A constitutional initiative that 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 health-care professional determines it is medically indicated to protect the pregnant patient's life or health. The initiative would prevent the government from penalizing patients, health-care providers, or anyone who assists someone in exercising their right to make and carry out voluntary decisions about their pregnancy.
In November 2022, Montana voters narrowly rejected Legislative Referendum 131, which would have defined certain infants as "born alive" and compelled medical practitioners to provide life-sustaining care to them, no matter the prognosis, with 52.55 percent of voters opposed.[4] Since then, Gianforte has signed into law several bills restricting abortion access, including legislation to ban dilation and evacuation abortions and another prohibiting Medicare and Medicaid funding for abortions, unless they are the result of rape or incest,[5] though many of these laws have been challenged or struck down in court.[6][7][8]
In November 2023, Montanans Securing Reproductive Rights (MSRR) proposed Ballot Measure #14, which would affirm the right to abortion in the Montana Constitution.[9] In January 2024, Attorney General Austin Knudsen challenged the legal sufficiency of the ballot initiative, claiming that the measure "logrolls multiple distinct political choices into a single initiative" and "limits the ability of the state to provide for public health and safety".[10] The Montana Supreme Court rejected Knudsen's challenge in a 6–1 ruling in March 2024,[11] after which Knudsen sought to rewrite the language of the ballot initiative, which was immediately challenged by the MSRR as "confusing, argumentative, and prejudicial".[12] The Supreme Court again rewrote the ballot language in a 6–0 ruling on April 1, 2024, and allowed the ballot initiative to bypass the requirement that it go before an interim committee for an up or down vote since Knudsen never found the proposal to be legally sufficient.[13] Following this ruling, Montana Senate President Jason Ellsworth formed a new special select committee to study judicial oversight and reforms, accusing the Supreme Court of overstepping the separation of powers and alleging multiple other courts of violating the state constitution.[14] Ellsworth also issued a subpoena to Jacobsen for all records tied to Ballot Issue 14, which he said would be "used by a legislative interim committee" to review the ballot issue.[15] The legislative interim committee met on April 18 and voted 6–0 not to support Ballot Measure #14, with the two Democratic members of the committee and groups making up Montanans Securing Reproductive Rights declining to attend the meeting.[16]
Montana Secretary of State Christi Jacobsen sent MSRR its ballot petition on April 5, 2024, a day after the Montana Supreme Court ordered her to do so.[17][18] MSRR began collecting signatures for Initiative 128 in April 2024,[19] and submitted about 117,000 signatures for the ballot initiative on June 21, 2024.[20][21] In July 2024, MSRR accused the Montana Secretary of State of invalidating the signatures of inactive voters,[22] prompting a legal challenge.[23] On July 16, Clark County District Court judge Mike Menahan ordered the Montana Secretary of State to revert rule changes that led its office to invalidate these signatures and to restore the ones it had rejected.[24] Jacobsen appealed this ruling to the Montana Supreme Court, which unanimously upheld Menahan's ruling.[25] County election officials verified 81,163 signatures as of July 24, 2024, putting Initiative 128 on the 2024 general ballot.[26]
Campaign
Initiative 128 was supported by Montanans Securing Reproductive Rights, which is led by Martha Fuller, the president of Planned Parenthood Advocates of Montana, and includes the ACLU of Montana and Forward Montana.[19] It was opposed by the Montana Life Defense Fund, which is chaired by Jeff Laszloffy, the president of the Montana Family Foundation.[27] As of October 2024, pro-amendment groups spent over $11 million on ads supporting Initiative 128, compared to about $105,000 for the referendum's opponents.[28]Susan B. Anthony Pro-Life America and Students for Life of America have also reported spending about $160,000 on canvassing efforts opposing Initiative 128.[29]
Supporters of Initiative 128 argued that the constitutional amendment is necessary to prevent Republican legislators from passing bills to restrict abortion in the state.[30] The initiative's opponents argued that the amendment, if passed, would enable late-term abortions and overturn state laws banning Medicaid funding for abortion and requiring parental notification for minors that terminate their pregnancies. Initiative 128 would allow the government to regulate abortions after fetal viability, which it defines as the point in pregnancy when a treating medical provider finds that there is a significant likelihood that a fetus would be able to survive outside the uterus without extraordinary medical measures.[29]
