Montana Supreme Court election could shape the future of reproductive rights in the state | The Montana Independent
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Attorney Dale Schowengerdt argues before the Montana Supreme Court, July 10, 2024, in Helena, Montana. (Thom Bridge/Independent Record via AP)

Montanans will fill two open seats on the state Supreme Court this November. Their choices could have significant sway over the future of reproductive rights in the state.

In recent years, the state’s high court has repeatedly struck down abortion restrictions as contrary to the Montana Constitution’s right of privacy protection. 

Chief Justice Mike McGrath and Justice Dirk Sandefur both opted to retire from the seven-member court at the end of their terms on Dec. 31, 2024. A nonpartisan June primary narrowed down both races to succeed them to two candidates; each race presents a stark choice between a defender of privacy rights and a candidate backed by anti-abortion extremists.

In the chief justice race, former federal Magistrate Judge Jerry Lynch will face Broadwater County Attorney Cory Swanson.

“My candidacy is not fueled by personal ambition, nor is it inspired by out-of-state corporate lobbyists and political extremists seeking to control Montana’s future by undermining our Constitutional freedoms,” Lynch says on his campaign website. “The Montana State Constitution protects everyone’s freedoms to privacy, individual dignity, a clean and healthful environment, our agricultural way of life, a no-cost public education and many, many more rights.”

Swanson’s campaign webpage notes his work as deputy attorney general under Republican Attorney General Tim Fox, a vocal opponent of abortion rights who joined an amicus brief defending the constitutionality of North Carolina’s 20-week ban in 2019. He makes no mention of privacy and told the Montana Free Press in December: “I don’t believe it’s about the stakes of rewriting privacy laws or picking sides in the culture war. I think it’s about the stakes of the Supreme Court focusing on judicial integrity and intellectual rigor. Decide the case before you, don’t decide the case based on the result you want.” 

Swanson did not respond to a request for comment for this story. In a March social media post, however, he argued that Lynch was violating ethical norms by even talking about abortion rights: “Judicial candidates have an ethical obligation not to prejudge cases before hearing the facts. My opponent @Lynch4CJMTSUPCO has failed that obligation by announcing how he plans to rule on abortion cases.” Lynch has said in interviews that he is not prejudging any cases but is talking about general judicial philosophy. 

According to Montana’s Campaign Electronic Reporting System, Swanson has received $600 from Jeff Laszloffy, the president of the Montana Family Foundation, a right-wing group that opposes abortion rights. He received $500 from Terry Moore, a Republican state representative who previously served on the board of the Montana Family Foundation and once led the Alliance Defending Freedom, an anti-abortion organization designated as a hate group by the Southern Poverty Law Center.

In the other Supreme Court race, Montanans will choose between Montana 7th District Court Judge Katherine Bidegaray and Flathead County District Court Judge Dan Wilson.

“Currently, our legal system and the rights it protects – including privacy, education, and the conservation of Montana’s untouched landscapes – are facing significant threats. My campaign represents a defense of these values and the integrity of Montana’s judiciary,“ Bidegaray’s campaign site says.

Wilson, who makes no mention of privacy rights on his website, did not respond to an inquiry for this story. In June 2023, he told the Daily Inter Lake in Kalispell, “The abortion issue has been decided by our Supreme Court, first in the Armstrong case, recently affirmed, and Armstrong is precedent.” 

That June, however, Wilson told a group of Kalispell Republicans that it is “a very dangerous road to follow” to “borrow doctrines or jurisprudence from particular parts of the Constitution and [graft] them onto others where perhaps the issue is silent,” according to a report in the Flathead Beacon.

Wilson received $790 from Don Kaltschmidt, the chair of the Montana Republican Party. In a 2022 statement, Kaltschmidt praised the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization that overturned Roe v. Wade, writing: “Today’s ruling begins the process of righting a historic injustice for millions of babies who never had the chance to see the light of day and returns decision making powers back to the American people through their elected officials. … Today is a great day for those who stand for life and while there is still much work to do to protect the lives of the unborn, this ruling is an enormous first step.”

The ACLU of Montana surveyed all four candidates about their positions on reproductive rights. Lynch and Bidegaray both told the civil liberties group that they agree with the Montana Supreme Court’s 1999 ruling in Armstrong v. State that the Montana Constitution guarantees the right to an abortion and that they believe it protects the right to contraception.

Wilson did not respond to the group. Swanson answered: “It is not appropriate for a judicial candidate to provide a legal conclusion that may prejudge a future case that may come before the Court. I will judge each case on the facts and my best understanding of the applicable law to that case.”

“Cory Swanson and Dan Wilson are hiding their beliefs about abortion and access to reproductive health care,” Nancy Keenan, a Montana resident and a former president of NARAL Pro-Choice America (now known as Reproductive Freedom for All), told the Montana Independent in an email. “Public records show they are backed by anti-abortion extremists who want to curtail our freedoms while empowering politicians to make personal health care decisions for Montana women.”

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