Knudsen rewrites abortion initiative ballot statement

The group behind a proposed constitutional amendment to enshrine abortion access in the Montana Constitution filed an emergency petition with the state Supreme Court on Tuesday morning asking it to overturn the attorney general’s newly rewritten ballot statement for the proposal.

Republican Attorney General Austin Knudsen — ordered by the Supreme Court last week to prepare the ballot statement for Montanans Securing Reproductive Rights’ proposal, Ballot Issue #14 — on Monday sent Secretary of State Christi Jacobsen a new ballot statement that entirely rewrites the group’s original statement in a fashion they contend is “confusing, argumentative, and prejudicial.”

“The A.G. has unabashedly abandoned his role as a neutral gatekeeper in the citizen-initiative process. The statement is confusing and prejudicial, and will prevent voters from casting an educated ballot on CI-14. MSRR’s ballot statement is clear and neutral. The court should strike the A.G.’s statement and certify MSRR’s ballot statement directly to the Secretary, effective immediately upon issuance of the Court’s decision,” the group’s attorney, Raph Graybill, wrote in the petition to the Supreme Court.

Graybill and the group say Knudsen’s rewriting of the group’s proposed ballot statement, which the Legislative Services Division already found was in compliance with requirements for such proposals, is another attempt by Knudsen to block the proposal from making the ballot.

After his office initially found the proposal to be legally insufficient, the Supreme Court last week overturned his ruling and said the proposal should move forward because it contains a single change to the Constitution: “the right to make decisions about one’s own pregnancy, including the right to abortion.” The court ordered Knudsen to prepare a ballot statement by the end of Monday to continue the initiative process.

Montanans Securing Reproductive Rights last week had worried that Knudsen would rewrite their original statement due to his opposition to abortion and previous efforts to block the proposal. They said the ballot statement he sent to Secretary of State Christi Jacobsen brought those concerns to reality.

The group’s original ballot statement is as follows:

"CI-___ affirms the right to make and carry out decisions about one’s own pregnancy, including the right to abortion, in the Montana Constitution. This constitutional amendment prohibits the government from denying or burdening the right to abortion before fetal viability. Additionally, the amendment ensures that the government cannot deny or burden access to an abortion when it is necessary to protect the pregnant patient’s life or health. CI-___ prevents the government from punishing patients, healthcare providers, or anyone who assists someone in seeking reproductive care, including abortion care."

The version Knudsen wrote and sent to Jacobsen on Monday reads as follows:

"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."

In his letter to Jacobsen, Knudsen contends that the original statement from the proponents “fails to give voters an accurate understanding of how the proposed initiative will change current law.” It also says the original does not define certain terms and claims that one of the sections of the proposal “precludes the State from enforcing medical malpractice standards of using pregnancy outcomes, like babies who are born drug-addicted, to enforce other state policies.”

He had made similar arguments in his original legal insufficiency finding, which was overturned by the Supreme Court.

In a statement, the leaders of Planned Parenthood Advocates of Montana, the ACLU of Montana and Forward Montana – three of the groups that are part of Montanans Securing Reproductive Rights – said Knudsen’s language was a politically motivated attempt to stop Montanans from being able to vote on the initiative in November.

“The Attorney General’s strategy here is obvious and desperate: to force MSRR to go to court again, causing more delay in hopes of denying Montanans the opportunity to secure their right to abortion,” they said in the statement.

In the Supreme Court petition, Graybill asks the court for an expedited ruling and for it to order Knudsen to respond to the emergency petition by Friday. He warned the court that with the 14-day legislative committee review process still ahead, Montanans Securing Reproductive Rights believes it will be “virtually impossible” to collect around 60,000 signatures by June 21 that it will need for the measure to make the ballot if it cannot start collecting signatures until after May 1.

In the group’s request for an expedited schedule in the new case, an exhibit is attached from a signature gathering group estimating the group will have to collect 66,500 valid signatures for the measure to qualify for November’s ballot, but it intends to collect at least 10% more to ensure there are enough valid signatures.

Montanans Securing Reproductive Rights asked for Knudsen’s response and any friend-of-the-court briefs to be ordered submitted by Friday, and for a ruling from the court on whether to allow Knudsen’s language to move forward, or for one accepting the group’s original language, by April 10.

The petition to the Supreme Court goes line-by-line through Knudsen’s rewritten ballot statement, telling the court why the group believes the statement is purposefully more confusing than the original and includes arguments and topics not even part of the proposal, as well as a last-ditch effort to include a fiscal statement when that has already been struck down by the court.

It also says the only public comments Knudsen received opposed to the original language came from the Montana Family Foundation, a group that supported abortion restrictions at the Legislature last year.

The Supreme Court on Tuesday afternoon ordered Knudsen to respond to the petition by the close of business on Friday.

Graybill unsuccessfully ran for attorney general against Knudsen in 2020 and is running for lieutenant governor alongside Democratic gubernatorial candidate Ryan Busse this year.

Blair Miller is a Helena-based reporter. The Daily Montanan is a nonprofit newsroom.