Let’s just see what the people have to say about reproductive rights

Republicans in the Montana Senate elected into leadership President Pro Tempore Ken Bogner, left, President Jason Ellsworth, middle, and Majority Leader Steve Fitzpatrick. (Provided by the Senate Majority)

“Yesterday the Montana Supreme Court was effing around in a footnote. Today they’re finding out what the Legislature thinks of that.”
— Montana Senate President Jason Ellsworth, a Republican from Hamilton.

I have sat in a court where Ingrid Gustafson was presiding as a district court judge, before she moved to the Montana Supreme Court.

She would be among my top candidates — ever — for least likely to, as Ellsworth put it, “eff” around.

Ellsworth’s outrageous quotation, aimed at the decision written by Gustafson, is eclipsed only by the bare-knuckled attack on the judiciary by the Republicans in the Legislature who have mistaken a supermajority for complete authority.

The genesis of vitriol stems from another F-word, footnote. In particular, the Montana Supreme Court found that Montana Attorney General Austin Knudsen once again had failed in his duty, and had improperly rewritten a constitutional ballot initiative about enshrining abortion in the state constitution. A footnote ordered the ballot to be processed by the Secretary of State instead of going through a legislative committee, which was a case of the Supreme Court following the contours of state law.

This has led to a constitutional crisis in which the state’s highest court has ordered the Secretary of State to send out the language the unanimous Supreme Court opinion approved. But 48 hours later, the Secretary of State still hadn’t given the green-light for signature collection, the next step in the process. Meanwhile, Ellsworth has used his power of subpoena to attempt to confiscate the Supreme Court ruling so that he can send it through a legally unnecessary process by legislative committee review, which would likely doom its chances of making the ballot in 2024.

You may recall that Republicans have been delaying the process of ballot collection for months, ostensibly to run out the clock, shortchanging the rigorous signature collection that needs to take place statewide. This tells you that the GOP fears reproductive freedom.

Funny. I thought this was the party of freedom.

Even if the signature collection starts immediately, organizers say it will still be a heavy lift, and furthermore, I wouldn’t be surprised if there are more games to be played when it comes to the signature verification process, another opportunity for Republican meddling.

Yet this constitutional battle between the legislative, judicial and executive branches is instructive on so many levels.

First, it demonstrates just what a threat the prospect of reproductive autonomy is to Republicans. It’s such a losing issue that political leadership has played games to stall the measure, wrote an incendiary collection of garbage as proposed ballot measure language that was certain to get challenged, and is now dragging its feet for signatures

Remember, at this point, the only thing that is happening is just an attempt to get the proposal before voters; there’s still no guarantee it will collect enough, or when presented on the ballot, pass.

But we know from other elections in conservative-leaning states like Montana that reproductive freedom is a winning issue that transcends parties, and Montanans are generally supportive of such measures. And Montanans are not known for taking kindly to other people telling them what to do.

But if Republicans lose on abortions, the party loses one of its galvanizing and best fund-raising issues.

Beyond that, Ellsworth’s second recent initiative, a revived special select Senate committee that can examine the judiciary is, itself, a re-run Montana has seen before.

You probably remember the Republicans last war on the judiciary that concluded with largely a report that dressed up previous political talking points, but did little because it ignored the very real concept of separation of power.  The Democrats, in the minority now and then, issued a dissenting report, refusing to sign onto the Republicans’ version. This time around, Democrats said they wouldn’t participate in such political theater, pointing out that the first they heard about the committee was from the Republicans’ press release.

So much for shared power.

The GOP approach to drafting legislation can best be summed up by the popular phrase, “Play stupid games, win stupid prizes.”

Republicans have been repeatedly warned that much of the legislation that they’ve proposed, including in the realm of abortion, was likely contrary to case law and the Montana Constitution.

This has deterred Republicans like a drunk eschews booze.

Now, when the Republicans meet the predictable and predicted outcome of so much poorly written and even worse thought-out legislation, the courts, often with unanimity, declare the laws illegal. The GOP has written terrible laws and they’ve met the inevitable conclusion: The laws get struck down.

Republicans are good at chiding the court for its decisions, but terrible at taking any responsibility for the legally suspect ideas they promote.

The problem, of course, is that they can rail against the courts all they want, even implying without justification that those justices are messing around with lawmakers, but what Montana Republicans have failed to overcome is something beyond the executive, legislative and judicial branches.

The Montana Constitution has vested the real power in the people. No matter how hard the super-majority Republicans try to deflect blame onto a court which is non-political and doesn’t speak except through its own decisions, it is that our constitution mandates separate powers, and the court’s prerogative and power is independent review, not subservient to irritations and annoyances of legislative leaders.

And no other issue brings that more to light than the current controversy about abortion. Republicans, using delay tactics and sabotage, have tried to halt an initiative begun by citizens to preserve rights citizens hold dear, like access to reproductive health.

That initiative has had very little to do with lawmakers, despite their best efforts at making the process of abortion more cumbersome for those who seek the legal procedure in Montana.

Instead of using their platform to make compelling arguments about why voters should reject enshrining abortion, they have instead turned to a war the GOP thinks it can win: Attack those people in black robes.

Yet even a legislative inquiry into the judiciary in Montana cannot overcome the clear mandate of the Constitution: The people reserve the power of amending the constitution to themselves, not lawmakers, not the justices.

And so Sen. Ellsworth, who is campaigning to get his next job at the … (checks notes) … Montana Supreme Court as its clerk, may be about to find out what Montanans think of reproductive autonomy and freedom.

Maybe to put it in terms even Ellsworth will understand: Yesterday, the Legislature has effed around with a constitutional amendment. In November, the legislature may find out exactly what the voters think.

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