HELENA — Two years after the U.S. Supreme Court overturned Roe v. Wade in the Dobbs decision, voters in ten states will be considering ballot measures on abortion this fall – including Montana.
Because of a state Supreme Court precedent dating back to 1999, access to abortion in Montana didn’t change after the Dobbs decision. Now, voters will have to decide whether they want to specifically add abortion to the Montana Constitution.
Constitutional Initiative 128 would add a new section to the constitution, outlining a “right to make and carry out decisions about one’s own pregnancy, including the right to abortion” and stating that that right “shall not be denied or burdened unless justified by a compelling government interest achieved by the least restrictive means.”
CI-128 would allow the state to regulate abortion care after fetal viability – the point at which a heatlhcare professional determines that a fetus is likely to survive outside the uterus. However, it provides an exception, saying the government couldn’t “deny or burden” access to an abortion if a health care professional determines it’s “medically indicated to protect the life or health of the pregnant patient.”
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The measure also says the government couldn’t “penalize, prosecute, or otherwise take adverse action against” someone based on their “actual, potential, perceived, or alleged pregnancy outcomes,” or because they helped someone else exercise their rights related to pregnancy or abortion.
In the 1999 Armstrong decision, the Montana Supreme Court ruled the state constitution’s right to privacy protected access to abortion before fetal viability. They’ve upheld that precedent repeatedly in recent years, including in rulings that overturned Montana laws requiring parental consent before a minor gets an abortion and preventing advanced practice nurses from performing abortions.
In one of those opinions, Justice Laurie McKinnon wrote the Montana Constitution “guarantees a woman a fundamental right of privacy to seek abortion care from a qualified health care provider of her choosing, absent a clear demonstration of a medically acknowledged, bona fide health risk.”
However, leaders with Montanans Securing Reproductive Rights, the committee leading the campaign for CI-128, say the ballot measure is still needed as a way to protect against what they see as a pattern of attacks on abortion rights.
“We've long been able to count on the courts here in Montana to uphold the right to access abortion as part of our right to privacy; I would certainly hope that that continues,” said Martha Fuller, president and CEO of Planned Parenthood Advocates of Montana, who serves on MSRR’s executive committee. “We know that courts can change over time – and as we saw with the U.S. Supreme Court, while we long thought precedent was settled law, there is always a possibility that future courts might not see things the same way as courts have traditionally seen them in the state.”
Fuller says they see CI-128 as closely matching what the courts have held based on the Armstrong precedent. However, opponents of the measure have sought to make the case it would go farther than what’s currently allowed.
“It's touted as protecting women's health and protecting women's rights,” said Derek Oestreicher, chief legal counsel for the Montana Family Foundation. “The fact of the matter is this constitutional amendment is not a protection for women. It actually strips away regulations that are designed to protect women's health.”
Oestreicher argued that the language in CI-128 is vague, and that it would be hard for the state to implement any regulations on abortion that would survive a legal challenge. In particular, he said the measure could threaten a Montana law requiring parental notification when someone younger than 16 gets an abortion, and prevent restrictions on abortions late in pregnancy.
Similar arguments appeared this summer in a joint letter from Montana’s Catholic bishops, which called CI-128 “radical” and urged voters to read the full text and vote no. The letter was signed by Bishops Austin Vetter of the Diocese of Helena and Jeffrey Fleming of the Diocese of Great Falls-Billings, as well as Bishop Emeritus Michael Warfel of Great Falls-Billings.
“When you write this into your state constitution, that is very difficult to then come back and change,” said Matt Brower, executive director of the Montana Catholic Conference. “It really ends up cutting off that dialogue, that discussion that we believe – that the bishops believe – around this issue needs to be an ongoing thing.”
Akilah Deernose is executive director of the ACLU of Montana, one of the groups sitting on MSRR’s executive committee. She said CI-128 was patterned specifically after the current state of reproductive rights in Montana.
“CI-128, if you read the language, it's clear,” she said. “Our campaign is focused on the facts, and the facts are that this initiative simply protects the health and constitutional rights of Montanans.”
If CI-128 doesn’t pass, there won’t be any immediate change to abortion access in Montana. Oestreicher argued that means voters don’t need to vote yes thinking that abortion will be illegal otherwise – though he acknowledged the Montana Family Foundation would like to see the Armstrong precedent overturned in the long run.
“The status quo is abortion is legal up to the point of viability,” he said. “Certainly there are pro-life proponents like us who don't believe that abortion is ever justified, and that's our opinion. There's pro-choice people on the other side who believe that abortion is always justified. But in that middle ground, most people would say that late-term abortion of pain-capable babies is just something we don't support.”
Deernose noted that numerous proposals to tighten abortion restrictions have passed the Montana Legislature in recent years, and said having an explicit right for abortion access within the state Constitution would be an important step to ensure existing rights remain.
“If CI-128 does not pass, the existing laws won't change immediately, but it does put reproductive rights in Montana at grave risk,” she said.
Opponents of CI-128 have also criticized MSRR for the extensive funding it has received from out-of-state groups. Groups like the Advocacy Action Fund, the Sixteen Thirty Fund, the Global Impact Social Welfare Fund, the Fairness Project and the Open Society Action Fund have all contributed at least $1 million to the campaign.
“I think that should cause us all to pause and ask a question about why is that, and is that really going to then reflect the Montana values that we have,” said Brower.
Fuller responded to those questions by pointing to the work it took to get CI-128 on the ballot.
“We got signatures from every single county in the state, we got more than 100,000 signatures,” she said. “It is very clear that Montanans are in support of this. There are local organizations on the ground doing the work, individuals who are eager to be a part of the effort, and I think it is very clear that this is something that Montanans support and is really guided by Montanans.”
Since the Dobbs decision, abortion-rights advocates have been successful in a series of ballot measures across the country. This year, voters in Arizona, Colorado, Florida, Maryland, Missouri, New York, Nevada and South Dakota will all be considering ballot measures that would loosen abortion restrictions or enshrine existing abortion rights in their constitutions. In Nebraska, there are two competing measures – one to undo a ban on abortions after 12 weeks and one to affirm it.
In 2022, Montana voters rejected Legislative Referendum 131, which would have established penalties if a health care provider failed to provide medical care to an infant born alive, including after an abortion.
