With four weeks until Election Day, reproductive rights advocates in Montana and across the country are throwing their weight behind a down-ballot candidate they say is key to maintaining abortion access throughout much of the Rocky Mountain west: Supreme Court Justice Ingrid Gustafson.
Gustafson, a five-year incumbent of the court originally appointed by former Democratic Gov. Steve Bullock, is running to retain her seat against attorney and Republican Public Service Commission President James Brown.
Gustafson was a district court judge for nearly 15 years in Yellowstone County, where she spearheaded child welfare case reforms and drug treatment courts. Brown has operated his solo law firm in Helena for a decade and represented clients in a broad spectrum of civil and criminal cases. He previously served as legal counsel to the state Republican Party and represented American Tradition Partnership, a conservative dark money organization at the center of a 2011 lawsuit that eventually overturned Montana’s campaign finance laws against corporate spending in elections.
The two candidates’ campaigns have raked in significant sums of money in direct contributions. As of the most recent August campaign finance reports, Brown had more than $230,500 cash on hand. Gustafson reported just over $305,500.
Despite the race’s nonpartisan label, political interests have colored the contest for months: the Montana Republican Party and its most prominent officeholders, Gov. Greg Gianforte, Attorney General Austin Knudsen and U.S. Sen. Steve Daines, endorsed Brown this spring. Now, in a landscape changed by the U.S. Supreme Court’s overturning of Roe v. Wade in June, elected Montana Democrats and abortion rights advocates across the country have begun rallying support for Gustafson, holding one fundraiser for the candidate that supporters billed as an effort to “save abortion in Montana.” Gustafson did not attend.
The protect-abortion-rights messaging by third-party groups has also gained traction among out-of-state advocates who see Montana as a haven in an otherwise restrictive region. Abortion has been protected under the state Constitution’s right to privacy since the Montana Supreme Court’s unanimous 1999 decision in Armstrong v. State.
A September fundraising appeal sent by the progressive political action group L.A. Women’s Collective explicitly described Gustafson as part of the Montana Supreme Court’s 4-3 “pro-choice majority” based on her campaign pledge to support Montana’s constitutional rights. The same fundraising message described Brown as “publicly partisan” and “anti-choice” based on his support from anti-abortion Republicans.
Another progressive PAC, DemocracyFirst, has labeled Gustafson’s race one of three “priority” state Supreme Court races across the country, alongside two in Michigan and Ohio. The top of the PAC’s donation page for Gustafson states, in bold font, “Abortion access in the High Plains will depend on one election: Incumbent Justice Ingrid Gustafson of the Montana State Supreme Court.”
Neither group provided a specific justification for their depiction of Montana’s Supreme Court as narrowly in favor of upholding abortion access. The most recent ruling on abortion rights involving all current Supreme Court justices was the 2019 opinion in Weems v. State, in which the court affirmed a district court’s preliminary injunction that allowed qualified advanced-practice registered nurses to provide abortions. That ruling featured a 4-3 split of the court’s members, with justices Beth Baker, Dirk Sandefur, Gustafson and Chief Justice Mike McGrath in the majority, and Justices Laurie McKinnon, James Shea and Rice dissenting.
While interest groups have historically fundraised and campaigned on behalf of state Supreme Court candidates, University of Montana political science professor Christopher Muste said the recent abortion-rights messaging for Gustafson is “pretty stark.” He said the explicit focus on a single issue may be designed to appeal to voters and funders across the partisan spectrum in the post-Roe era.
“There are probably a lot of Republican women in the state of Montana who are loyal to the party and vote for Republican candidates on a regular basis, but also want to protect abortion rights,” Muste said.
The Montana Code of Judicial Conduct prohibits either candidate from publicly discussing their stance on abortion and any other legal matter likely to come before the court. The candidates have appeared to respect that ethical boundary on the campaign trail, but have also referenced specific issues and constitutional rights in their campaign messaging. Brown’s website describes him as a candidate who “will always protect Montana jobs, support the 2nd Amendment, stand with law enforcement and be tough on crime.” Gustafson has said she is “committed to upholding the unique rights of our Constitution, among them the right to privacy, public land and water access, and a clean and healthy environment.”
Both candidates have declined to comment directly on the Armstrong precedent when asked by Montana Free Press. In an emailed response to MTFP about the recent characterizations by abortion rights advocates, Brown questioned the assertion that his election would “tip the balance” on the court.
“If elected, my role as a justice will be to remain impartial, listen carefully and evaluate all the facts of the case and uphold the law and the Montana Constitution,” Brown said.
In an emailed statement, Gustafson said the inquiry was “the first I have heard of the organizations and efforts [MTFP] refers to and, as such, I can’t knowledgeably comment on their characterizations of issues important to them.”
Gustafson’s statement went on to say that she is “a Justice, not a politician.”
“I have worked hard to be fair and independent and am humbled by the overwhelming support I have received from Montana’s legal and judicial communities and from Montanans across the state,” she said. “I’ve spent my judicial career applying our laws and Constitution to the facts of each case before me and if re-elected will continue to do so.”
Many reproductive rights supporters, including some abortion providers, see backing the incumbent in the race as their safest bet in light of Montana’s growing anti-abortion movement. In recent court filings stemming from a 2021 lawsuit filed by Planned Parenthood of Montana, Gianforte and Knudsen have urged the state Supreme Court to revisit or reverse Armstrong and give the Republican-dominated Legislature more leeway to regulate abortion.
In an August decision by a five-judge panel that did not include Gustafson, the Supreme Court declined to reconsider that legal precedent while the case between abortion providers and the state continues in district court. It’s unclear if or when the lawsuit will return to the high court for consideration.
As Montana ends up an island of abortion access in the northern Rockies, Whitefish abortion provider Helen Weems is warily watching the political forces that, amid gains for their cause, would celebrate the closure of her clinic.
In his campaign for the Montana Supreme Court seat currently held by Justice Ingrid Gustafson, who is seeking re-election, attorney James Brown is receiving the race’s most overtly partisan support from a long list of elected Republicans. This month, Brown referenced Gov. Greg Gianforte’s support of his candidacy when he told attendees at a candidate…
That legal climate has made abortion rights advocates unwilling to risk electing Brown, Gianforte and Knudsen’s candidate of choice. The September fundraising email from the L.A. Women’s Collective framed Republican efforts to weaken abortion protections in Montana as potentially “disastrous not just for Montanans but for the hundreds of thousands of Americans in neighboring states who currently rely on Montana clinics for reproductive health care.” The email included a map that showed Montana as a blue island surrounded by red Idaho, Wyoming, North Dakota and South Dakota, all of which have recently passed abortion restrictions or bans.
“Montana is the next big battle,” said Hannah Linkenhoker, a co-founder of the California group and part-time resident of Virginia City, during a virtual September fundraising call. “Whether you’re someone who flies in to go skiing or you live in Montana, we all need to do our part in the next 42 days to connect the dots between this larger global fight we’re all on the front lines of and this specific race.”
The fundraiser was moderated by House Minority Leader Kim Abbott, D-Helena, who is also a current program director for DemocracyFirst’s Justice Project campaign, which helps raise money for judicial candidates. It featured comments from former Democratic congressional candidate Cora Neumann and Democratic state Reps. Laurie Bishop, D-Livingston, and Alice Buckley, D-Bozeman, all of whom stressed the importance of maintaining a lineup on the state Supreme Court that will uphold Armstrong.
A follow-up email from L.A. Women’s Collective sent a week after the fundraiser said the group’s efforts to raise money for Gustafson, both in direct donations to her campaign and to a PAC called Montana Values Action Fund, had amounted to $20,000. The PAC’s most recent campaign finance report disclosed more than $90,000 in expenditures, though none specifically referenced spending in support of Gustafson’s candidacy.
Jessi Bennion, a political science professor at Montana State University and Carroll College who studies campaigns and elections, said the fundraiser’s overt reference to abortion rights during campaign season is an example of the increasing political pressure on the judiciary — a trend she said is also underscored by the Montana Republican effort to align Brown with their party’s brand.
“There is this realization that partisan politics are here to stay in the judiciary. I think we’re going to see a ton more like this,” Bennion said of the fundraising efforts. “If there are these races that can shift power dynamics within the court, you’re going to see outside groups pumping in lots of money, trying to sway or persuade and get voters engaged with the issue.”
According to recent finance reports, Brown has benefitted from the targeted spending and messaging campaigns of the Montana Republican Party and other conservative political action committees. In the most recent September campaign spending report, the state GOP reported spending more than $31,000 on a mail campaign supporting Brown and putting nearly $9,000 toward anti-Gustafson Facebook ads and sending voters a letter written by Daines in support of Brown. The party spent an additional $2,000 sending people door-to-door to campaign on behalf of Brown.
Earlier in the campaign season, in the lead-up to and direct aftermath of the June primary, the political action committee Leadership in Action, chaired by Attorney General Knudsen, put $5,000 toward targeted Facebook ads touting Knudsen’s support of Brown. Around the same time, the national Republican State Leadership Committee put nearly $155,000 toward television ad buys in Great Falls and Missoula in support of Brown’s candidacy. The wing of the RSLC committee that paid that bill is called the Judicial Fairness Initiative.
While progressive advocates are launching a new fundraising strategy to identify Gustafson as a defender of abortion rights, Bennion noted that the Republican messaging on behalf of Brown has not been issue-specific. After the party’s definitive wins up and down the ballot in 2020, Bennion said, conservatives might be banking on the power of the party’s brand alone.
“Maybe they’re just saying, ‘We don’t need to do that. We just need to say that he’s a Republican. We don’t need to get into those controversial topics,’” she said.
Muste, from the University of Montana, said the appeals from partisan and interest groups could prove influential in what’s anticipated to be a low turnout year. Voters who go to the polls for a non-presidential election, without a U.S. Senate race on the ballot, are likely to be more engaged in politics and more avid consumers of campaign messaging.
“They’re probably going to be a little more aware of where the candidates stand and certainly where the parties and interest groups stand on the issues. And then [there will be] a lot of the voters who aren’t going to be showing up to the polls this time,” Muste said. “That’s one way, as a political scientist, that I think about it. Who’s going to be making the decisions this year? Which voters are going to be showing up?”
Linkenhoker, the political strategist and fundraiser, said voters need to know about what she calls Gustafson’s pro-Constitution prerogative, especially in light of the full-throated Republican campaign for Brown.
“She’s going to uphold the Constitution as the sacred document that it is,” Linkenhoker said in an October phone interview. “And the precedent for abortion is there.”
Linkenhoker said it’s unfortunate that political interests have begun to vie for power over the judicial branch of government. But she pinned much of the responsibility for that escalation on conservatives, including those stumping for Brown.
“What are pro-choice Montanans supposed to do? Just ignore it?” Linkenhoker said. “I think that the people of the state deserve to know what the stakes are. And these are the stakes.”
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