to cast more-informed ballots compared to registered, active voters who appear on a county’s voter registration list more than 45 days prior to the election.”

As such, the Montana Family Foundation said the failure to include the full text of the amendment on the ballot violates the equal protection clause of the state and U.S. constitutions.

“As an Election-Day registrant, Rhodes was forced to cast a ballot without having an opportunity to read, evaluate or analyze the full text of CI-128,” said the court filing.

In a joint statement, supporters of CI-128 who asked to intervene in the case said they would continue to fight for access to abortion.

The statement was issued by ACLU of Montana Executive Director Akilah Deernose, Forward Montana Executive Director Alice Boyer, and Planned Parenthood Advocates of Montana CEO and President Martha Fuller.

“Everyone deserves the privacy and compassion to access the abortion care they need,” they said. “Montana voters agreed and made an informed decision when they decisively enshrined their right to abortion in the State Constitution.

“Anti-abortion extremists are showing a desperate display in an attempt to outright ignore the will of Montanans to enforce their unpopular, dangerous political agenda. We know that they will try anything to ban abortion — we, alongside our supporters, remain committed to fighting for Montanans and their families, and medical privacy free from government interference.”