In November, voters can decide whether they want to enshrine the right to abortion in Montana’s constitution. As of Tuesday, Montana becomes the eighth state to put this question to voters this fall.
The Montana Secretary of State’s office confirmed that the abortion rights initiative will be on the general election ballot. All eight states but one are seeking to amend their constitutions.
With its measure, Montana seeks to enshrine a 1999 Montana Supreme Court ruling that said the constitutional right to privacy protects the right to a pre-viability abortion by a doctor of the patient’s choosing.
The state’s Republican legislators passed a law in 2023 stating that the right to privacy does not protect the right to abortion. That law has yet to be challenged in court.
Opponents of the initiative made numerous attempts to keep it off the ballot, and supporters took several cases to court.
Austin Knudsen, the Republican attorney general, initially believed that the proposed bill was legally inadequate. After the state Supreme Court overruled his decision, Knudsen rewrote the ballot text, stating that the proposed amendment would “allow abortions after viability until birth,” eliminate “the state’s compelling interest in prenatal life preservation,” and potentially “increase the number of taxpayer-funded abortions.”
The Supreme Court eventually drafted its own initiative rules for the petitions used to collect signatures. Signature collectors reported that some individuals attempted to intimidate voters and dissuade them from signing.
The Secretary of State’s office also changed the rules so that signatures of inactive voters would no longer count, overturning a nearly 30-year-old precedent. The office made computer changes to reject signatures of inactive voters after they had already been collected and counties had begun reviewing some of them.
Supporters had to go back to court and received an order and additional time for counties to verify the signatures of inactive voters. Inactive voters are people who have filled out a general change of address form but have not updated their address on their voter registration. If counties send two letters to that address without receiving a response, voters are placed on an inactive list.
Supporters ended up collecting more than 81,000 signatures, about 10.5% of registered voters. The campaign needed just over 60,000 signatures and had to qualify 40 or more of the state’s 100 precincts by collecting the signatures of at least 10% of the people who voted for governor in that precinct in 2020. The initiative qualified in 59 precincts.
Republican lawmakers have made several attempts to challenge the state Supreme Court’s 1999 ruling, including asking the court to overturn it. The Republican-dominated legislature also passed several bills in 2021 and 2023 aimed at restricting abortion access, including one saying the constitutional right to privacy does not protect abortion rights.
Several of these laws have been blocked by the courts, including a ban on abortion after 20 weeks of pregnancy, a ban on prescriptions for medication abortions through telemedicine services, a 24-hour waiting period for medication abortions, and an ultrasound requirement – all citing a 1999 Montana Supreme Court ruling.
Last week, the state court ruled that minors in Montana do not need parental permission to have an abortion, overturning a 2013 law.
In 2022, Montana voters rejected a referendum that would have criminally prosecuted health care providers who fail to take “all medically appropriate and reasonable measures to preserve the life” of an infant born alive, including after an abortion attempt. Health care professionals and other opponents argued that if doctors were forced to attempt treatment, parents could lose valuable time with infants with incurable medical problems.
When the U.S. Supreme Court overturned Roe v. Wade in June 2022, the legality of abortion was returned to the states.
Seven states – California, Kansas, Kentucky, Michigan, Montana, Ohio and Vermont – have since put abortion issues before voters, and in each case, pro-life voters have won.
