Montana Supreme Court writes ballot language for abortion amendment

The legal battle over a Montana abortion amendment is continuing, as the state Supreme Court has stepped in to write the language on the embattled ballot themselves.

In a 6-0 decision, the justices wrote the language themselves and sent it to the secretary of state to be certified. The amendment, if enough signatures are gathered, will read:

CI-___ would amend the Montana Constitution to expressly provide a right to make and carry out decisions about one’s own pregnancy, including the right to abortion. It would prohibit the government from denying or burdening the right to abortion before fetal viability. It would also prohibit the government from denying or burdening access to an abortion when a treating healthcare professional determines it is medically indicated to protect the pregnant patient’s life or health. CI-___ prevents the government from penalizing patients, healthcare providers, or anyone who assists someone in exercising their right to make and carry out voluntary decisions about their pregnancy.

This is a victory for Montanans Securing Reproductive Rights (MSRR), a pro-abortion group consisting of Planned Parenthood, the American Civil Liberties Union of Montana, and Forward Montana, which sued over Attorney General Austin Knudsen’s proposed language. While the Supreme Court’s ballot language is not identical to the MSRR’s proposed language, it is drastically different from what Knudsen had written.

There is much about the Court’s written ballot language that is undefined, say critics, such as “fetal viability,” “treating healthcare professional,” and even the term “health.”

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Knudsen had previously argued that the ballot language did not adequately state the true intent behind the measure, which is to ensure abortion is legal and easily available through all 40 weeks of pregnancy. Instead, Knudsen offered what he described as a more accurate statement — which was rejected:

CI-*** amends the Montana Constitution to allow post-viability abortions up to birth and prohibits any State requirement for parental notice for a minor’s girl’s abortion.

CI-*** leaves “fetal viability” and “extraordinary medical measures” to the subjective judgment of an abortion provider rather than objective legal or medical standards.

CI-*** prohibits the State, or the people by referendum, from enacting health and safety regulations related to pregnancy care, except upon a narrow set of compelling interests.

CI-*** eliminates the State’s compelling interest in preserving prenatal life. The State or the people may not enforce post-viability abortion regulations if an abortion provider subjectively deems the procedure necessary.

CI-*** prohibits the State and the people from enforcing medical malpractice standards against providers for harms caused in providing pregnancy/abortion care.

CI-*** may increase the number of taxpayer-funded abortions.

Montana Secretary of State Christi Jacobsen could still choose to send the proposal to the state legislature for further review, although the pro-abortion coalition MSRR insisted that isn’t necessary. Senate President Jason Ellsworth, however, has condemned the Supreme Court’s actions as judicial malpractice.

“The lawmaking branch of government needs to have a voice in proposed laws regardless of where they originate or what legal technicalities the courts can find,” he said.

If Jacobsen does validate the statement, a petition will be presented to MSRR, which can begin gathering signatures immediately. They will need to obtain over 60,000 valid signatures from residents in 40 of the state’s House districts by June 21 in order to be placed on the ballot.

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