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Montana Supreme Court dissenter raises serious questions about proposed pro-abortion constitutional amendment

by | Mar 20, 2024

By Dave Andrusko

On Tuesday we discussed a 6-1 decision handed down by the Montana Supreme Court that ruled that Attorney General Austin Knudsen had erred in blocking “CI-14” [Ballot Issue 14], a proposed constitutional amendment which would specifically embed access to abortion in the state constitution.

“Montanans Securing Reproductive Rights” submitted the measure backed up by Planned Parenthood Advocates of Montana. It would establish “a right to make and carry out decisions about one’s own pregnancy, including the right to abortion,” according to KVTH’s Jonathon Ambarian.

Contrary to AG Knudsen, the majority held that Ballot Issue 14 did not violate the state’s requirement that unrelated changes to the constitution be voted on separately.

“CI-14 specifies the right it creates and the limitations thereto, which constitutes a single change to the Constitution,” said the opinion, written by Justice Ingrid Gustafson.

In January Knudsen’s office said “that the proposed amendment would go further than the Montana Supreme Court’s 1999 Armstrong decision, which allowed pre-viability abortion based on the constitutional right to privacy,” – Ambarian wrote. “They argued the measure therefore made an implicit change to that existing right.”

Justice Jim Rice was the lone dissenter and concurred that Knudsen decision was justified. His overriding points were that the majority opinion eliminated any right of the state to regulate abortion at any stage of pregnancy and that the proposed amendment had so many moving parts the average voter would not be able to comprehend it.

Justice Rice began by writing that there were additional problems with the ballot initiative that compelled him to agree that “Attorney General properly determined that the initiative, in its totality, is legally insufficient.”

CI-14 is a lengthy and complex proposal, one which requires careful examination to comprehend its effects. 25 ¶52 Subsection 1 provides a right to make decisions about “one’s own pregnancy,” including the right to an abortion, which cannot be denied or burdened unless justified by a compelling state interest achieved by the least restrictive means. As the Court explains, the right is stated generally and without restrictions or qualifiers, such as “pre-viability,” and therefore I likewise read it as being a right applicable to all pregnancies.” [Underlining added]

Justice Rice added that he read CI-14

as making two or more changes to the Constitution that are substantive in nature…But more, CI-14 alters or defines in a new way, existing legal concepts and creates an internal, unresolved conflict within its provisions. As such, it is virtually impossible, in my view, for a voter to fully comprehend the effects of its multiple provisions. …


I believe it is clear that the provisions of CI-14 are not readily understood, have effects that are concealed, and would result in voter confusion.

While “Montanans Securing Reproductive Rights” hailed the court’s decision as a victory, “the proposal will still need its ballot statement finalized by Attorney General Austin Knudsen,” according to Blair Miller of the Daily Montanan. “After that, it will go through a legislative committee meeting before supporters can begin collecting more than 60,000 signatures from 40 state House districts by June 21.”

Categories: Judicial