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Montana Attorney General's office blocks proposed abortion ballot measure

Attorney General's Office
Posted at 5:39 PM, Jan 18, 2024

HELENA — Attorney General Austin Knudsen’s office has blocked a proposed ballot measure that would have specifically protected access to abortion in the Montana Constitution.

Knudsen’s office issued a ruling this week calling the proposed amendment legally insufficient, saying it violates Montana’s requirement that unrelated constitutional changes be voted on separately.

The measure, backed by Planned Parenthood Advocates of Montana, would add language to the state constitution, establishing “a right to make and carry out decisions about one’s own pregnancy, including the right to abortion.”

The text said the right to abortion “shall not be denied or burdened” except for a compelling government interest that “clearly and convincingly addresses a medically acknowledged, bona fide health risk.” It said the government would be allowed to regulate abortion after fetal viability – when a doctor believes a fetus could likely survive outside the uterus – but not to deny or burden an abortion when needed to protect a patient’s life or health. Finally, it said the government can’t “penalize, prosecute, or otherwise take adverse action against someone” based on their pregnancy outcomes or for “aiding or assisting” someone else in exercising the rights in the amendment.

The attorney general’s sufficiency review said the proposed amendment went farther than preserving Montana’s status quo on abortion, which is based on the Montana Supreme Court’s 1999 Armstrong decision. It said the language included other changes not specifically related to abortion care, and that voters wouldn’t have the ability to make “independent political choices” on specifics like when in pregnancy an abortion can occur or which abortions should be considered medically necessary.

“Ballot Measure 14 creates an express right to abortion but denies voters the ability to express their views on the nuance of the right,” the ruling said.

This decision could be appealed to the Montana Supreme Court. The court recently overturned the attorney general’s ruling that a ballot measure to create a top-four primary election was legally insufficient.

Raph Graybill, an attorney for Montanans Securing Reproductive Rights – the committee backing the proposed initiative – released a statement in response to the attorney general’s ruling.

“Montanans Securing Reproductive Rights (MSRR) is disappointed by a decision made by the Attorney General’s Office to find Ballot Issue 14 legally insufficient,” he said. “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. MSRR is confident in the legality of ballot initiative language that was submitted in November 2023. 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.”