Attorney General tells Supreme Court why abortion initiative should remain legally insufficient

Group had asked Supreme Court to reconsider AG’s Office’s original finding

By: - February 6, 2024 4:47 pm

The seven seats and court of the Montana Supreme Court (Photo by Eric Seidle/ For the Daily Montanan).

The Montana Attorney General’s Office told the Supreme Court in a filing Monday the court should uphold its legal insufficiency finding for a proposed ballot initiative to further enshrine abortion access in the state constitution because the changes it would make would be too confusing for voters to understand as a single question.

The Attorney General’s Office submitted a 21-page brief Monday afternoon responding to a petition to the Montana Supreme Court from the group Montanans Securing Reproductive Freedom, which late last month asked the court to review the office’s legal insufficiency finding for their proposed Ballot Measure 14.

The proposed constitutional amendment could get a ballot statement and be approved for signature gathering if the court sides with the petitioners, but if it sides with Attorney General Austin Knudsen’s office, the measure would be all but dead for the November ballot as originally written.

The proposal, if it makes the ballot and is passed by voters, would affirm the right for Montanans to make their own decisions about their pregnancy in the state constitution. It would also bar the government from denying or adding burdens to abortion access before a fetus is viable, and would prevent the government from restricting people from getting abortions when it is necessary to protect the mother’s health or keep practitioners safe from punishment.

But the Attorney General’s Office said the measure did not meet legal standards in a memo issued to the group last month. A deputy attorney general in the office said the proposal violated the requirement that a measure contain one single subject and said, if passed, it would limit the state’s ability to provide for public safety.

The group also received a fiscal note prepared for the measure by the Office of Budget and Program Planning director that included addendums from several state agencies about possible budgetary effects, including one from the Department of Public Health and Human Services that found Montana might have to cover more abortions under Montana Medicaid if the measure were to pass.

But an attorney for the group of abortion advocates asked the Supreme Court to overturn the insufficiency finding, arguing that each part of the proposed measure is essential to the total policy and that the court had made a similar finding regarding a top-four primary ballot measure proposal just months earlier.

The attorney, Raph Graybill, also told the court that the state constitution gives no power to the attorney general to block an initiative “simply because he would prefer a different policy, write the proposal differently, or subjectively prefer more discrete sub-choices.”

In a separate case, a Lewis and Clark County District Court judge on Monday ruled that the “substantive” legal review beyond a legal insufficiency review by the attorney general was unconstitutional, citing prior Montana case law.

In its response brief filed Monday, the Attorney General’s Office argues that the right to abortion in Montana already exists in a section of the constitution surrounding privacy, upheld in the 1999 Armstrong v. State of Montana decision, and that the proposed constitutional amendment would create a new section of the constitution.

The office says the measure would create further subsections that it says would be out of compliance with parts of the constitution that allow government oversight and regulation of abortion, and also create their own conflicts with one another.

“This further violates the ability of voters to separately express their opinions on each change because each section of CI-14 represents its own separate fundamental change to abortion law,” the brief says.

The Attorney General’s Office cites multiple polls done between 2019 and 2022 to say that some voters would like some access to abortion, while others would prefer to vote on the provisions of the proposal separately because they have opinions on abortion access that “vary widely.”

“Voters should be able to choose where such legal lines are set, but CI-14 deprives them of the ability to make these distinct political choices independently. CI-14 is legally insufficient for this reason alone,” the filing says.

It also takes issue with a provision in the proposal prohibiting regulation of abortions if they are deemed medically necessary no matter whether it serves a compelling government interest.

“Whether abortion should be an absolute right immune from government regulation is separate from the question of whether abortion should be an explicit constitutional right to begin with, and CI-14 as presented prevents voters from making these distinct choices separately as well,” the Attorney General’s Office said.

The office also makes similar arguments it made in its denial of the petition surrounding potential effects to medical licensing and Medicaid, and says taken altogether, the multiple facets present “a high risk of significant voter confusion if included on the ballot.”

The office said since the measure, if passed, would not take effect until the start of Fiscal Year 2026, there is no reason the fiscal note should say the measure would cost $0, as the proponents asked the court.

Finally, the Attorney General’s Office told the court that even if it rules in the proponents’ favor, the office will still have to prepare the ballot statements, which it has yet to do because of the insufficiency finding.

The Supreme Court will now consider both sides’ arguments and issue a decision in the coming weeks. In the top-four primary petition case, the court issued its opinion 15 days after the state filed its response.

OP 24-0052 Appellee's Response -- Brief

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Blair Miller
Blair Miller

Blair Miller is a reporter based in Helena who primarily covers government, climate and courts. He's been a journalist for more than 12 years, previously based in Denver, Albuquerque and mid-Missouri.