Lawmakers talk constitutional changes, abortion lawsuits and 'sex'

Montana's attorney general threatens to sue Walgreens over the abortion pill. The 2024 ballot could have a slew of proposed changes to the state constitution on it. Gov. Gianforte takes to the Capitol steps to celebrate a major legislative win. And some Republican lawmakers propose a definition of sex, they say for the sake of clarity.

Capitol Talk is MTPR's weekly legislative news and analysis program. MTPR's Sally Mauk is joined by Lee Newspapers State Bureau Chief Holly Michels and UM Political Science Professor and Mansfield Center Fellow Rob Saldin.

Sally Mauk Rob, a new federal rule allows pharmacies to distribute abortion pills but 20 attorneys general from around the country, including Montana's A.G. Austin Knudsen, are threatening to sue if they do so. Many pharmacies like Walgreens say they won't distribute the pills in the states that have threatened to sue, including Montana. But what's interesting and a little confusing is that most of these states have banned abortion, but it's still legal in Montana. And if it's legal here, what would be the basis for the suit?

Rob Saldin Yeah, right Sally So this is part of a larger national dispute over medication abortions. Right? So, some 20 years ago, the FDA approved an abortion pill, but accessing it wasn't very easy. You had to go and physically get it from your doctor. Of course, for a long time, the popular understanding of abortion and all the focus wasn't on this pill. It was on surgical abortions performed at clinics because those accounted for the overwhelming majority of abortions. Well, during the pandemic, some of the restrictions on accessing the abortion pill were eased. Notably, you could get a prescription via telehealth and then you could have the pill mailed to you. Perhaps partly because of this easier access, the other thing going on is that the use of this pill, relative to going to a clinic, has increased to the point that as of last year, taking the pill is now the most common way of obtaining an abortion. So a couple months ago, the FDA announced that it was going to ease restrictions again and established a process by which these pills would be available from pharmacies. So that's the backdrop to this letter from the attorneys general that was sent to Walgreens.

Now, for abortion rights people in states where abortion is legal, like Montana, expanded access to this pill is a positive development. It's an easier, less stressful way of accessing a legal procedure. But abortion opponents, among other objections, see opportunities for abuse. They worry that this could provide an end run around restrictions on abortions in their states. Now, none of those objections are relevant in Montana, at least not right now. But there are also some complicated issues regarding the use of the mail. That's what's doing a lot of work in that letter that the A.G.'s sent. They're pointing to a federal law that they say clearly prohibits mailing or receiving any drug that can be used for an abortion. Now, the law in question is from a long time ago, way before accessing this pill became so common. And the Biden administration, they interpret this in a way that they say it's just not a problem for any of this. But the A.G.'s are contesting that. So it looks to me like this is going to be litigated. And that seems to be what prompted the Walgreens response.

Walgreens says it won't distribute medication abortion pills in Montana

Walgreens pharmacies will not distribute medication abortion pills in Montana, although the procedure remains legal here.

Sally Mauk And there's a case in Texas that could make this all moot. But this isn't the first time, Rob, that Attorney General Knudsen has signed on to a letter generated elsewhere to support or oppose some controversial issue.

Rob Saldin Right. You know, for most of the attorneys general who signed that letter it makes total sense because abortion is heavily restricted or illegal in their states. But abortion remains legal, of course, in Montana. So, it's a little bit more of a stretch for Knudsen. But regardless of how this shakes out, I think from Knudsen's perspective, this is a high-profile political win. And it's hard at this point to conclude that that's not something he pays a lot of attention to. He does, as you suggest, Sally, he latches on to all these lightning rod issues even when he doesn't have to, even when it's not clear that it's necessary or even appropriate for the office that he holds. But I think he sees it as a good way to build his brand, raise his profile and set himself up for a higher office.

Sally Mauk Holly, the Legislature is considering some constitutional amendments to restrict abortion and loosen gun restrictions, and a bunch of other things. Those who support the Constitution as is, or pretty much as is and who oppose the amendments, rallied at the Capitol this week.

Holly Michels Yeah, this is actually the second rally we've seen held in the Capitol rotunda this session to, like you said, by people who support the Constitution and oppose changes to it. And it's something we talked a lot about on this show in the fall during election season. It was also a major talking point for Democrats concerned about a Republican supermajority and their ability to propose changes to the Constitution for voters to weigh-in on. And we've heard Democrats continue that concern into this session, too. In these rallies we've heard reference to, there's more than 50 constitutional amendment proposals that have been requested by Republican lawmakers this session. So far, we've seen just seven of those introduced.

Constitutional change would expand hunting, fishing & trapping protections

State Republican lawmakers are again lining up in support of a change to Montana’s Constitution that could expand existing protections for hunting and fishing and make it more difficult to regulate trapping.

And earlier this week, a Republican spokesperson for the House said there's about a dozen of the amendments that the party's prioritized for this session. We heard some of those get their first hearings recently. That includes a constitutional carry amendment. There's also the right to hunt. And that would enshrine current methods allowed in the state. And there's a change to the Legislature's powers over the board of regents that govern college campuses.

Then there's several others that are coming soon. That includes two from Representative Bill Mercer. He's a Republican from Billings, and his are related to the state Supreme Court. One of his would change the Supreme Court justices from being elected by voters to being appointed by the governor. And another he has would revise the term limits for those justices.

There's also two about the redistricting process. One would stop the redistricting commission from considering data about political affiliations or past election results in drawing districts. And the other would actually have the Legislature approve the redistricting maps at the end. Both of those are from Republican Representative Jedediah Hinkel of Belgrade. And I think those are speaking to Republican frustration about the redistricting process we had that just wrapped up.

We also have Speaker of the House Matt Regier. He's got a proposal that would prohibit public funding of abortions, except in some cases.

And then Representative Lee Deming of Laurel has a personhood amendment.

Then outside of those themes, there's also ones about changing ownership of biometric data, allowing for runoff elections and establishing a state trust fund.

So, all of these bills would need 100 votes out of the 150 legislators to clear the session. There's 102 Republicans with that supermajority. So if the party voted together, they'd be able to move these types of bills without any Democratic input. But we heard from some Republicans they don't think it's a given that the party is going to vote in a block on some of these proposals.

Even if these do pass the Legislature, they still need to go before voters in the 2024 general election to approve or deny. And we hear Republicans continuing to make the point that it is voters who decide in the end. So, they're arguing this is just direct democracy in its best form.

Sally Mauk Well, we could have a very busy ballot in 2024 if most of these do pass.

Rob, Governor Gianforte held a bill signing on the Capitol steps to celebrate passage of his tax rebate and budget proposals. It was a great photo op for the governor to brag about fulfilling his promises to taxpayers.

Rob Saldin Yeah, Sally, and he's certainly not the first governor to take to the Capitol steps for a little pomp and circumstance. In fact, this looks fairly subdued compared to Schweitzer's show when he would bring out the branding irons to veto bills.

But look, you know, one can obviously object to various aspects of what the Legislature passed and Gianforte has now signed into law, and we've discussed some of that in past weeks. But regardless of that, this package does amount to a major win for Gianforte and his Republican allies. They campaigned on this and and now they've delivered. The other thing here is a Gianforte and a number of the Republicans in the Legislature, like Llew Jones, they've been dedicated to this kind of thing for a long time. They believe in it. They think it'll do some good. So, they're certainly entitled to take a victory lap.

One thing I wonder about a little, though, is how much these kinds of policies still resonate with Republican voters. The salience on this kind of stuff seems to have declined a bit. This used to be standard fare, but in recent years, tax cuts and the like just seem to be much less important than social issues and the culture war in the minds of regular GOP voters. But still, bottom line, this was a big priority for the governor and some of the key figures in the Legislature, and they certainly want people to know about it.

Sally Mauk Well, Holly, the state Senate this week passed Senate Bill 458, and that defines a male as someone who produces sperm and a female as someone who produces eggs. What's behind this bill?

Holly Michels Yes, So, the bill is from Senator Carl Glimm, a Republican from Kila. And he has said the bill is necessary because it's the Legislature's job to define terms of law. And he sees confusion, in his eyes, between sex and gender as those terms being improperly conflated. And Glimm has used as an example a judge's order blocking a law he passed last session that would require a person to have gender affirming surgery and petition a court to update the sex marker on their birth certificate. Glimm has said in that judge's order, the judge, he's saying, is confusing sex and gender, so that's why the Legislature needs this clarification in law. He also said that if legislators want to bring a bill to define gender, they're welcome to and should do that. We heard a lot of opposition from this bill when it was heard in committee and also from Democrats on the floor when it was debated in the Senate. They've disputed the need for this bill. They've criticized the definitions that Glimm has used as not sophisticated or scientific enough. They also say that it cuts transgender Montanans out of recognition in state code.

Montana Senate endorses proposal to limit definition of ‘sex’ in state code

The Montana Senate has endorsed a proposal to eliminate legal recognition of intersex, transgender and nonbinary Montanans.

Sally Mauk Well, here's what Ezekial Cork, a transgender man, had to say about whether the bill is necessary.

"I ask each one of you to look inside and ask yourself, 'how does this person's existence affect how I live my own life?' I ask that you try to look beyond your personal biases and realize that this bill affects humans full of complexities just like you."

Sally Mauk But the bill's sponsor, fellow Republican Carl Glimm, as you mentioned, Holly, he thinks it's needed to prevent sex and gender from being conflated.

"We need to know what we're going to talk about. If we're going to talk about sex, we're going to use these definitions. If you want to talk about gender, I encourage you to come up with a definition for that and put it in code."

Sally Mauk Well, the other issue, Holly, is that there's debate on what the financial impact of the bill might be.

Holly Michels Yeah, we did hear a lot of intense testimony like we heard that we just played there. But sort of the discussion as this bill's progressed has focused, like you said, on financial impact. We had a hearing in Senate Finance on Glimm's where legislators really drilled down on what's called a fiscal note. That's a document produced by the governor's Office of Budget and Program Planning. And that document said the bill would have no fiscal impact. But in the process of producing that note, when that office reaches out to state agencies, they report back about how they think the bill might affect them. Two agencies did report back that they thought the bill could end up costing the state money, either because of potential lawsuits or the loss of federal funding. Those two agencies were the Department of Corrections and the Office of the Commissioner of Higher Education. And the note from corrections said conflicts with federal law could create court liability, and that could create what they called a possible significant fiscal impact. Glimm has disputed that by saying that fiscal notes in the past don't take into account the potential for lawsuits and that anyone could sue the state over anything.

But Democrats have requested a deep-dive fiscal review, which is a process where an analysis will be done by the Legislature's fiscal division, so, a different group than the previous one. Democrats actually wanted to hold off on the Senate vote before this document was ready. They wanted to look at it to be able to debate it. That didn't happen. So we're going to be looking to later in the session to see what those details might show.

Sally Mauk Rob, bills like this that strain to define sex or that limit abortion or push gun rights to the extreme, they get Montana national, if not worldwide, attention that some tourism and economic development officials have nightmares about.

Rob Saldin Yeah, we'll see if that actually comes to fruition. One thing going on here is that Montana is just one of many states pursuing this kind of thing. And it seems like it could be very difficult for opponents to drum up the kind of necessary, targeted and focused pushback to really create a kind of boycott-like situation. And so it's different in that sense than like Arizona back when it was a holdout on Martin Luther King Day or South Carolina when it was flying the Confederate flag atop its dome. It's just going to be more difficult, I think, to sustain that kind of organized pushback when you're dealing with, you know, roughly half the country.

Sally Mauk Well, the days are getting longer in more ways than one. And Holly and Rob, I'll talk to you next week. Thank you.

Holly Michels Thanks, Sally.

Rob Saldin Thanks, Sally.

Capitol Talk is MTPR's weekly legislative news and analysis program. MTPR's Sally Mauk is joined by Lee Newspapers State Bureau Chief Holly Michels and UM Political Science Professor and Mansfield Center Fellow Rob Saldin.