5 things to know about Montana's 'born alive' ballot initiative

Matt Volz

Kaiser Health News

Montana voters will decide Nov. 8 whether to approve a ballot initiative declaring that an embryo or fetus is a legal person with a right to medical care if it survives an abortion or delivery. The measure would impose severe penalties on health workers who don’t provide that care.

Legislative Referendum 131 was approved for next month’s election by state lawmakers in 2021, more than a year before the U.S. Supreme Court removed federal protections for abortion in June.

Abortion remains legal in Montana because of a 1999 state Supreme Court ruling that protects it under the state constitution’s right-of-privacy provision. Three laws passed by the Republican-led Legislature in 2021 to restrict abortion have been blocked while a legal challenge proceeds, arguing that they violate the constitutional provision.

But lawmakers sent LR-131 directly to voters to decide whether it should become law.

Here are five key things to know about the ballot measure:

1. What would the initiative do?

LR-131 would impose criminal penalties of up to 20 years in prison and up to a $50,000 fine on any health care worker who doesn’t try to save a “born-alive infant.” That term is defined as a legal person who breathes, has a heartbeat, or has voluntary muscle movement after an abortion or delivery.

The measure would require health care providers to “take medically appropriate and reasonable actions” to keep the fetus or infant alive, but it doesn’t define or give examples of such actions. The health care workers liable under the initiative would be doctors and nurses but also any “individual who may be asked to participate in any way in a health care service or procedure.”

The initiative includes a mandatory reporting requirement, which means that any employee or volunteer at a medical facility who is aware of a violation must report it to authorities.

2. Where did the initiative come from?

House Bill 167, the 2021 legislation that authorized the referendum, was sponsored by state Rep. Matt Regier, R-Kalispell, chair of the panel that oversees the state Department of Public Health and Human Services’ budget.

“We need to make it abundantly clear that here in Montana, the protection of all life is available,” Regier said while introducing the bill in January 2021.

The bill is very similar to model legislation created by Americans United for Life in 2018 as a template for state lawmakers nationwide. So far, 18 states have provisions along those lines, and more are considering them, according to the group. Its president and CEO, Catherine Glenn Foster, testified in support of Montana’s bill during the 2021 legislative session.

The Montana measure does not include a provision in the model legislation that gives an infant’s parents the right to refuse medical intervention if the treatment isn’t necessary to save the infant’s life, would only temporarily prolong the infant’s death, or carries risks that outweigh the potential benefits to the infant.

The Montana measure also excludes a clause in the model legislation that exempts parents and guardians from criminal and civil liability. The Montana initiative doesn’t address parental liability.

Bradley Kehr, Americans United for Life’s policy counsel, described the ballot initiative as “well tailored to the needs of Montana.”

3. What does the initiative have to do with abortion?

Regier’s bill says the purpose of the referendum is to protect infants who have survived abortions from being denied medical care and being left to die.

The measure’s passage would move the Family Research Council’s classification of Montana’s “born-alive” protections from “weak” to “strong” compared with the rest of the nation, according to Connor Semelsberger, director of federal affairs for life and human dignity for the nonprofit organization, which advocates for anti-abortion measures.

Montana is not among the nine states that require health providers to report when an infant is born alive during an abortion. The Family Research Council lists the states that do as Arkansas, Arizona, Florida, Indiana, Michigan, Minnesota, Ohio, Oklahoma and Texas.

Instances of fetuses surviving abortions are very rare. In Minnesota, which the Family Research Council points to as having the strongest protections in the U.S., five of the 10,136 abortions performed in 2021 resulted in a live birth, according to a state health department report. None of the five survived.

The number of abortions in which a fetus could survive is small, too: The point at which a fetus can survive outside the womb is generally considered to be after 22 weeks of pregnancy, and about 1% of all abortions in the U.S. happen at or after 21 weeks.

The leaders of two Montana clinics that provide abortions said the initiative’s passage would not affect their operations, as Montana law restricts performing abortions after a fetus is viable. The law does not define viability.

Nicole Smith, executive director of Blue Mountain Clinic in Missoula, said her clinic provides dilation-and-evacuation abortions that would not result in a live birth.

“We do not provide obstetric or labor-and-delivery care,” she said, adding that she would refer a patient who needed that kind of care to someone who specializes in high-risk pregnancies.

Helen Weems, director of All Families Healthcare in Whitefish, said her clinic does not perform abortions after 12 weeks. LR-131 “is designed to look like an anti-abortion measure, but it has no relevance” to her clinic, she said. “There would never be an occasion in my practice where there would be an infant born alive,” Weems said.

4. If clinics that provide abortions won’t be affected, who will?

The initiative also covers any natural birth, induced labor, or cesarean section.

That could present obstetricians and gynecologists with an ethical dilemma of having to choose between their obligation to provide the best available medical care to their patients or the potential of facing legal penalties, according to a position paper by the American College of Obstetricians and Gynecologists opposing the Montana measure.

The organization said LR-131 could require an aggressive course of treatment in extremely complex and often tragic medical situations. It opposes the measure as government interference in the patient-physician relationship that would impose additional trauma on families.

Smith said the initiative would apply to miscarriages and to hospital deliveries in cases when parents know their child won’t live but want to complete the birth for a chance to hold the baby and say goodbye.

Opponents of the ballot initiative use the example of an early labor and delivery at 20 weeks. They say that rather than allowing the family to hold, say goodbye to, or baptize the baby before it dies, the measure would require health care workers to remove it in an attempt to save its life.

A study of nearly 5,000 infants born before 27 weeks of gestation found that all 129 infants who were born before 22 weeks and were included in the study died. Two received active medical treatment. Of those born in the 22nd week, 5% survived. Most of the 24 hospitals in the study provided treatment to all infants born at 25 or 26 weeks. Those born at week 26 had an overall survival rate of about 81%, and 59% survived without moderate or severe impairment.

5. What does existing federal and state law say?

Under Montana law, it’s already a felony to purposely, knowingly, or negligently cause the death of a viable, premature infant. A federal law passed in 2002 says a person includes “every infant member of the species homo sapiens who is born alive at any stage of development.” It defines “born alive” as evidence of a heartbeat, breathing, or voluntary muscle movements, but does not include any additional provisions.

Opponents of the Montana measure point to those laws as evidence that LR-131 is unnecessary and is instead meant to drive conservative voter turnout. “This cruelty is being forced on already grieving families for the cold, calculated political gain of extreme-right politicians,” Weems said.

Regier, the legislator whose bill authorized the referendum, said current Montana law does not go far enough to protect infants.

Semelsberger, of the Family Research Council, said the same about the federal law and that it has lacked enforcement. The organization supports a federal bill introduced by U.S. Sen. Ben Sasse (R-Neb.) that would add requirements to save the life of an infant, though with up to five years of maximum prison time, instead of the 20 years in Montana’s measure.

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Kaiser Health News is a national newsroom that produces in-depth journalism about health issues. Together with Policy Analysis and Polling, KHN is one of the three major operating programs at Kaiser Family Foundation. KFF is an endowed nonprofit organization providing information on health issues to the nation.