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A little-watched Montana race has become a contentious abortion fight [1]
['Karin Brulliard']
Date: 2022-10-12
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KALISPELL, Mont. — When the U.S. Supreme Court overturned Roe v. Wade, leaving abortion rights up to states, Montana stood out as an island of access in the northern Rocky Mountain states. The procedure remains available in a handful of clinics, including here in the deeply conservative Flathead Valley.
Abortion, the state’s highest court ruled in 1999, is guaranteed by individual privacy rights made explicit by the framers of Montana’s 50-year-old constitution, who sought to shrug off decades of influence by copper barons while projecting a stay-out-of-my-business, frontier ethos.
And that is one reason the race for one state Supreme Court seat, the kind of down-ballot election that is often unexciting and uncontested, may be the most contentious on the ballot this fall.
Since a tidal wave of GOP victories in 2020 took Montana from red to dark red, the state’s independent judiciary and constitution have faced attacks by the hard-line Republicans who now dominate. The outcome of the court contest, an ostensibly nonpartisan race between a veteran jurist and a GOP-backed attorney, will be seen both as a measure of how deep their brand of conservatism runs and a test of Montanans’ support for abortion access.
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“We have some very, very unique rights in our constitution, and we are in a time when we are seeing rights eroding,” the incumbent justice, Ingrid Gustafson, said last month at a meet-and-greet in an airy Kalispell home, where attendees included many who described themselves as progressives and some disaffected Republicans.
Her challenger, James Brown, sees it differently. “The Montana Supreme Court is notorious and has a well-earned reputation for legislating from the bench,” Brown said days before in rural eastern Montana, according to a video of the event, where he praised recent U.S. Supreme Court rulings on abortion, guns and environmental regulations as “major decisions for liberty.”
The race in Montana, where two of seven Supreme Court seats are on the ballot, is one of several that have shot to prominence since the nation’s highest court’s June ruling in Dobbs v. Jackson. Spending by activists on both sides of the issue is flowing into contests in Michigan, Ohio, Illinois and North Carolina, where results could determine which party controls the top court.
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But as abortion — along with polarizing issues such as redistricting and guns — highlight the power of state courts, they are also injecting more partisanship into races even in states where judicial elections are officially above the fray, as in Montana. A roster of the state’s GOP leaders, including Gov. Greg Gianforte, have endorsed Brown, while Gustafson has sought to deflect accusations that she is an ardent liberal under her neutral black robe.
The stakes are not immediate in Montana, where the race for a second Supreme Court seat, held by former Republican lawmaker Jim Rice, is viewed as uncompetitive. The court, which some experts say is among the nation’s more liberal, recently unanimously upheld a lower-court ruling temporarily blocking three new laws that would restrict abortion. No one thinks a shift in one seat would lead to major changes.
But Republicans — who in 2020 captured the governorship for the first time in 16 years and all statewide offices — have made clear they want to ban most abortions, and they have certain paths to get there.
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One would be by gaining two seats to win a legislative supermajority. That would allow them to put constitutional amendments on the ballot without Democratic support. They could also propose a constitutional convention to revamp a progressive document that one prominent Republican lawmaker has called a “socialist rag.”
The other would be by getting the Montana Supreme Court to overturn its 1999 ruling affirming abortion rights, which the state’s attorney general and Gianforte have asked the court to reverse.
The lack of urgency is cold comfort to those who view the court as a bulwark against one-party control over all three branches of state government.
“You look at it and think, well, one justice wouldn’t make that much difference,” Bob Brown, a former GOP secretary of state and senate president, said in an interview at Gustafson’s event in Kalispell. “But it won’t take that long … 5 or 6 or 10 years at the most, that hard-right element owns the Supreme Court in Montana.”
A war against the judiciary
Since Gianforte took office, the state’s newly empowered hard-line Republicans have openly challenged the judiciary, which they accuse of thwarting the conservative agenda they were elected to enact.
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In 2021, lawmakers formed a committee to investigate the judicial branch and subpoenaed Supreme Court justices’ personal and professional communications related to pending legislation — drawing a court challenge from Rice, the court’s most conservative member.
Republicans also passed a law allowing the governor to directly nominate judges, who were previously vetted by an independent commission, to fill vacancies. Another bill would have asked voters to decide whether to elect Supreme Court justices by local districts, rather than statewide. Both were challenged and went to the Supreme Court; the court upheld the first and rejected the second.
A host of other Republican-backed bills have also been challenged, including laws that restricted voting, which civil rights groups argued violate Native Americans’ voting rights. Several have not gone the GOP’s way: A law allowing open carry on the state’s college campuses, for example, was struck down by the Supreme Court. A district court last week ruled the voting laws are unconstitutional.
“A big part of the problem for Republicans is that the Montana constitution does not allow for some of the policies that they want to implement,” said Robert Saldin, a University of Montana political science professor.
But conservatives hold up the court rulings as evidence of activism. The Montana Family Foundation, which opposes abortion, recently outlined the Brown-Gustafson race in a radio update, arguing it was “time to balance the judiciary.” In another spot, its president called Dobbs an “awakening” that showed electing conservative justices could lead to an abortion ban in the state.
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“Montana voters are just fed up with the woke, liberal agenda of the Montana Supreme Court,” said Don Kaltschmidt, chairman of the state Republican Party, whose platform opposes nearly all abortions. “James Brown has got the values of Montana.”
What he doesn’t have, Gustafson argues, is experience. A former college ski racer, she practiced law for 16 years before being appointed by a Republican governor to the district court in Billings, the state’s busiest, in 2004. Former governor Steve Bullock (D) nominated her to the Supreme Court in 2017 — where, she says, 80 percent of the decisions she has written have been unanimous.
Gustafson, who said she has attended no events sponsored by political parties, has broad support from the legal community and Democrats, as well some moderate Republicans. She is endorsed by Marc Racicot, a former governor and chair of the Republican National Committee, who described the election in a recent op-ed as pivotal to an independent and impartial judiciary.
“Our judicial system is for Montanans,” Gustafson told supporters in Kalispell. “It is not designed to go out and represent some sort of special interest group or special party or special activist. And in my mind, if you’ve got judges that want to do that, that’s malpractice.”
To Brown and his backers, Gustafson’s resume is evidence she’s part of a judicial and trial lawyer elite hostile to business and friendly to criminals. Brown, a fourth-generation Montanan who is the elected Republican president of a state commission that regulates private utilities, has represented sheep farmers and funeral directors. He also was counsel for American Tradition Partnership, a conservative advocacy group that fought Montana’s ban on corporate political money in a case that went before the U.S. Supreme Court.
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Brown, who did not respond to numerous attempts to contact him, has not shied away from the Republican sheen on his candidacy. He acknowledges he was urged to run by Gianforte. The Republican State Central Committee has donated to his campaign. He has appeared at Republican-affiliated events, including one in eastern Montana where he spoke before a sign reading “Protect our guns! Vote Republican!”
“A single judge can undo the work of an entire legislature,” he said at the Custer County event, where he called himself a constitutional originalist.
Abortion on the ballot
Montanans will be asked explicitly about abortion in November: A legislative referendum on the ballot would require health care providers to try to save any infant born alive, including after attempted abortions, or face fines or jail time. Supporters say it would prevent the killing of infants — which is already illegal — while opponents say it would force providers to take extreme measures to treat infants with no chance of survival.
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Supporters of abortion rights in Montana say they are watching that referendum and the Supreme Court and legislative races warily, though with some optimism that the Dobbs ruling may actually bode well for their cause. More than half of Montanans say abortion should be legal, according to the Pew Research Center.
The public has “come to understand more and more that it’s their fundamental rights around privacy that are at stake here,” said retiring state Sen. Diane Sands (D-Missoula), a veteran of the abortion rights movement, whose seat is seen as one of the most competitive on the ballot.
Running for her seat are Republican state Rep. Brad Tschida, who recently told fellow legislators that a woman’s womb “serves no specific purpose to her life or well-being,” and Democratic state Rep. Willis Curdy.
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On a recent afternoon, Curdy — a rancher and retired teacher and smokejumper — knocked on doors in a middle-class neighborhood on the more conservative side of the district. Curdy repeated two points: That the state should pony up more for education, and that he supports Montana’s constitutional right to privacy, which, he explained, guarantees women’s right to make their own health care decisions.
Curdy did not say he was a Democrat unless asked. He did not utter the word abortion.
Some listened cordially, but stone-faced; some declined to take his flier. One man said he was glad to know “where you’re coming from” on privacy, which Curdy interpreted as meaning the man disagreed. One woman, learning Curdy is a Democrat, said “Nope!” and launched into a tirade against President Biden.
Several said he already had their vote. One bearded man, a little girl standing at his side, said he’d become a “one-issue voter,” referring to abortion rights. A woman perked up at the mention of the right to privacy, saying, “we need to stand up to the idiots running our state.”
“There’s a strong effort to make every woman in the state a second-class citizen,” Curdy said.
“There is!” the woman said. “They’ve already done it nationwide.”
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