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Abortion access in Montana could hinge on state Supreme Court elections

The Montana Supreme Court hears oral arguments in a case at the University of Montana's Jane and George Dennison Theatre, April 15, 2022.
Freddy Monares
Montana Public Radio
The Montana Supreme Court hears oral arguments in a case at the University of Montana's Jane and George Dennison Theatre, April 15, 2022.

Montana Republicans are zeroed in on the races for two state Supreme Court seats this election cycle which could decide the future of access to abortion in Montana.

“Louder, I want it three times louder,” Montana Republican Party vice chair Lola Sheldon-Galloway says as she leads a rallying cry at the end of a banquet kicking off the party’s state convention.

The Republican delegates to the convention chanted the names of Jim Rice and James Brown, two candidates running for seats on the Montana Supreme Court. Rice is a sitting justice on the state Supreme Court, and Brown is an attorney. Both are seen as conservative candidates, although the election is nonpartisan.

“It’s going to be historic for the sake of our conservative values that we don’t forget about James Brown and elect him to the Montana Supreme Court,'' state GOP chairman Don Kaltschmidt says.

There’s a list of reasons Montana Republicans are laser-focused on the judiciary.

At the top is to ban abortion. That’s because in 1999 the state Supreme Court said Montana’s constitutional right to privacy protects access to abortion in the state. Republicans are looking for a way around that precedent, known as the Armstrong decision.

Attorney General Austin Knudsen has asked the state Supreme Court to overturn Armstrong, and that request is pending. The Montana GOP adopted a platform at its convention to support a complete ban on elective abortions with no exceptions.

Jeff Laszloffy with the conservative Montana Family Foundation updated radio stations across the state.

“We can either amend the Montana Constitution to ban abortion or we can replace enough justices on the Montana Supreme Court to to overturn the Armstrong decision,” he says.

He says the overturning of the Roe v. Wade decision gives him hope.

“For the first time in decades, we have proof, not just theory, but in practice, that bad Supreme Court decisions can, in fact, be reversed.”

In 2020, Republicans won all statewide elected offices and gained 10 seats in the state Legislature. Placing conservative justices on the state Supreme Court could cement conservatives’ control in each branch of government.

One Democrat who’s advocated for abortion access since the 1960s is state Sen. Diane Sands.

“This is not a problem that the federal government can solve.”

She recently visited the White House for a roundtable with Vice President Kamala Harris and highlighted Republican legislation passed last year. The legislation Sands discussed gave Montana’s governor unilateral power to appoint judges to vacant benches in-between elections. That was previously the job of an independent commission.

“In the long game, these forces in Montana are going after the Montana Constitution because they know it is the sole barrier to achieving their goal of making abortion illegal,” Sands said.

Montana Democrats are putting their weight behind incumbent state Justice Ingrid Gustafson who faces Brown in the general election. Experts say it’s likely to be an expensive race.

Douglas Keith is counsel at the Brennan Center for Justice focused on the courts.

“For lots of us, the importance of state supreme courts is really just coming into focus.”

But that focus on state supreme courts, Keith says, has actually been growing since the 1980s. It’s just become more widespread and spendy.

“In 1999, around seven states had judges who’d run in a million-dollar race, but by 2016, 20 states had a judge who’d run in a million-dollar race.”

Those numbers are adjusted for inflation.

Keith says partisan, dark money groups have been getting involved in these races, and that the biggest spender in judicial elections today is the Republican State Leadership Committee, which has contributed to James Brown’s campaign.

While the state Supreme Court election is still months away, access to abortion in Montana has already changed due to legal uncertainty.

Martha Fuller, president of Planned Parenthood Advocates of Montana, says the organization has decided to stop offering medication abortions to out-of-state patients out of concern for legal liability if they prescribe to people who can take pills home to a state where abortion is now a felony.

“We have state constitutional protections for the right to an abortion. And yet, it is a state that is politically, currently, incredibly hostile to access to abortion. And so navigating that territory is very different than working in a state where abortion is protected.”

Montana is an island among states in the mountain west that have banned abortion or will do so soon.

“The extreme anti-abortion Republicans here in Montana want to end access to care. And we’ve also heard public statements from folks in the anti-choice movement about not wanting Montana to be a state where people come to.”

Surgical abortions will still be available to out-of-state patients.

Fuller expects the legal landscape to become more clear over the next couple of months. The makeup of the state Supreme Court will be decided in November.

Shaylee covers state government and politics for Montana Public Radio. Please share tips, questions and concerns at 406-539-1677 or  
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