- [Stan] Coming up on "IMPACT."

Voters get a chance to write abortion rights into the Montana Constitution.

Will they do it?

- Constitutional Initiative 128 would really limit the necessity of litigation.

- [Stan] And has the Democratic nominee for Congress in Montana's eastern district already given up?

- All I said was he's gonna do pretty well, which he will.

- I mean, you've gotta admit that's odd.

- [Reilly] Do you guys have a few seconds?

- [Stan] Now a write-in Democrat has joined the race.

- It's exciting, it's energizing, and it's made the race a little more exciting too.

- [Stan] Those stories and more ahead on "IMPACT."

- [Announcer] Production of "IMPACT" is made possible with support from: the Greater Montana Foundation, encouraging communication on issues, trends, and values of importance to Montanans, and viewers like you who are friends of Montana PBS.

Thank you.

- Welcome to "IMPACT" from Montana PBS Reports.

I'm Stan Parker.

As the advertising in this election cycle continues to be dominated by the Senate race and national politics, we continue our campaign coverage in this episode with a focus on important races and issues down the ballot.

The right to an abortion is already recognized in Montana and has been since 1999, but on this year's fall ballot voters will be asked whether to spell out those rights explicitly in the state constitution.

The outcome could reshape Montana's longstanding debate on abortion rights.

Montana PBS's Hannah Kearse reports on Constitutional Initiative 128.

- [Hannah] At a reproductive freedom rally in Bozeman, rallygoers carry homemade signs and cheer on speakers advocating for autonomy.

The crowd features people of all ages, showing a movement that crosses generational lines.

- Most importantly, this is about autonomy.

My mom's generation of women was the first to have so many rights it hadn't been afforded before.

When she had me, I'm sure that my mom expected my generation would have those same rights.

- [Hannah] But there are also many Montanans with pro-life views and may oppose CI-128.

For some, their political stance is rooted in their religious beliefs.

Like you see here with people gathering at the state capitol for a Christian concert led by pro-life activist Sean Feaucht.

People sing along and take communion as part of a public worship.

Feaucht's message often blurs the lines between religious freedoms and political activism.

- There's a lot of issues in this state.

It's not as free as many of you think it is, okay?

So we got all kind of issues.

We got all kind of problems.

But yet we stand here today lifting up communion in front of this building, declaring the blood of Jesus is enough!

(audience cheers) - [Hannah] The state legislature's efforts to impose new restrictions on abortion have faced major setbacks in the courts, who have struck down most of these bills, keeping Montana's abortion rights intact for now.

- Last session, we passed common sense pro-life bills, some of which are now tied up in the courts.

But our commitment to doing what's right for unborn babies will never waver.

(audience applauds) - [Hannah] But for advocacy groups like Forward Montana, this commitment by the legislature and the increasing dependence on the courts to continue Montana's abortion rights signals the need for stronger protections.

- As we have seen from the past couple legislative sessions to language from elected leaders in our state who are calling on the courts to overturn "Armstrong," there is no better time than now to protect access to abortion in our state.

- [Hannah] Since 1999, the Montana Supreme Court's "Armstrong" ruling has extended protections for abortion under the state's privacy law.

But Montana lawmakers saw an opportunity for the courts to reinterpret this law when the U.S. Supreme Court ended nearly 50 years of federal protections on abortion rights.

- The brakes are kind of off on the legislative side in Montana right now as well.

One thing that we're seeing is a whole lot of abortion litigation in Montana.

Which there has been in the past, but not nearly to the degree that there is right now.

Constitutional Initiative 128 would prevent, really limit the necessity of litigation going forward.

It is a, well, the right of privacy is really strong, and it reads really broadly.

CI-128 is much more focused on abortion and says exactly what does and does not pass constitutional muster.

- [Hannah] CI-128 would allow abortions before fetal viability and abortions at any point in pregnancy if a treating healthcare professional determines it is medically indicated to protect the pregnant patient's life or health.

And it prevents the government from penalizing anyone who assists someone in exercising their right.

Most of CI-128's legal criticism centers on claims of vagueness.

Senator Keith Regier recently passed a bill targeting the foundation of Montana's abortion rights, aiming to explicitly remove abortion from the state's privacy law.

And Regier is among Montana lawmakers saying CI-128 is too vague.

- There were those that testified that the language is vague, and it really is.

Viability, medically indicated, good faith judgment.

Those are very subjective terms and really need to be defined better in order to go on.

- [Hannah] The predominant pro-life organization, Susan B. Anthony Pro-Life America, is also focusing its criticism on the ballot measure's language.

- It uses the word viability, but what it does in practice is allow second and third trimester abortions, and it enshrines it in the Constitution.

This isn't just a law we're talking about.

This is your constitution.

- [Hannah] Viability is a notoriously vague term.

It's generally considered to be around 24 weeks of pregnancy, but medical experts say that this can vary depending on medical technology and patient conditions.

This is why courts have historically been reluctant to set a specific standard for viability, as it naturally opens the door to legal challenges.

- One criticism of "Roe v. Wade" is that the court was acting like doctors when they looked at viability and they looked at what you can do in the first trimester and the second trimester, and that it's a medical, not a constitutional kind of concept.

- [Hannah] CI-128 would make it harder for the state to have a say in defining medical concepts of abortion care, which its critics argue are too vague.

But legal experts suggest many of these claims of vagueness may be overstated.

Like the concern that the initiative would allow unqualified professionals to provide abortion services.

- What it does through a gaping health exception that is undefined is allow for, essentially, abortions at any point in pregnancy.

Because it allows the abortionist, does not even say a doctor, it's an abortionist or anybody who does the abortion, to decide when an abortion is necessary based on health.

- [Hannah] CI-128 says a treating healthcare professional can determine if an abortion is medically necessary, and this means only someone who has the proper credentials which permits them to make medical decisions within their expertise.

This includes healthcare professionals other than doctors, like certified midwives and advanced practice registered nurses.

Last year, the Montana Supreme Court reaffirmed that there is no evidence of this posing a "medically acknowledged, "bona fide health risk to Montana women."

Another criticism of CI-128 that echoes concerns raised in recent legislation is that it would permit taxpayer money to pay for abortion care.

- This amendment is gonna make you pay for those abortions, and not just life-of-the-mother kinds of abortions, but elective abortions all throughout pregnancy.

- [Hannah] So how is abortion care and taxpayer money linked?

In Montana, the answer is Medicaid, which is funded by both federal taxes and state taxes.

But the rules on how these funds can be used differ.

Federal regulations limit the use of federal tax dollars to cases of incest, rape, or a threat to the life of the mother.

But Montana's Medicaid regulations say that state tax dollars must also cover medically necessary abortions.

The state alleges that taxpayer money is paying for elected abortions because of this additional condition in Montana's Medicaid.

The legislature passed a law that would give the state the power to define what qualifies as medically necessary for Medicaid abortions.

However, a district court is currently blocking this law.

But if passed, CI-128 would ensure that treating healthcare professionals would make this decision.

And supporters of the initiative are saying that these claims of vagueness are a political tactic designed to mislead the public.

- Extremists in our state have shown time and time again that they are willing to do anything and everything to restrict access to abortion in our state or eliminate it entirely.

- [Hannah] In many ways, CI-128 looks a lot like Montana's current abortion rights.

The important difference is CI-128's functional power.

- I think, though, in terms of sort of precedential power and kind of sticking power, having the voters weigh in directly on something gives it stronger effect than having a judge weigh in on it.

And part of that is because it is the voters telling the judges not to second guess something.

So courts overrule their precedent, there are different ideas about when they should do that, how often they should do that, but they can't override what is directly in the constitution.

- [Hannah] CI-128 would take much of the abortion debate out of Montana's courts, and that appears to be an objective for both supporters and opposers of this initiative.

- We've seen the state legislative session after session do what they can to restrict access.

And so the time is now to make sure that it is enshrined in our state's constitution.

- [Hannah] Montana's current Republican-controlled legislature, attorney general's office, and governor's office have shown a strong interest in taking over the regulatory role on abortion.

It's passed a record number of abortion laws that contradict the protections outlined in CI-128.

- We're really supportive of Governor Gianforte and the bills that he signed two legislative sessions ago that were helping with women's health and safety protections amongst other things.

Unfortunately, the Supreme Court has struck some of those common sense things down.

And so I think it's us being a good partner to the governor.

- [Hannah] The state's lawmakers and judges have primarily controlled decisions on abortion rights, but this November Montanans will directly weigh in with their vote on CI-128.

- I think there's always an avenue for constitutional interpretation to change.

CI-128, if it were passed, would be a lot harder to change the interpretation of because it's just much more granular.

- [Hannah] For "IMPACT," I'm Hannah Kearse.

- Montana is one of 10 states voting on abortion rights in this year's election.

After the U.S. Supreme Court overturned "Roe v. Wade," a national movement has grown to define abortion rights at the state level.

In the race for Montana's eastern congressional seat, a recent public appearance raised eyebrows after the Democratic nominee, John Driscoll, said he already congratulated Republican Troy Downing, predicting his opponent would do very well in this solidly red district.

Now a new write-in Democrat, Reilly Neill, says not so fast.

Breanna McCabe sat down with all three candidates for some clarity on where the race stands now.

- Do you wanna have a debate?

Let's have a debate.

- [Breanna] We've come to expect feisty exchanges ahead of elections.

So it was a bit unexpected when Republican Troy Downing received kudos from his Democratic challenger, John Driscoll, at a Billings Rotary meeting.

- He started speaking, basically saying that he thought I was gonna do a great job.

- There's no reason not to be nice and be honest about it.

Well, I'm glad I finally have a chance to meet Commissioner Downing and to congratulate him.

I think he's gonna do very well with this election.

Eastern Montana for Republicans is like Butte has always been for Democrats.

So you kind of know what to expect.

- It's just not normal that you'll have somebody, you know, congratulate you the first time they meet you.

I mean, you've gotta admit, that's odd.

- I thanked him, and I also told him I thought he'd do pretty well.

Like that's a pretty safe statement.

But I didn't say he was gonna win, right?

Big difference.

So I came back to Helena and everybody in Helena's saying, you know, "Don't concede."

I didn't concede.

All I said was he's gonna do pretty well.

Which he will.

- This seemed really pressing.

- [Breanna] It sounded like a concession to Democrat Reilly Neill, who already questioned Driscoll's campaign enough to file as a write-in candidate in a race already written off as a win for Republicans.

- Even though we may not be a majority, the Democrats may not have held a majority in this district in a long time, we still exist and deserve representation.

Hey, Montana.

- [Breanna] The Livingston local represented Montanans in the legislature from 2013 to 2015.

She ran a newspaper and in 2020 for governor against Greg Gianforte.

- Woo, Rangers!

- [Breanna] The Park High School parent couldn't stand on the political sidelines when she saw how Driscoll was representing her party.

- I wanted a choice on the ballot, and I thought, "I can do that."

I'm running a write-in campaign for U.S. Congress for Montana's Second District.

- [Breanna] Since launching her campaign in mid-August, Neill is covering as much ground as she can.

- I'm out here on the Highline today near Malta.

- [Breanna] In the largest congressional district by land area in the lower 48.

- I haven't heard anyone upset at me for running.

I have heard lots of people upset that Driscoll isn't taking this seriously.

- [Breanna] Animosity aside, the two shook hands when they met face to face at the Hometown Helena event Driscoll attends weekly.

Neill says she came to listen, not to campaign, but Driscoll continued his courtesy toward his opponents when he got up to introduce Neill.

- So I'd like, if you don't mind, Reilly, to introduce you.

- She was surprised by that.

I saw her smile.

So it was okay, you know?

And if I had been in her shoes, I would've appreciated somebody introducing me.

- Hi, my name is Reilly Neill, and I'm running as a write-in candidate.

I think he may have just thought he was, you know, being kind.

But it kind of took away my agency.

I hadn't asked him to introduce me, and it did feel a little awkward to be put on the spot.

But, hey, I'm running for office, so, you know, put me on the spot.

I'm here to do it.

- [Breanna] Helena is a hotspot for this race, home to both Neill's opponents on the ballot.

Geographically, Montana's political center sits on the far left of the district that votes reliably to the right.

- What's the status of the governor's?

- [Breanna] That's why State Auditor and Republican, Troy Downing, says two Democrats in the race won't affect the outcome.

- That seems like it's more of a fight for votes between the two of them, which I don't think, you know, mathematically matters to me.

- [Breanna] Republicans and Downing received two and a half times the votes of Driscoll and Democrats in the primary.

And while Downing spent $2 million on that campaign, Driscoll only spent $2,000, in a protest of campaign spending.

- I think the only way to break through this control that money has on American politics is to actually get elected without it.

And so I purposefully am doing that, and I've turned away a lot of contributions.

It's gone down.

The last purchase was gas in Big Timber for $50.57.

- [Breanna] A candidate can spend up to $5,000 before having to file with the Federal Election Commission.

Driscoll says he won't go over that.

- [John] Thank goodness for truck stop showers.

- [Breanna] He tracks his spending.

- That was a pretty good deal.

- [Breanna] And saves money by sleeping in his Subaru.

- I've gotten some really good nights' sleep.

- [Breanna] And in some cases, opts not to travel at all.

- If I have something come up at the last minute, I'm not going there.

I'm just not gonna spend more than 5,000.

- This is 2024.

If we wanna enact change in Congress, we have to get to Congress.

And in order to get to Congress.

You guys have a few seconds?

You have to work a modern campaign.

Okay, I'm gonna come back with a voter registration and a voting guide for you too.

I really respect this protest, but I just don't think that's how we get to Congress.

Write in Reilly, and let's get 'er done.

- [Breanna] A write-in campaign is also a steep climb to Congress.

- No flubs.

- [Breanna] But Neill says it's about more than that.

- The role of a person at the top of the ticket is to elevate everyone that's below them on the ticket.

And in this particular race with Driscoll not running a very active campaign, they don't have that.

- I actually value the criticism.

You know, it's pretty stiff criticism.

- [Breanna] But for the most part, Driscoll hasn't changed his ways to satisfy his critics.

Except for one thing.

He agreed to wear a name tag when he's out in public, even during his daily workout rounds at Helena's Centennial Park.

- Some Democrat ladies who I have a lot of respect for that were among those upset about me not raising money for advertising said I should at least wear a name tag so that people know who I am.

And once in a while, I have seen people try to read it as I walk by.

- [Breanna] Driscoll admits winning this way won't be a walk in the park.

- But I have had a couple selfies taken.

One guy in Lewistown, he wanted to take a selfie.

Second one I've ever had.

I don't know why everybody gets their selfie taken.

But, anyhow, I said, "Why are you taking my picture?"

And he goes, "You're the first politician I've ever seen "actually running for office."

I thought, "Well, that's interesting."

Then I find out he's gonna vote Republican up and down the ticket, and I said, "Well, think about voting for me."

- [Breanna] Montanans have known Driscoll as a Democrat since the 1970s when he served in the legislature.

But he tried a radical campaign tactic in a Senate bid four years ago.

He ran as a Republican.

It didn't stick with voters, but the label is still clinging to his Wikipedia page.

- I got ahold of 'em and I said, "Hey, I don't like having Republican after my name."

I said, "Look, here's all this stuff that I've done, "this Democrat stuff."

And they said, "No, that's too complicated."

They won't change.

So hopefully at least one thing will happen after this election, win or lose, is Wikipedia will change me back to a Democrat.

- [Troy] We wanna get this to be 130 degrees.

- [Breanna] The past has a way of bubbling up on the internet.

Like this instructional film on brewing beer in 1990s Brooklyn starring a New York University research scientist named Troy Downing.

- This was, oh, that's how old I was.

- [Breanna] The 20-something home brewer was also developing a technology startup.

- Chinese edition '97.

- [Breanna] Speaking in Java and HTML and writing books about it.

- "When not sitting in front of a computer terminal, "you'll find Troy playing with his daughter, "racing mountain bikes, "or perfecting his latest batch of home brew."

(Troy chuckles) And then we'll bottle it.

I never thought I would be running for any office.

A month after that, we'll have beer.

And I'm honored that I've been given this opportunity.

And, you know, I won't squander it.

I got one from Leader Scalise.

- [Breanna] Downing's decision to run for Congress means he'll pack up his Auditor's office either way.

- Oh, I made this one in 2012.

- [Breanna] And if he gets to bring his things and strings to D.C. (soft guitar music) He plans to amplify Republican views on border security and taxes, aligning on national issues with former President Donald Trump.

Do you differ on any policy views?

- I have, and I can't think of any off the top of my head.

If you had some you think I might defer, bring 'em up, but I can't think of any off the top of my head.

You know, like most people, I wish that his rhetoric was more focused on policy.

But Trump is Trump because Trump is Trump.

- If Downing is aligned with Trump and Driscoll is not doing anything to elevate himself in the race and you never hear of me, then you likely will end up with Troy Downing as our U.S. congressman.

Here we go, Dom!

- [Breanna] In a race that looks like a long shot for both Democrats, they're still out to make a statement.

- Oh!

To these individuals who feel like they didn't have any choice on the ballot and that this was a done deal, it's exciting, it's energizing, and it's made the race a little more exciting too.

- If I don't get elected, I'm probably wrong.

I mean, this would be the best effort to try to get elected without money that you're gonna see, I think, in this country.

- [Breanna] But while candidates campaign on principles, ultimately, elections come down to probability.

- We're not gonna take anything for granted, but I think that I'm favored in the general.

- The raw numbers.

You can't quibble with those.

So he'll do very well.

That's all I can say.

- [Breanna] For "IMPACT," I'm Breanna McCabe.

- John Driscoll's total campaign spending stands at about $3,500.

Reilly Neill, the write-in candidate, has raised nearly $20,000.

And Republican Troy Downing is about to hit $300,000 raised since the primary.

Voters in Montana's First Congressional District are looking at a rematch between Republican Ryan Zinke and Democrat Monica Tranel.

Two years ago, their contest was the state's most expensive and most watched race, ending with Tranel losing by a margin of just over 3%.

This time, even though both campaigns are running ads, their race is overshadowed by the big races up and down the ballot.

- Part of the reality of getting elected is getting your name out there, right?

And people need to know who you are.

For me, it's very personal.

Building these relationships, getting to know people, it takes time, it takes effort.

I've put almost 50,000 miles on my minivan on this election cycle alone.

- [Ryan] You know, I'm on the radio across the state, open format, take a question.

I'm there at town halls, public meetings, rodeos.

My office is always open.

And, you know, I don't learn a lot from D.C.

I learn a lot when actually I'm in Montana.

- Zinke, who sat down with us remotely from D.C., says he's in touch with Montana voters and understands what they want to see him accomplish if he's reelected.

- [Ryan] I can tell you Montana doesn't agree with boys playing women's sports and boys intruding on the opportunity for young ladies to compete at every level.

Montana does not agree with supporting sex change operations and hormone therapy for minorities.

- He is taking a D.C. playbook of culture war division issues and running them as if they are relevant in Western Montana.

It's not what the people want, it's not what I'm hearing on the ground.

- That's all we have for this episode of "IMPACT."

Next time, we talk to Governor Greg Gianforte and his challenger, Democrat Ryan Busse, about why it feels so expensive to live in Montana right now and what can be done about it.

And we'll talk to candidates running for the three open seats on the Public Service Commission.

The races pit three political newcomers against three established conservatives who are looking to maintain a Republican consensus on the commission.

From all of us here at Montana PBS, thank you for joining us.

I'm Stan Parker.

(soft ethereal music) (soft ethereal music continues) (soft ethereal music continues) (soft ethereal music continues) - [Announcer] Production of "IMPACT" is made possible with support from: the Greater Montana Foundation, encouraging communication on issues, trends, and values of importance to Montanans, and viewers like you who are friends of Montana PBS.

Thank you.

(light upbeat piano music)