Montana AG rejects ballot proposal to make abortion a right

By Michael Gryboski, Mainline Church Editor Friday, January 19, 2024

Montana Attorney General Austin Knudsen rejected a proposed ballot measure seeking to enshrine the right to abortion in the state constitution, with proponents vowing to appeal the decision.

The Office of the Montana Attorney General issued a memorandum Tuesday regarding Proposed Ballot Measure No. 14, calling it “legally insufficient” to be put on the ballot.

The memo contends that the proposal “creates an express right to abortion but denies voters the ability to express their views on the nuance of the right.”

“Section 36(1) unmoors the right to an abortion from fetal viability. Second, Section 36(2)’s ‘in no circumstance’ clause prohibits any regulation of abortion care if the abortion provider deems the procedure medically necessary,” stated the memo.

“This clause makes it so even regulations that serve a compelling state interest and are narrowly tailored to that interest cannot survive. … This language also elevates the right to abortion above other medical procedures so that abortion — alone — cannot be regulated.”

According to the memo, Section 36(3) “would prohibit the State from enforcing any regulation that includes an adverse action against a person.”

“The prohibition on enforcement exists even if the State passed a law that meets the requirements of Section 36(1)–(2). The choice to preclude the State from being able to enforce valid health and safety regulations is different than the choice to expand abortion rights,” the memo added.

“The contradictory language in the various subsections creates a quandary over the actual decision in front of the voters. … At a minimum, voters are presented with multiple amendments and because of that, Ballot Measure 14 violates Article XIV, Section 11 of the Montana Constitution.”

Raph Graybill, an attorney for Montanans Securing Reproductive Rights, the group backing the proposed ballot measure, said in a statement that an appeal would be likely.

“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,” stated Graybill, as quoted by the Helena-based KTVH.

“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.”

In 2022, the U.S. Supreme Court overturned the 1973 Roe v. Wade decision, striking down the legal precedent that abortion was a federal constitutional right.

Since then, voters in some states have either passed referenda that amend their state constitutions to include a right to an abortion or voted down ballot initiates aimed at banning abortion in most circumstances.

Earlier this month, Arkansas Attorney General Tim Griffin rejected a proposed ballot measure that would create a limited right to abortion because of how the measure defined “physical health.”

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