Supreme Court orders Jacobsen to send abortion ballot petition to group

Montana Secretary of State Christi Jacobsen will have to send the sample ballot petition to the group trying to get an initiative aiming to enshrine abortion access in the state constitution onto November’s ballot by 1 p.m. on Friday, or risk facing a possible contempt charge, the Montana Supreme Court ordered Thursday afternoon.

Ballot Initiative No.14 will not have to go before an interim committee for review, the court also restated, and there can be no language indicating anything about a legislative review vote, the court further ordered.

And if Jacobsen does not comply with the request and notify the court when the petition has been sent, she will have to tell the court by noon on Monday why she should not be held in contempt, according to the order signed by five court justices.

But even with the order in place, lawyers with the Attorney General’s Office filed a quick objection to the order Thursday afternoon, claiming Jacobsen and the Attorney General’s Office had not been served with a petition filed Thursday morning by the proponents for a writ of mandamus, and saying the court does not have jurisdiction over her for the order and that she needs a chance to respond before any court hands down an order.

Montanans Securing Reproductive Rights said it was happy with the court’s order and hopeful Jacobsen would comply.

“We urge the Secretary of State to comply with the court’s clear order and forward a final petition by 1 p.m. tomorrow,” the group said in a statement. “Montanans are ready to secure their right to make decisions about their own pregnancies, including the right to seek abortion care — once and for all. This process cannot be delayed by the personal politics of government officials any longer. MSRR looks forward to moving onto the next phase of signature gathering.”

Order could spell end of long court fight

The order from the court comes just hours after Raph Graybill, the attorney for Montanans Securing Reproductive Rights, filed a request for a writ of mandamus to try and get the court to force Jacobsen to give the group the petition, which she has declined to do since the Supreme Court ordered her to do so on Monday when it wrote the final ballot statement for the initiative and said she needed to complete the process.

First, her office claimed that since the court wrote in Monday’s order that the measure did not need to go through a legislative review by an interim committee, but that portion of the order was in a footnote, that it was not a legally binding order. The Supreme Court has on multiple occasions since then said she was incorrect.

Second, Senate President Jason Ellsworth, R-Hamilton, issued a subpoena  to her demanding copies of all materials related to the ballot initiative by Friday so he could initiate the committee review process. A spokesperson for Jacobsen’s office told the Daily Montanan this week Jacobsen intended to both comply with the subpoena and the court’s order from Monday telling her to hand over the ballot petition.

But according to Montanans Securing Reproductive Freedom, though Graybill was under the impression Tuesday morning the group would get the petition by the end of the day, Jacobsen had not sent it to them as of Thursday morning, leading to his latest request that the court step in.

“In this instance, we agree with MSRR no plain, speedy, or adequate remedy exists in the ordinary course of law as this matter concerns the procedure for statewide ballot initiative and this court has previously recognized the need for expedient resolution of disputes regarding CI-14,” the justices wrote, agreeing that an alternative writ in this case was necessary to force her to action.

The justices said the final petition needs to include the ballot statement the court wrote earlier this week – not any other version that has been crafted either by the proponents or the attorney general along the way – and cannot contain any language referring to a legislative review.

The court’s order marks what should be a final resolution of a nearly four-month fight between Montanans Securing Reproductive Rights, Jacobsen and Attorney General Austin Knudsen over the initiative, which the proponents said both Jacobsen and Knudsen have gone to lengths to stop or delay.

The group first challenged Knudsen’s finding that the measure was legally insufficient for the ballot because it contained more than one change to the constitution – a challenge in which they eventually prevailed when the Supreme Court overturned Knudsen’s finding.

But Knudsen then wrote a ballot statement for the measure the group argued inserted his own beliefs – a challenge on which Montanans Securing Reproductive Rights also prevailed when the court found his statement to be deficient and wrote its own, which it sent to Jacobsen on Monday.

But Senate Republicans, already angry about other Supreme Court decisions that have not gone their way, announced Tuesday they were forming a select legislative committee to address what they say is the courts overstepping the separation of powers because of the decisions on the initiative and other legislation they passed that the courts have blocked.

Almost simultaneously, Ellsworth, who is running for the Clerk of the Supreme Court seat in a Republican primary against incumbent Bowen Greenwood, sent Jacobsen the subpoena, also threatening her with possible contempt if she didn’t comply.

“Yesterday the Montana Supreme Court was effing around in a footnote,” Ellsworth said in a statement at the time. “Today they’re finding out what the Legislature thinks of that.”

In its order Thursday, the court cited the statute that says the attorney must find an initiative legally sufficient in order to trigger the legislative review, along with the statute the outlines the role of judges in Montana.

“We are bound by the plain meaning of the words used in statute,” they wrote. “Our role is ‘simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.’”

Sec. of State asks to share ‘its side of the story’

Richie Melby, a spokesperson for Jacobsen, said in a statement shortly after the Attorney General’s Office filed the objection on behalf of Jacobsen, that the office is disappointed the order was handed down before the office was “given an opportunity to tell our side.”

“All we ask for is to share the election official’s side of this without dealing with repeated legal maneuvers on emergency timelines,” Melby said in an email.

Graybill’s request for a writ of mandamus filed Thursday morning shows two certificates of service that it was filed in the Montana Courts e-filing system and that a copy was sent to the Secretary of State’s chief legal counsel, however. A spokesperson for the group said it delivered physical copies on Thursday afternoon as well.

But the Secretary of State’s Office cited a Supreme Court decision saying that when people are served in the official capacity as a state officer, the attorney general must also be served since he represents the state.

Montanans Securing Reproductive Rights has been pressing the courts, Knudsen and Jacobsen for a resolution of the initiative’s future for weeks, saying that each passing day in which they are not allowed to start collecting signatures is making it less likely they will be able to gather the more-than 60,000 valid signatures from 40 state House districts by the June 21 deadline in order to make November’s ballot.

Their effort mirrors similar ones across the country in which proponents of abortion access are trying to get protections into state constitutions in the wake of the U.S. Supreme Court’s 2022 Dobbs decision in which the court said abortion rights needed to be left up to states, effectively undoing 50 years of protections under the Roe vs. Wade decision.

The 1999 Armstrong vs. State of Montana decision that said the right to privacy included the right to abortion care has been longstanding precedent protecting abortion access in the state, and the courts have used that case to strike down numerous abortion restriction laws passed by Republicans in recent years.

Ballot Initiative No.14 would, if approved for the ballot and passed by voters, amend the Constitution to affirm the right for Montanans to make their own pregnancy decisions. It would also prohibit the government from denying abortion access before a fetus is viable and prevent the government from restricting abortion access when it is necessary to protect the mother’s health or keep abortion practitioners from being punished criminally or through a licensure board.

Montanans Securing Reproductive Rights is a consortium of Planned Parenthood Advocates of Montana, the ACLU of Montana, and Forward Montana.