Montana Supreme Court Declines to Block Abortion Amendment as CI-128 Takes Effect, Legal Fight Continues

HELENA, MT — The Montana Supreme Court declined to take up a legal challenge to Constitutional Initiative 128 on Monday, the same day the abortion rights amendment took effect as part of Montana’s constitution.

The Court’s decision not to exercise original jurisdiction over the Montana Family Foundation’s challenge means the case will now proceed through district court, as legal experts anticipated.

Derek Oestreicher, Chief Legal Counsel for the Montana Family Foundation, expressed disappointment with the timing but said the legal battle is far from over.

“The Montana Supreme Court has unfortunately chosen not to weigh in on this case at the outset,” Oestreicher said in a statement. “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.”

CI-128 Now Part of Montana Constitution

As of July 1, CI-128 is officially part of Montana’s constitution. The amendment, which passed in November 2024, establishes constitutional protections for abortion access in Montana.

The Montana Family Foundation characterizes the measure as “a radical abortion amendment that strips Montana of virtually all ability to regulate abortion—even up to the moment of birth.” The organization argues the amendment “prohibits virtually any form of state regulation on abortion,” including protections for women’s health and regulations on abortion facilities.

Legal Challenge Continues in District Court

The Montana Family Foundation’s challenge centers on Article XIV, Section 9(3) of the Montana Constitution, which the organization argues requires “the proposed amendment”—not merely a summary or explanatory statement—to appear before voters on the ballot.

In June, Oestreicher argued that voters only saw “a ballot issue statement, which is kind of like a tweet because it’s limited to about 120 words,” rather than the full text of the constitutional amendment as required by the state constitution.

The Supreme Court did not address the substance of these arguments in declining original jurisdiction, according to the Montana Family Foundation.

Pro-Amendment Groups Granted Intervention

The Court also granted a petition for intervention filed by supporters of CI-128, including Planned Parenthood Advocates of Montana, the ACLU of Montana, Forward Montana, and Dr. Samuel Dickman. The groups are represented by attorneys from Graybill Law Firm and the ACLU of Montana.

Oestreicher characterized the intervention as protecting “their substantial financial investment in the amendment’s passage.” During the 2024 campaign, CI-128 received significant out-of-state funding, including $3 million from The Sixteen Thirty Fund, a progressive organization that has received at least $280 million from Swiss billionaire Hansjörg Wyss since 2016.

Case Expected to Return to Supreme Court

The Montana Family Foundation anticipates the case will eventually return to the Montana Supreme Court through the appeals process. In June, Oestreicher told Western Montana News the organization was prepared for either scenario.

“If they deny original jurisdiction, we will file in district court,” Oestreicher said at the time. “And inevitably, there will be an appeal and it’ll go to the Montana Supreme Court anyway. So we’re basically asking the court to skip that process and just rule directly.”

The organization continues to seek financial support for what it expects to be a “long and expensive” legal fight. Montana Family Foundation President Jeff Laszloffy said in a statement to supporters, “Every dollar makes a difference in the fight for life and truth.”

The State of Montana has not yet indicated its position on the challenge or the intervention by pro-amendment groups.