With one week left until the Nov. 5 election, voters across Montana are deciding whether to support or oppose Constitutional Initiative 128, an amendment to enshrine protections for abortion rights in the state Constitution. Nine other states will vote on similar ballot initiatives this fall, a continuation of a trend since the U.S. Supreme Court erased federal protections for abortion in 2022. Montana Free Press set out to answer some of the most common claims and questions about CI-128 raised by proponents, opponents, and everyday voters before residents go to the polls. Here’s what we found.WHO’S SUPPORTING AND OPPOSING CI-128? The proposal is backed by the ballot issue committee Montanans Securing Reproductive Rights, which is composed of a mostly in-state coalition of organizations including Planned Parenthood of Montana, the ACLU of Montana and Forward Montana.CI-128 has also garnered support from hundreds of Montana health care professionals through the national political action group Committee to Protect Health Care. A spokesperson for another prominent national medical group, the American College of Obstetricians and Gynecologists, told MTFP the group does not endorse CI-128 because the initiative would allow abortion to be regulated differently based on fetal viability (an issue we’ll get into more later).Some of the most prominent organizations working to defeat the initiative include Susan B. Anthony Pro-Life America, Students for Life Action, the Montana Family Foundation and Montana Catholic Conference Social Advocacy.IS THE AMENDMENT ATTRACTING SUPPORT FROM OUT-OF-STATE GROUPS? Yes. Opponents of the initiative have attacked Montanans Securing Reproductive Rights (which has spent donations on digital and television advertisements, mailers, yard signs and more) for raising millions from out-of-state political action committees. Those PACs include Think Big America, Global Impact Social Welfare Fund, Advocacy Action Fund and the Sixteen Thirty Fund.As mentioned earlier, out-of-state groups are also organizing against CI-128, but that money is more difficult to track. Susan B. Anthony Pro-Life America and Students for Life Action have so far reported spending in aggregate about $160,000 on canvassing and materials to oppose CI-128. But unlike MSRR’s donors, those groups can draw on their national coffers without transferring lump-sum donations to in-state political action committees, making an upfront investment from out-of-state opposition groups hard to calculate. HOW WOULD CI-128 CHANGE ABORTION ACCESS IN MONTANA? This is the big question on the minds of many voters. In a nutshell, it’s unlikely that the amendment would expand or restrict anything about abortion access in Montana — at least not in the short term. Let’s break down why not.Currently, the legality of abortion in Montana is shaped by a 1999 Montana Supreme Court decision, Armstrong v. State. That ruling found that pre-viability abortion is a personal medical decision protected by the state Constitution’s right to privacy. The Armstrong decision allows the government to constrict the privacy right if it establishes a “compelling state interest,” a bar that no challenged state law has since managed to clear. Notably, the Armstrong ruling did not explicitly define “viability” as it relates to fetuses, functionally leaving that determination up to medical providers on a case-by-case basis.“Viability does not have a clear definition under the existing law in Montana,” said Constance Van Kley, a constitutional law professor at the University of Montana School of Law. After Roe v. Wade codified pre-viability abortion rights in 1973, some states began to try to chip away at abortion access by legislating viability at earlier and earlier points, Van Kley said. But in Montana, the unspecific framework of the Armstrong decision has remained in place.Because of that, many abortion providers in Montana have self-imposed limits on when they practice the procedure based on a clinic’s medical capabilities or concerns about liability. Providers in hospital settings can and do practice abortion when fetuses with serious anomalies are not viable and when pregnant patients experience severe health complications.That’s the current landscape stemming from the Armstrong decision. So, what would CI-128 change?When it comes to Montana’s current medical practices, nothing apparent. If passed, CI-128 would explicitly prohibit state government from “denying or burdening” the right to abortion before fetal viability except when the state demonstrates a “compelling” interest. That sets up a test similar to the one laid out in Armstrong, with one notable difference. CI-128 defines a government interest as “compelling” if it clearly addresses a medically acknowledged, bona fide health risk “and does not infringe on the patient’s autonomous decision making.”Montana’s former Solicitor General Dale Schowengerdt, who held the position under Republican Attorney General Tim Fox, said that last phrase would become a significant obstacle for lawmakers seeking to pass future abortion regulations. Schowengerdt is opposing CI-128.“That’s a really unique provision,” Schowengerdt said. “To me, that would make it extremely difficult to enact even common-sense restrictions.” CI-128 would also take a step toward clarifying a current gray area created by Armstrong by allowing the government to regulate abortion “after fetal viability,” except when the procedure “is medically indicated to protect the life or health of the pregnant patient.” We’ll explore CI-128’s proposed framework for viability next. WOULD CI-128 CHANGE HOW MONTANA DEFINES VIABILITY? Yes. CI-128 lays out a definition for “fetal viability,” but not one that’s based on weeks of gestation. Here’s what the amendment says:“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.That’s a big definition to unpack. Here are two main takeaways: First, CI-128 leaves the determination of fetal viability up to the treating medical provider on a case-by-case basis, though with caveats that could be hashed out in future litigation. Second, this section of the amendment provides a more comprehensive definition of fetal viability than anything currently in Montana state law or legal precedent. That makes this part of CI-128 one of the most significant potential additions to Montana’s regulatory landscape. That said, it might not change much for medical providers. Dr. Leah Miller, an obstetrician in Missoula, said CI-128’s language reflects how she and other providers currently understand the Armstrong decision and exercise their medical judgment in accordance with that precedent. “Armstrong allows us to make the best medical decision with a patient and their family about their pregnancy and the way to move forward,” she said. Opponents have claimed that by allowing medical providers to interpret viability, CI-128 would open the door to abortions of viable fetuses in the final weeks of pregnancy, echoing an often repeated falsehood about abortion that medical experts have rejected as deeply distorted. Miller, who is supporting CI-128, called the argument “offensive” and an attack on “our entire profession.” Dr. Carey Downey, a family medicine physician in Butte who is supporting the initiative, said CI-128’s language reflects that determinations of viability aren’t as simple as establishing gestational age. “These situations are so difficult and so nuanced,” Downey said. “As a doctor, I spent my life in the nitty-gritty. There are so few black-and-white answers about anything, but especially around pregnancy.” WHO WOULD BE ALLOWED TO PRACTICE ABORTION IN MONTANA IF CI-128 WERE TO PASS? A careful reader might have noticed the phrase “treating health care professional” in the initiative’s definition of fetal viability. That term does not have its own explanation in CI-128, but has been somewhat clarified through Montana’s abortion case law.Lawmakers in Montana have tried to limit which types of medical providers can practice abortion since the 1990s. Those restrictions have led to extended legal battles, with courts eventually ruling that physician assistants and advanced practice nurse practitioners, in addition to physicians, may perform abortions within their respective scopes of practice. The most recent of those rulings, related to APRNs, came down in 2023.This question brings us to one aspect of Montana’s abortion landscape that CI-128, on its face, wouldn’t change. The practice of medicine is heavily regulated and closely monitored, including by state licensing boards specific to different professions. Those are just some of the restrictions that make it so chiropractors, for example, don’t do root canals and dentists don’t do open-heart surgery. If they want to keep their medical licenses, abide by their professional ethics and avoid legal trouble, providers are barred from meandering into corners of the health care field they haven’t studied or been cleared to practice in. The same holds true for abortion. “If CI-128 passes, abortion care will be provided by medical providers who are trained and certified to provide abortion care,” Van Kley said. When it comes to the various types of abortion practiced in different scenarios, she continued, CI-128 “will not extend surgical or prescribing authority to other health care providers.”It is possible that future lawmakers in Montana will continue the trend of attempting to regulate who is medically qualified to provide abortion, Van Kley said. But future courts will likely consider the same question raised in prior cases: Does the proposed restriction conform with a “compelling” state interest in addressing actual medical risks? Or does the law functionally limit the practice of abortion by imposing arbitrary limits on medical providers? If it’s the latter, Montana courts would likely find the proposed law unconstitutional, in line with decades of precedent, regardless of CI-128’s passage.WHAT WOULD CI-128 MEAN FOR LAWS PASSED BY THE MONTANA LEGISLATURE THAT RESTRICT THE PRACTICE OR AVAILABILITY OF ABORTION? Initiative opponents have highlighted two types of law they say would be struck down if CI-128 passes: restrictions on state Medicaid funding for abortion, and parental notification before minor patients can terminate their pregnancies. Both areas of law are already being litigated in Montana’s state district courts, as are several other abortion restrictions passed in 2023. Van Kley said that, if it passes, CI-128 may not resolve the underlying legal issues at play when it comes to Medicaid coverage for abortion and parental notification, namely the right to equal protection and legal protection for minors.If the cases explicitly deal with the right to abortion, Van Kley said, CI-128 might not create markedly different outcomes than those produced by current case law deriving from the right to privacy.“I don’t know that would actually change things, but it would make it clearer what level of scrutiny to apply,” Van Kley said. “I don’t know that it would actually alter the outcome.”When it comes to parental notification laws, Schowengerdt disagrees. He said he expects the proposed amendment would create a new legal landscape for litigation, particularly because of CI-128’s provision about “autonomous decision making.”AS FAR AS CONSTITUTIONAL RIGHTS GO, IS CI-128 VAGUELY WORDED? This question calls for a two-part answer. Are there elements of CI-128 that would remain to be defined in future legal battles? Yes. In addition to the “autonomous decision making” phrase, Schowengerdt highlighted another CI-128 provision that guards against prosecution for a person’s “actual, potential, perceived, or alleged pregnancy outcomes.” While the language may be aimed at protecting pregnant women from criminal investigations after miscarriage or abortion, Schowengerdt said, the provision may prove complex for courts and lawmakers to interpret. “Constitutions shouldn’t be written like statutes,” Schowengerdt said. “It seems to me that they’re putting a lot in there.” On the other hand, is CI-128 vague when compared to other fundamental rights laid out in the Montana Constitution? No.“The right of privacy is vague,” Van Kley said, referencing the current Montana right that is spelled out in exactly 27 words. “And that is, honestly, kind of appropriate … to have a broad statement of principle. That is how constitutional language often reads.”By that standard, Van Kley said, CI-128 is both long and relatively detailed. “Is it still possible that there might be some issues that get litigated? Yes, but far fewer than if you’re looking at the right to privacy,” she said.The post Making sense of Montana’s abortion rights amendment appeared first on Montana Free Press.