Two groups, which were shot down unanimously by the Montana Supreme Court when they tried to halt a provision to protect the right to an abortion hours before it became part of the state’s constitution, have kept a vow to take the fight to a state district court.
The Montana Life Defense Fund and the Montana Family Foundation filed suit in Yellowstone District Court late Tuesday afternoon, asking Judge Thomas Pardy to declare Constitutional Initiative 128, passed overwhelmingly by voters in November 2024, invalid because the full text was not printed on the ballot itself, something the group argues makes not just CI-128 illegal, but every amendment passed since 1978. However, the group is only challenging the passage of the abortion amendment because of a two-year statute of limitations.
CI-128, which has since become part of the state’s constitution, protects the right to abortion up to the point of fetal viability, most commonly pinpointed at around the 22nd week of gestation. Previously, abortion had been legal up until the same point due to the state’s constitutional protection of privacy and a 1999 Supreme Court decision that said privacy applied the most in sensitive medical decisions between doctors and patients.
For years, if not decades, conservative lawmakers tried attacking the ruling through a wave of legislation that tried to curb, curtail or otherwise impede the procedure, with little success. In 2024, Montanans overwhelmingly voted to approve CI-128, which enshrined the right.
In the new lawsuit, filed by Derek Oestreicher of the Montana Family Foundation, the group appears not to have nuanced its previous argument, instead repeating the claim that because the full text of the amendment was not printed on the ballot, the entire measure should be invalidated.
That is an argument the state’s highest court rejected unanimously earlier this summer as the Montana Life Defense Fund attempted to stop the amendment from going into effect. However, a five-justice panel chastised the group for trying to manufacture an emergency by waiting so long to challenge to the constitutional initiative, and also said the group had failed to develop a set of facts and legal theory to support its position. It dismissed the emergency appeal, but the group vowed to restart the fight by using the lower courts in order to build a case.
“From 1978 onward, each official ballot containing a proposed constitutional amendment appears to be constitutionally deficient because each ballot has lacked the full text of the amendment as required by Article XIV, Section 9 of the Montana Constitution,” the lawsuit said. “The full text of CI-128 was not printed on the Nov. 5, 2024, ballot, which deprived all qualified electors of a meaningful opportunity to analyze and deliberate on the language of the proposed amendment.”
However, the Montana Supreme Court didn’t mince words when it received a similar argument earlier this summer.
“Any urgency of emergency that exists is entirely of the Defense Fund’s own making, because it waited seven months to file this petition,” the court said in the seven-page order, which outlined why it turned down the request. “We have repeatedly warned parties they cannot manufacture an emergency due to lack of diligence.”
Even though the Life Defense Fund argued that voters may not have known what they were voting for because the full text of the amendment was not printed on the ballot, the Supreme Court pointed out other examples of voter information and access to it at the polling locations.
The court criticized them because copies of the full voters’ guide and the full text are required to be available at every voting precinct.
“The Defense Fund does not tell us how many election-day registrants exist for the 2024 General Election, nor does it assert that the number of election-day registrants was sufficient to change the outcome of this vote,” the court noted.
Constitutional Initiative passed by 58% to 42% margin. In overall vote totals, 345,070 people voted for the measure while 252,300 voted against it, according to the final vote tallies provided by the Montana Secretary of State.
According to those same numbers, 552,438 ballots had been returned one week before the election, while the final vote tally in the state was 612,423, according to the Secretary of State. The exact number of same-day votes has not been released.
The Supreme Court also pointed out that state law requires the Montana Secretary of State to print a voter information guide, as well as prepare ballot information for publication in newspapers or other platforms at the county and state level.
In addition to publishing the text in newspapers around the state and having voting guides sent to all registered voters and available at the polling locations, the Supreme Court said that “the Secretary of State maintains a website, accessible to the public, that includes the (Voter Information Pamphlet) along with other information about Montana’s elections.”
“The Defense Fund has not demonstrated that the electorate was not provided with the full text of CI-128,” the order said. “…And it has not developed the facts necessary to support its legal arguments.”
The Montana Life Defense Fund and the Montana Family Foundation said it will take the fight to the district court so that it can present the facts to show the initiative was passed contrary to the state’s Constitution and that voters were not fully informed.
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