Montanans Securing Reprod. Rts. v. Knudsen

545 P.3d 45

2024 MT 54

MONTANANS SECURING REPRODUCTIVE RIGHTS and Samuel Dickman, M.D., Petitioners,

v.Austin Miles KNUDSEN, in his official Capacity as Montana Attorney General; and Christi Jacobsen, in her official Capacity as Montana Secretary of State, Respondents.

OP 24-0052

Supreme Court of Montana.

Decided: March 18, 2024

ORIGINAL PROCEEDING: Constitutional Initiative 14

For Petitioners: Raph Graybill, Graybill Law Firm, P.C., Great Falls, Montana

For Respondents: Austin Knudsen, Montana Attorney General, Michael Russell, Michael Noonan, Assistant Attorneys General, Helena, Montana Emily Jones, Special Assistant Attorney General, Jones Law Firm, PLLC, Billings, Montana

For Amici American Center for Law & Justice, Susan B. Anthony Pro-Life America, and Montana Family Foundation: Derek J. Oestreicher, Montana Family Foundation, Laurel, Montana

Justice Ingrid Gustafson delivered the Opinion and Order of the Court.

¶1 Petitioners Montanans Securing Reproductive Rights and Samuel Dickman, M.D. ("MSRR"), seek declaratory judgment on original jurisdiction under M. R. App. P. 14(4). MSRR argues it is entitled to declaratory judgment that: (1) the Attorney General incorrectly determined that the subject ballot issue is legally insufficient; (2) the Attorney General had no authority to append a fiscal statement to the ballot issue under § 13-27-226(4), MCA; and (3) MSRR’s ballot statements comply with §§ 13-27-212 and -213, MCA. At our invitation, the Attorney General has responded to the petition.

¶2 We consider the following issues:

1. Did the Attorney General err in concluding that MSRR’s proposed ballot issue is legally insufficient ?

2. Did the Attorney General exceed his authority by appending a fiscal statement to MSRR’s proposed ballot issue?

3. Do MSRR’s ballot statements comply with §§ 13-27-212, and -213, MCA?

¶3 On November 22, 2023, MSRR submitted the text of a proposed constitutional initiative and proposed ballot statements for the 2024 ballot to Secretary of State Christi Jacobsen. Jacobsen designated the submission as CI-14. MSRR submitted finalized initiative text and ballot statements to Jacobsen on December 6, 2023. Jacobsen then referred the matter to the Attorney General and to the Governor’s Office of Budget and Program Planning (OBPP).

¶4 On December 15, 2023, OBPP determined that CI-14 would have $0 fiscal impact in the next biennium, and it could not determine fiscal impact beyond the biennium. On January 16, 2024, the Attorney General determined that CI-14 is legally insufficient because it violates Article XIV, Section 11, of the Montana Constitution. He drafted a fiscal statement for CI-14 but declined to address MSRR’s ballot statements. MSRR then petitioned this Court for declaratory relief on original jurisdiction on January 26, 2024.

¶5 1. Did the Attorney General err in concluding that MSRR's proposed ballot issue is legally insufficient?

[1] ¶6 Section 3-2-202(3)(a), MCA, provides this Court original jurisdiction to review the Attorney General’s legal sufficiency determination. It is within the Attorney General’s authority to determine whether a proposed ballot issue complies with the separate-vote provision of Article XIV, Section 11, of the Montana Constitution. Monforton v. Knudsen, 2023 MT 179, ¶ 11, 413 Mont. 367, 539 P.3d 1078. Thus, we consider whether the Attorney General correctly concluded that CI-14 violates Article XIV, Section 11, of the Montana Constitution, because it proposes multiple constitutional amendments.

¶7 We have addressed the requirements of Article XIV, Section 11, of the Montana Constitution:

The proper inquiry is whether, if adopted, the proposal would make two or more changes to the Constitution that are substantive and not closely related. We have employed a definition of substantive as "an essential part or constituent or relating to what is essential." Then, numerous factors may be considered in determining whether the provisions of a proposed constitutional amendment are closely related, including: whether various provisions are facially related, whether all the matters addressed by the proposition concern a single section of the constitution, whether the voters or the legislature historically has treated the matters addressed as one subject, and whether the various provisions are qualitatively similar in their effect on either procedural or substantive law. In summary, if a proposal would effect two or more changes that are substantive and not closely related, the proposal violates the separate-vote requirement because it would prevent the voters from expressing their opinions as to each proposed change separately.

Monforton, ¶ 12.

¶8 CI-14 would amend Article II of the Montana Constitution by adding a new Section 36 that would provide as follows:

Section 36. Right to make decisions about pregnancy. (1) There is a right to make and carry out decisions about one's own pregnancy, including the right to abortion. This right shall not be denied or burdened unless justified by a compelling government interest achieved by the least restrictive means.

(2) The government may regulate the provision of abortion care after fetal viability provided that in no circumstance shall the government deny or burden access to an abortion that, in the good faith judgment of a treating health care professional, is medically indicated to protect the life or health of the pregnant patient.

(3) The government shall not penalize, prosecute, or otherwise take adverse action against a person based on the person’s actual, potential, perceived, or alleged pregnancy outcomes. The government shall not penalize, prosecute, or otherwise take adverse action against a person for aiding or assisting another person in exercising their right to make and carry out decisions about their pregnancy with their voluntary consent.

(4) For purposes of this section:

(a) A government interest is "compelling" only if it clearly and convincingly addresses a medically acknowledged, bona fide health risk to a pregnant patient and does not infringe on the patient’s autonomous decision making.

(b) "Fetal viability" means the point in pregnancy when, in the good faith judgment of a treating health care professional and based on the particular facts of the case, there is a significant likelihood of the fetus’s sustained survival outside the uterus without the application of extraordinary medical measures.

¶9 On petition to this Court, MSRR argues each component of CI-14 is "facially related" to the right to make decisions about pregnancy and comprises a single constitutional amendment with closely related provisions. It argues that it fulfills the factors that this Court has held may demonstrate that the provisions of a proposed constitutional amendment are closely related.

¶10 MSRR maintains that Subsections 1 and 2 define the scope of the right and Subsection 3 secures the right against adverse action by the government. MSRR asserts that the subsections of CI-14 are qualitatively similar in their effect on either procedural or substantive law because the subsections affect one topic in a single, comprehensive way. Moreover, the voters and the Legislature have historically treated the matters addressed in CI-14 as one subject. For example, House Bill 136, passed during the 2021 Montana Legislative Session, set parameters for the period during pregnancy in which an abortion may generally be performed, or may be performed if the pregnant person’s health is at risk, and provided penalties against individuals who perform or attempt to perform an abortion in violation of those parameters. See Planned Parenthood of Mont. v. State, 2022 MT 157, ¶ 10, 409 Mont. 378, 515 P.3d 301 (summarizing HB 136 as: banning abortions beginning at 20 weeks past the pregnant person’s last menstrual period; prohibiting later-term abortions unless necessary to prevent a serious health risk to the pregnant person; and providing for civil and criminal damages for violations). Finally, MSRR asserts that CI-14 plainly affects only one topic and does so in a single, comprehensive way, by establishing and outlining the right to make decisions about one’s own pregnancy and securing that right from government interference. Thus, MSRR maintains that CI-14 comports with the separate-vote requirement of Article XIV, Section 11, of the Montana Constitution.

¶11 In the Legal Sufficiency Review, the Attorney General asserted that CI-14 fails to comply with the separate-vote requirement in four ways: (1) CI-14 also amends Article II, Section 10, of the Montana Constitution. (2) Subsections 1 and 2 represent independent political choices that require separate votes. (3) Subsection 3 encompasses policy choices divorced from Subsections 1 and 2. (4) Subsection 3 prohibits the State from enforcing valid health and safety regulations, which is a different choice than the expansion of reproductive rights. We consider each of those alleged insufficiencies in turn.

¶12 In its response to MSRR’s petition, the Attorney General points out that we have held that a proposal violates Article XIV, Section 11, of the Montana Constitution, if it proposes an additional change to the Constitution, even if that effect is implicit. Mont. Ass’n of Counties v. State, 2017 MT 267, ¶ 28, 389 Mont. 183, 404 P.3d 733 ("MACo"). He argues that CI-14 implicitly changes Article II, Section 10, of the Montana Constitution, because Article II, Section 10, already protects a person’s right to a pre-viability abortion. Armstrong v. State, 1999 MT 261, ¶ 75, 296 Mont. 361, 989 P.2d 364. The Attorney General first suggests that CI-14 might "remove" the right to abortion from Article II, Section 10, of the Montana Constitution.

[2, 3] ¶13 Armstrong explains that the Montana Constitution, particularly within Article II, is "a compact of overlapping and redundant rights and guarantees" and the rights of procreative autonomy found within Article II, Section 10, of the Montana...