BILLINGS — One of the most closely watched ballot measures on Election Night in Montana was CI-128, which is a constitutional initiative to protect the right to an abortion.
Voters approved the measure with a decisive 57% majority, securing its place in the state constitution.
The result marks a significant milestone in Montana's ongoing debate over reproductive rights, but the passage of CI-128 also raises important questions about its future impact, especially for those who may seek to challenge it.
There are three components to the measure: the mother's right to make her own healthcare decisions, protecting access to abortion where there is a threat to the mother's life in the state of fetal viability, and prohibiting the government from establishing penalties against mothers and healthcare professionals on these healthcare decisions.
The measure's passing prompted reactions on both sides of the issue.
“It was a little disappointing," said pastor St. Patrick Co-Cathedral Father Leo McDowell.
For the leaders within the Montana Catholic church, CI-128's passing came as a shock. McDowell expressed concern that the new protection could make it easier for individuals to access the procedure without sufficient scrutiny or support.
"It's always been one of the things the Catholic Church has been supportive of pregnant women and women in general. People say that we're trying to take away their rights, but a big part of the disappointment is all the possibilities are out there for sexual trafficking," said McDowell. “Now that it's a lot easier to get an abortion, it's easier to abuse someone and take them in and have them get that abortion and no questions asked."
For proponents of CI-128 like Bailey Desper, the measure's results were a relief and celebration after weeks of volunteering for the campaign and just two years after the U.S. Supreme Court overturned Roe v. Wade in the Dobbs decision.
“Towards the end of the campaign, it was exciting to see the support that I was receiving out there just being a friendly, engaged community member," said Desper. “I was very excited to see it go across the finish line."
With 336,514 yes votes to the 247,898 nos, it signals strong support for abortion rights in the state.
The right to an abortion in Montana has been shaped by a 1999 Supreme Court case that protects pre-viability abortion as a right to privacy. Fetal viability is the point at which a healthcare professional determines a fetus can survive outside the uterus.
CI-128 adds a layer to this, saying the state can only challenge abortion by arguing it has a 'compelling' interest, which makes it a more difficult barrier.
Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver and former University of Montana law professor Rob Natelson explained that, with this constitutional amendment in place, Montana’s legislature cannot easily change the measure.
“The fact that it amends the Constitution means that the legislature can't override it," said Natelson. "The only way it could be overridden or amended would be by another constitutional amendment adopted by the people.”
It would be possible to make that reintroduction effort, but the measure would be an uphill battle.
"I would not be terribly surprised if we were to see an effort to do signature-gathering ahead of that the next election cycle, or for something to come up in the legislature, but the likelihood of that passing, I think, is is relatively small,” said professor and head of political science at Montana State University Eric Austin.
Despite strong public support, Natelson argued that the language of CI-128 is vague and could lead to unforeseen consequences. He pointed out that terms like “healthcare provider” are not clearly defined and that there is no provision for parental consent if minors seek abortions.
"I think the people of Montana indicated that they want abortion to be legal, but the people may not be aware of some of the implications of some of the language,” said Natelson. “I suspect that CI-128 will strengthen or empower the court to extend the right to abortion, or the lack of rights for unborn life, depending upon how you view it, even further.”
Montana is not alone in passing measures that protect abortion rights in the wake of shifting national politics. Across the country, seven other states passed similar initiatives, Arizona, Colorado, New York, Maryland, Missouri, and Nevada. Three of which, like Montana, are primarily red states.
The passing signals the shifting values of turning to more conservative on fiscal issues, but more liberal on social ones, especially when framed as a matter of individual choice.
“Even as the electorate here in the state has moved a little bit further to the right, has become a little bit more conservative, this is an issue that is seen by a portion of the electorate as being about individual liberty and choice," said Austin.
Despite CI-128’s victory, opponents of abortion rights in Montana have made it clear that they will continue their efforts.
Father McDowell emphasized that the church would not back down, promising to continue advocating for what they believe is the sanctity of life.
“We're gonna continue, like I said before, taking care of the women. We're going to continue praying that maybe someday there'll be a conversion of heart and people realize that life really does begin at conception," said McDowell.
For now, though, CI-128 stands as a significant victory for abortion rights in Montana, ensuring that access to reproductive healthcare remains protected under the state’s constitution.
“I just want to, as a volunteer, keep the community engaged in any like civil engagement activities that we can do to kind of make things visual for the community [to] give some kind of hope and balance back to the community,” said Desper.
