Two years after the U.S. Supreme Court overturned Roe v. Wade, Montanans will vote on whether to enshrine abortion rights in the state constitution.
Constitutional Initiative 128, advanced by a group called Montanans Securing Reproductive Rights, would create a new section of the Montanan Constitution establishing “a right to make and carry out decisions about one’s own pregnancy, including the right to abortion.” The initiative would allow the government to regulate abortion after fetal viability, except in cases when the mother’s health is at risk.
In 1999, the Montana Supreme Court ruled in Armstrong v. State of Montana that an individual’s right to privacy under the Montana Constitution provides the right to “procreative autonomy,” including the right to the pre-viability abortion of a pregnancy.
As Montanans prepare to vote on CI-128, the political landscape is abuzz with debate.
Akilah Deernose is the executive director of the American Civil Liberties Union of Montana, a group supporting the initiative. Deernose said after the U.S. Supreme Court overturned Roe v. Wade, efforts to restrict access to abortion cropped up around the country. During the 2023 legislative session, Montana lawmakers attempted to pass dozens of bills curtailing abortion access.
“In order to protect Montana's abortion rights, we wanted to get this abortion measure on the ballot so that Montanans could have a say and enshrine our existing protections into the constitution,” Deernose said.
CI-128 faced numerous hurdles in making it onto this year’s ballot. Earlier this year Montana Attorney General Austin Knudsen attempted to block the proposal, calling it “legally insufficient.” The resulting litigation delayed the necessary gathering of signatures. Later, Secretary of State Christi Jacobsen changed the standard for ballot petitions so that only active voters could be considered eligible signatures. A state district court overturned that decision.
Supporters of the initiative ultimately had fewer than 80 days to collect more than 60,000 signatures across the state. In that time, more than 500 volunteers gathered 117,000 signatures from all counties of Montana.
“(That) is more signatures than any ballot initiative has ever received,” Deernose said. “I think it really just speaks to the fact that there is widespread support and desire for this ballot measure to pass.”
Matthew Brower, executive director of the Montana Catholic Conference, opposes CI-128. He argues that enshrining a Montana Supreme Court decision into the state constitution would set a dangerously broad precedent.
“It takes what Armstrong has provided and places it into the constitution, rather than relying solely on a Supreme Court decision,” Brower said. “We must consider the standard of judicial review that this constitutional amendment would introduce — not only for pre-viability abortions but also for post-viability scenarios.”
Throughout the campaign for CI-128, proponents have claimed it would safeguard Montanans' privacy and reproductive rights in “unthinkable situations,” such as cases of rape, incest, or when a woman’s life is at risk.
But Brower argues that the measure does not reflect the values of many Montanans and could undermine existing protections within the state. He pointed out that current laws require minors under 16 to notify their parents, which would be eliminated if CI-128 passes. He also said codifying abortion into the state’s constitution through this process will thwart opportunities for productive dialogue around the issue.
He said society should offer more solutions to support pregnant women in vulnerable positions. “There are folks who think that abortion is a very reasonable path in those situations,” Brower said. “But there are other things that I think are left off the table if we try this in the constitution, because this kind of becomes the norm. We don't then have conversations around what are reasonable restrictions, what are reasonable regulations, and what are reasonable protections for young girls and families?”
If passed, Brower said it would be virtually impossible to craft any effective legislation around abortion. He emphasized that he is not addressing situations where the health or life of the mother is at risk, but rather the issue of unrestricted late-term abortion.
“Especially if you get post-viability scenarios that I don’t think people are necessarily aware of, this will be deeply problematic,” Brower said.
While Brower finds CI-128 problematic and Deernose believes the ballot will protect Montanans, Jessi Bennion, a professor of political science at Montana State University, said the initiative is likely more about politics than anything else.
According to Bennion, states with abortion initiatives are popular with the Democratic Party because they mobilize a certain kind of voter that Democratic candidates, such as Sen. Jon Tester, need to win elections.
“Abortion rights are already in Montana; it just now (would be) codified explicitly into the Constitution. So that’s the change this initiative would make,” Bennion said. “I think it was a brilliant strategy and a popular initiative.”
She noted that abortion rights are a rare issue that draws support from across traditional partisan divides. Montana is one of eight states with abortion rights on the ballot in this year’s election.
“There are voters who I guess we would call suburban in Montana who will vote yes on that, but who consider themselves Republicans,” Bennion said. “Someone will vote for (former President) Donald Trump and then on their ballot vote yes on that initiative.”
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