The referendum on Montana's 'born alive' bill, explained
A controversial referendum on the November ballot with roots in the pro-life movement could have implications that extend beyond abortion rights.
LR-131, a referendum for the Born Alive Infant Protection Act, would require doctors provide resuscitative care to infants born at any stage of development, or face penalties.
Proponents of the act say it’s morally necessary to protect innocent life.
Opponents say it gives the state too much power to decide what’s medically reasonable, which could end up harming families suffering pregnancy complications.
The Born Alive Infant Protection Act would require medical providers give life-saving care to infants born at any stage of development: born as a result of “natural or induced labor, cesarean section, induced abortion, or another method,” the legislation reads.
If the referendum LR-131 passes, medical professionals who “fail to take medically appropriate and reasonable actions” could face up to $50,000 in fines and 20 years in prison.
Montana law currently protects against infanticide. Individuals can face penalties if, the law states, “the person purposely, knowingly, or negligently causes the death of a premature infant born alive, if the infant is viable.”
In 2002 a federal law granted infants born alive the same rights as persons, but did not mandate care or include penalties. 18 states have passed laws similar to what’s on the ballot in Montana requiring physicians provide care or face criminal penalties.
Republican state Rep. Matt Regier from Kalispell introduced Montana’s born alive bill, which passed along party lines during the 2021 legislative session. Legislators then voted to put it on the November ballot as a statewide referendum.
Regier says the intent is to protect innocent life.
“It’s a simple bill of are we going to protect infants that are born alive for any reason, not just a botched abortion, but any infant that’s born alive," he said. "Do they deserve that same medical services that you and I are afforded, what’s medically appropriate and reasonable?"
What Regier calls “botched abortions” are rare: According to analysis by the Kaiser Family Foundation, one percent of abortions in the US occur after 21 weeks around the time of viability.
CDC data of infant deaths over a 12-year period show that of 143 live births following an induced abortion, most cases involved fetal anomalies or maternal complications. And nearly all — 96% — survived less than a day.
Dr. Tim Mitchell is an OB-GYN in Missoula who guides women through high risk pregnancies. He says the premise of LR-131 is not based in reality of how health care is provided. He says who the bill will really impact is families suffering pregnancy complications.
“The clinical situations where we are dealing with an infant born alive is in the setting of a rapid, pre-viable preterm birth or in the setting of these lethal fetal anomalies where we know interventions are not going to have a change in the outcome,” he said.
Last month Mitchell spoke at an event at the Capitol organized by the opposition group Compassion for Montana Families. He said if the referendum passes, physicians will be forced to make decisions out of fear of prison time and fines rather than following the families wishes for how they want to spend final moments with their infant.
“LR-131 will force physicians to attempt to place a breathing tube in a baby whose lungs have not yet developed or is so small that the tube cannot fit,” he said.
Speaking at the same event, Lea Bossler shared the story of her daughter, Maesyn, who was born at 25 weeks with fetal inflammatory response syndrome.
“Marcus and I were given the choice to take Maesyn outside for her final moments. Being ex-wildland firefighters and Montanans, we had no hesitation in taking that opportunity,” she said.
Bossler says if LR-131 had been law at the time, the doctors and nurses providing her daughter's end-of-life care would be criminals.
“Her death under LR-131 would have been extremely traumatic for everyone rather than beautiful and peaceful. Legally forced repeated chest compressions and epi shots would have done nothing but overdosed, bruised and broken her already dying body,” she said.
Regier says the opposition is disingenuous in saying the referendum would require doctors to take a terminally ill infant from its family and try to resuscitate it. He points to language on the ballot that reads “a healthcare provider shall take medically appropriate and reasonable actions to preserve the life and health of a born alive infant.”
“To me that just defies common sense, I mean, of what is medically appropriate and reasonable, and if you’re going to say trying to revive a terminally ill baby— that’s not medically reasonable," he said. "That seems pretty straightforward."
Mitchell, the OB-GYN, says the way the bill is written leaves too much gray area.
“Who is going to be the ones deciding what reasonable care is?" he said. "Is it going to be the state attorney general who is going to potentially look into cases, because anybody can file a complaint against a physician or providers who are involved in care of some of these very tragic circumstances?"
Voters will decide if the state should get involved in decisions made in the delivery room on Nov. 8.
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