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Montana Supreme Court won't hear case challenging abortion amendment • Daily Montanan [1]
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Date: 2025-07-02
Tuesday marked the first day that Montanans can say that abortion — up to the point of viability — is protected specifically through an amendment in the state’s Constitution.
Voters in November overwhelmingly supported the constitutional right, even though the procedure has long been legal, and Constitutional Initiative 128 became the law of the state, despite a last-minute legal challenge.
That challenge was rebuffed on Tuesday by a unanimous decision of the Montana Supreme Court not to hear the case brought by several individuals and the Montana Life Defense Fund, a committee association with the Montana Family Foundation. The lawsuit asked the high court to intervene, halt the amendment from going into effect, and declare it void, due to concerns that voters on Election Day did not have enough information to properly decide the issue.
The Supreme Court dismissed the late challenge, and said that the suit was poorly timed and didn’t even develop a set of facts adequately. Meanwhile, the Montana Family Foundation said while it was disappointed in the decision, it would continue the fight at the district court level.
“We remain confident in the strength of our arguments and will now proceed at the district court level. While today’s decision is a setback in timing, it is not the end of the road. This is justice delayed — not justice denied,” said Derek Oestreicher, chief legal counsel for the Montana Family Foundation.
Two plaintiffs, Joe Addy and Hannah Rhodes, had asked the high court to intervene and invalidate CI-128, which makes abortion legal up to the point of fetal viability. They argued that because the text of the entire amendment was not printed fully on the ballot, and because voters who registered to vote on Election Day did not have the full text or the voter information booklet issued by the state, they were not adequately informed.
However, the Montana Supreme Court rejected all of those arguments and criticized the plaintiffs for bringing the challenge just a few weeks before the abortion amendment was to be enacted.
Moreover, the court said that CI-128 was handled the same way as every other ballot measure since 1978, so that if the court would have accepted the argument, it opened up the possibility that all amendments since were also constitutionally deficient.
“Any urgency of emergency that exists is entirely of the Defense Fund’s own making, because it waited seven months to file this petition,” the court said in the seven-page order, which outlined why it turned down the request. “We have repeatedly warned parties they cannot manufacture an emergency due to lack of diligence.”
While the plaintiffs said they did not know what they were voting for or against by registering to vote on Election Day with the full text of the amendment not printed on the ballot, the court criticized them because copies of the full voters’ guide and the full text are required to be available at every voting precinct.
“The Defense Fund does not tell us how many election-day registrants exist for the 2024 General Election, nor does it assert that the number of election-day registrants was sufficient to change the outcome of this vote,” the court noted.
The Supreme Court also pointed out that state law requires the Montana Secretary of State to print a voter information guide, as well as preparing the ballot information for publication in newspapers or other platforms at the county and state level.
In addition to publishing the text in newspapers around the state and having voting guides sent to all registered voters and available at the polling locations, the Supreme Court said that “the Secretary of State maintains a website, accessible to the public, that includes the (Voter Information Pamphlet) along with other information about Montana’s elections.”
“The Defense Fund has not demonstrated that the electorate was not provided with the full text of CI-128,” the order said. “…And it has not developed the facts necessary to support its legal arguments.”
The unanimous five-justice panel which signed the order included Chief Justice Cory Swanson, and Justices Ingrid Gustafson, James Jeremiah Shea, Katherine Bidegaray and Beth Baker.
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