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Supreme Court writes ballot statement for proposed abortion constitutional amendment

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Supreme Court writes ballot statement for proposed abortion constitutional amendment

Apr 01, 2024 | 6:36 pm ET
By Blair Miller
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Supreme Court writes ballot statement for proposed abortion constitutional amendment
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The Great Seal of the State of Montana in the Supreme Court (Photo by Eric Seidle/ For the Daily Montanan).

The Montana Supreme Court on Monday wrote the ballot statement for a proposed amendment to enshrine abortion access in the Montana Constitution, rejecting the attorney general’s statement as well as the one originally proposed by the group behind the measure.

The 6-0 decision by the court, which Justice Jim Rice did not join, sends the court’s ballot statement to the Secretary of State so Ballot Initiative #14 can move forward and Montanans Securing Reproductive Rights can start collecting signatures.

The ballot statement written by the Supreme Court will read as follows:

CI-___ would amend the Montana Constitution to expressly provide a right to make and carry out decisions about one’s own pregnancy, including the right to abortion.  It would prohibit the government from denying or burdening the right to abortion before fetal viability.  It would also prohibit the government from denying or burdening access to an abortion when a treating healthcare professional determines it is medically indicated to protect the pregnant patient’s life or health.  CI-___ prevents the government from penalizing patients, healthcare providers, or anyone who assists someone in exercising their right to make and carry out voluntary decisions about their pregnancy.

The court also found that since Knudsen never found the proposal to be legally sufficient — the Supreme Court overturned his insufficiency finding — the measure will not have to go before an interim committee for an up or down vote, which would be recorded on the ballot statement. That means the group will not have to wait through that portion of the process, as many as 14 days, before it can start collecting signatures.

The executive directors of Planned Parenthood Advocates of Montana, Forward Montana, and the ACLU of Montana — the groups that make up Montanans Securing Reproductive Rights — said in a statement they were thrilled with the decision and ready to start gathering signatures.

“We know that Montanans have been waiting for this day for a long time, and we could not be more excited to get to work alongside them. Montanans are enthusiastic about the initiative and are eager to volunteer,” the group said, urging people to volunteer.

The group and its attorney, Democratic lieutenant governor candidate Raph Graybill, asked the court for an expedited ruling in its emergency appeal of the ballot statement Knudsen submitted last week for the proposal – which was entirely rewritten from what the group originally submitted.

The Attorney General’s Office did not immediately respond to a request for comment on the order Monday afternoon.

That had followed nearly three months of the proposal being hung up in court. Knudsen on Jan. 16 said the proposal was legally insufficient, leading to a challenge and the court overturning Knudsen’s determination.

The court ordered Knudsen to submit a ballot statement for the proposal by last Monday. But the one he submitted was “confusing, argumentative, and prejudicial,” the group argued in its emergency petition to the Supreme Court, also alleging the Knudsen was purposefully delaying the proposal so the group won’t have enough time to collect enough signatures for the measure to make the ballot before this summer’s deadline.

Knudsen on Friday told the court that he believed the window for ballot statements to be reviewed had already been closed in January, but Graybill in a filing Monday morning called that argument a “legal impossibility.”

Just hours later, the court handed down its order, saying Knudsen’s interpretation that the window was already closed “leads to an absurd result” because he never wrote a ballot statement when he first found the measure to be legally insufficient, so the window could not have closed.

“The legislative purpose of the statute is to provide for court review of an attorney general’s legal sufficiency or deficiency determination and the ballot statements. Interpreting this statute in such a way as to preclude judicial review would defeat the purpose of the statute,” the justices wrote, led by Justice Ingrid Gustafson.

The court also found that the ballot statement Knudsen wrote last week “does not fairly state to the voters what is proposed within the Initiative.”

“In this case, the Attorney General’s ballot statement would prevent a voter from casting an intelligent and informed ballot as it does not inform the voter as to CI-14’s provisions but instead focuses on topics, such as parental notice and medical malpractice, that CI-14 does not discuss,” the justices wrote.

They wrote that they disagreed that the group’s proposed ballot statement had terms that were not well enough defined, and that his interpretation of the group’s statement that the measure would preclude the state from enforcing malpractice standards or using pregnancy outcomes to enforce other policy was incorrect.

But they disagreed with Montanans Securing Reproductive Rights that the group’s proposed ballot statement should go forward unchanged, saying they found two areas in which they agreed with Knudsen.

They said they agreed that the proposal “does more than affirm” existing abortion rights and also there needed to be clearer language about who would determine when an abortion “is necessary” under the proposal.

“Although this Court will not invalidate a ballot statement simply because a better one could be written … we agree the ballot statement should make clear that CI-14 intends to leave medical determinations to medical providers, rather than to the government,” the justices wrote.

Montanans Securing Reproductive Rights had asked for an expedited order in the case before April 10 in order to have the proposal go through the interim committee review process and so they could start collecting signatures no later than May 1.

Montanans Securing Reproductive Rights sent a letter to Secretary of State Christi Jacobsen Monday after the court’s order came down asking her to send a sample petition to the group immediately.

Once the Secretary of State prepares the petition, the group will be able to start collecting signatures. They will need to collect more than 60,000 valid signatures from Montana residents in 40 of the state’s House districts by June 21. The group said in a filing last week it hoped to collect about 66,000 total to ensure there are enough valid signatures.

MSRR’s and AG Knudsen’s ballot statements

The group’s original ballot statement is as follows:

CI-___ affirms the right to make and carry out decisions about one’s own pregnancy, including the right to abortion, in the Montana Constitution. This constitutional amendment prohibits the government from denying or burdening the right to abortion before fetal viability. Additionally, the amendment ensures that the government cannot deny or burden access to an abortion when it is necessary to protect the pregnant patient’s life or health. CI-___ prevents the government from punishing patients, healthcare providers, or anyone who assists someone in seeking reproductive care, including abortion care.

The version Knudsen wrote reads as follows:

CI-*** amends the Montana Constitution to allow post-viability abortions up to birth and prohibits any State requirement for parental notice for a minor’s girl’s abortion. CI-*** leaves “fetal viability” and “extraordinary medical measures” to the subjective judgment of an abortion provider rather than objective legal or medical standards. CI-*** prohibits the State, or the people by referendum, from enacting health and safety regulations related to pregnancy care, except upon a narrow set of compelling interests. CI-*** eliminates the State’s compelling interest in preserving prenatal life. The State or the people may not enforce post-viability abortion regulations if an abortion provider subjectively deems the procedure necessary. CI-*** prohibits the State and the people from enforcing medical malpractice standards against providers for harms caused in providing pregnancy/abortion care. CI-*** may increase the number of taxpayer-funded abortions.

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