Montana Voters to Decide on Constitutional Initiative 128 for Abortion Rights

With a week until the Nov. 5 election, Montana voters will decide on Constitutional Initiative 128 about abortion rights.
Montana’s abortion rights amendment, explained.

As the Nov. 5 election approaches, Montanans are deciding on Constitutional Initiative 128, a proposed amendment to secure abortion rights in the state Constitution. This continues a trend seen in nine other states this fall, following the 2022 cessation of federal abortion protections by the U.S. Supreme Court. To aid voters, the Montana Free Press addresses prevalent queries about CI-128 from both sides of the debate.

WHO SUPPORTS AND OPPOSES CI-128?

CI-128 is championed by Montanans Securing Reproductive Rights, which includes organizations like Planned Parenthood of Montana and the ACLU of Montana. Additionally, the Committee to Protect Health Care has rallied hundreds of Montana health professionals in support. However, the American College of Obstetricians and Gynecologists remains neutral, citing concerns about regulating abortion based on fetal viability.

Opposition comes from groups like Susan B. Anthony Pro-Life America and the Montana Family Foundation.

IS OUT-OF-STATE SUPPORT INVOLVED?

Yes, Montanans Securing Reproductive Rights has been criticized for obtaining significant funding from out-of-state political action committees, including Think Big America. Conversely, out-of-state groups oppose the initiative, with Susan B. Anthony Pro-Life America and others reporting $160,000 in expenditures against CI-128. However, these groups do not need to channel funds through local PACs, making financial tracking complex.

HOW WOULD CI-128 IMPACT ABORTION ACCESS?

CI-128 is unlikely to alter immediate abortion access in Montana. The Montana Supreme Court’s 1999 decision in Armstrong v. State protects pre-viability abortion under the state’s right to privacy. CI-128 would prevent the state from burdening abortion rights before viability, requiring a ‘compelling’ reason for any restrictions. The amendment provides a definition of ‘compelling’ which some say could hinder future regulations.

WOULD CI-128 CHANGE THE DEFINITION OF VIABILITY?

Yes. CI-128 defines fetal viability based on a healthcare professional’s judgment, rather than gestational weeks, allowing for case-by-case decisions. This mirrors the current understanding under Armstrong, leaving medical providers the freedom to assess viability. Opponents suggest it could lead to late-term abortions, a claim refuted by medical experts.

WHO WOULD PRACTICE ABORTION UNDER CI-128?

CI-128 mentions ‘treating health care professionals’ without detailed definition, but Montana case law already permits physician assistants and nurse practitioners to perform abortions within their scope. CI-128 wouldn’t alter existing medical practice regulations. Providers must adhere to current medical and legal standards, ensuring only qualified professionals perform abortions.

IMPLICATIONS FOR EXISTING LAWS

CI-128 could affect existing laws like state Medicaid abortion funding and parental notification, both currently under judicial review. While it may not directly resolve these legal challenges, it could clarify judicial scrutiny levels. Disagreements persist, with some predicting CI-128 might reshape legal interpretations, especially regarding autonomous decision-making.

IS CI-128 VAGUELY WORDED?

Future legal interpretations may be needed for certain CI-128 provisions, such as ‘autonomous decision making.’ While some view the language as extensive, it’s not unusually vague compared to other constitutional rights. The existing right to privacy itself is succinctly described, but CI-128 is relatively detailed by comparison, potentially limiting future litigation.


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