I am opposed to all elective abortions, but I hope to find common ground with all voters regarding CI-128.
I urge everyone to look beyond the wording of this initiative as it will appear on the ballot and read the language which would permanently amend the Montana State Constitution if voters approve CI-128. That text is on pages 20 and 21 of the Montana Voter Information Pamphlet which we all received in the mail. Pages 22-25 contain arguments for and arguments against the measure.
The initiative language makes it clear that CI-128 would radically expand abortion in Montana, enshrining in the Constitution the right to an elective abortion through all nine months of pregnancy. Additionally, its vague language has important legal ramifications for parental notification and who may perform the procedure.
First, it is important to note that if CI-128 does not pass, elective abortion will remain legal in Montana. That is because a 1999 Montana Supreme Court decision, Armstrong v. State, found in favor of the right to an elective abortion “pre-viability.” There is no immediate danger of this decision being overturned. Earlier this year, in fact, the seven member Montana Supreme Court unanimously overturned a law that would have required parental consent for a minor to obtain an abortion citing Armstrong in its decision.
The ballot language of CI-128, much like the 1999 Armstrong decision, proposes an unlimited right to an abortion before fetal viability. What the ballot language does not tell you is that this Constitutional amendment also redefines the word “viability” in a way that renders it completely meaningless and arbitrary. For decades, viability has been understood to correspond to some period of gestation, generally between 21 and 26 weeks. But the proposed amendment language reads: “’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.”
The words “significant” and “extraordinary” are not defined and are left to the treating “health care professional” to interpret. Additionally, the term “treating health care professional” is also never defined, which means that anyone identifying as a “treating health care professional” could be making decisions regarding the viability of the fetus without any kind of review. Unfortunately, this opens the door for any pregnancy to be considered non-viable.
If you think this assessment is hyperbolic, listen to what Alex Rate, an attorney for the American Civil Liberties Union of Montana, had to say while promoting CI-128 at a Sept. 30 forum in Bozeman. The entire recording of the forum can be found at https://kgvm.org/program/election-2024/. My then 37-week pregnant friend asked Rate if her pregnancy would, at that moment, be considered viable. He could not say. He stated “If your doctor tells you the fetus is viable, then the fetus is viable.” She followed up and asked him if a 40-week pregnancy could be considered non-viable. Again, Rate could not say, deferring to the judgment of “health care professionals,” a term never defined in CI-128.
This is a situation which should shock the conscience of voters. How could proponents of CI128 not mention in the ballot language their radical redefinition of the word “viability”?
Next, the amendment says abortions must be permitted after viability if the “life or health” of the mother is at risk. Of course, the life and health of mothers is always of paramount importance. But proponents of this amendment never bother to define the word “health.” They must be considering health much more broadly to include such things as psychological distress and financial or familial situations because, if a serious threat to the mother develops late in pregnancy, it is much faster and safer to deliver a baby, who may live, than to perform an abortion which ensures the baby will not be born alive.
CI-128 also has troubling implications for young girls who become pregnant, and their families. The word “woman,” which implies adulthood, appears nowhere in the initiative. Instead, the words, “pregnant patient” are used. Robert Natelson, a constitutional scholar at the Independence Institute, explains in a memorandum on CI-128, “the wording seems to include children in parental custody [. . . ]. This wording threatens the integrity of Montana families and exposes children to abusive practices by people outside the family.”
If an adult woman would not be expected to notify anyone of her abortion, then neither would a very young girl. Montana currently requires parents be notified if a minor under 16 is seeking an abortion. If a minor feels unsafe to notify her parents, there is a judicial bypass procedure to have this requirement waived. I think it is a very good idea for someone to be looking out for the safety of such young girls — whether that be her parents or a judge. But CI-128 could eliminate parental notification because it could be viewed as a burden to abortion access.
With its intentionally vague language and radical redefinitions, CI-128 paves the way to allow elective abortion at any point in pregnancy. It provides a pathway for abortion providers to use our courts to remove Montana’s current parental notification requirement, which protects very young girls and their families. It never defines which “healthcare professionals” may approve and perform abortion procedures. If that makes you uncomfortable, please join me in voting “no” on CI -128.
Moran lives in Boulder.
