5 things to know about Montana's Born Alive ballot initiative

5 things to know about Montana's Born Alive ballot initiative

Montana voters will decide Nov. 8 whether to approve a ballot initiative that would state that an embryo or fetus is a legal entity with a right to medical care if it survives an abortion or delivery. The measure would impose severe penalties on health workers who fail to provide this care.

Bill 131 was approved by state legislatures in 2021 for next month's election, more than a year before the U.S. Supreme Court struck down federal protections for abortion in June.

Abortion remains legal in Montana because a 1999 state Supreme Court ruling that protects it under the state constitution Provision on the right to privacy. Three bills were passed by the Republican-led Legislature in 2021 to restrict abortion were blocked while a legal challenge is underway on the grounds that they violate the constitutional provision.

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

Here are five important 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 fails to attempt to save a “child born alive.” This term refers to a legal entity that breathes, has a heartbeat, or performs voluntary muscle movement after an abortion or childbirth.

The measure would require health care providers to “take medically appropriate and reasonable measures” to keep the fetus or child alive. However, such measures are neither defined nor examples given. Healthcare workers liable under the initiative would include doctors and nurses, but also any “person who may be asked to participate in any way in a healthcare service or procedure.”

The initiative includes mandatory reporting, meaning 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 law authorizing the referendum was sponsored by the state House of Representatives. Matt Gover (R-Kalispell), chairman of the panel that oversees the budget of the state Department of Public Health and Human Services.

“We must make it clear that protecting all life is possible here in Montana.” Governer said when introducing the bill in January 2021.

The calculation is very similar Model legislation created by Americans United for Life in 2018 as a template for state legislatures across the country. So far, 18 states have provisions along these lines and more are considering them, the group said. Your President and CEO, Catherine Glenn Foster, testified in support of Montana's bill during the 2021 legislative session.

The Montana measure does not contain a provision in model legislation that gives the parents of an infant the right to refuse medical intervention if the treatment is not necessary to save the infant's life, would only temporarily prolong the infant's death, or poses risks that outweigh the potential benefits to the child.

The Montana measure also excludes a provision in the model legislation that exempts parents and guardians from criminal and civil liability. The Montana Initiative does not address parental liability.

Bradley Kehr, policy counsel for Americans United for Life, 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 states that the purpose of the referendum is to protect infants who survive abortions from being denied medical care and left to die.

Passage of the measure would delay the Family Research Council's rating of Montana's born-alive protections “weak” to “strong” compared to the rest of the nation, said Connor Semelsberger, director of federal affairs for life and human dignity at the nonprofit organization that advocates for anti-abortion action.

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

Cases of fetuses surviving abortions are very rare. In Minnesota, which has the strongest protections in the U.S. according to the Family Research Council, five of the 10,136 abortions performed in 2021 resulted in a live birth. according to a report from the state Department of Health. None of the five survived.

The number of abortions in which a fetus could survive is also small: the point at which a fetus can survive outside the uterus is generally around the 22nd week of pregnancy 1% of all abortions in the United States occur at 21 weeks or later.

The leaders of two Montana clinics that perform abortions said passage of the initiative would have no impact on their operations because Montana law restricts performing abortions after a fetus is viable. The law does not define profitability.

Nicole Smith, executive director of the Blue Mountain Clinic in Missoula, said her clinic offers dilation and evacuation abortions that do not result in a live birth. “We don’t provide obstetrics or obstetrics,” she said, adding that she would refer a patient who needs that type of care to someone who specializes in high-risk pregnancies.

Helen Weems, director of All Families Healthcare in Whitefish, said her clinic no longer performs abortions after 12 weeks. LR-131 “is intended to look like an anti-abortion measure, but has no relevance to their clinic,” she said. “In my practice, it would never happen that a child is born alive,” Weems said.

4. If clinics that offer abortions are not affected, who is?

The initiative also covers all natural births, induced labor and cesarean sections.

This could present obstetricians and gynecologists with an ethical dilemma as they must choose between their obligation to provide their patients with the best possible medical care and the possibility of legal penalties, according to a Position paper from the American College of Obstetricians and Gynecologists against the Montana measure.

The organization said LR-131 may require aggressive treatment in extremely complex and often tragic medical situations. She rejects the measure because it represents government intervention in the patient-doctor relationship, which would impose additional trauma on families.

Smith said the initiative applies to miscarriages and hospital deliveries in cases where parents know their child will not survive but want to complete the birth to have the opportunity to hold the baby and say goodbye.

Opponents of the ballot initiative use the example an early labor and delivery in the 20th week. Instead of allowing the family to hold the baby, say goodbye or baptize it before it dies, health care workers would have to remove the baby to save its life, they say.

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

5. What does current federal and state law say?

According to Montana law It is already a criminal offense to intentionally, knowingly or negligently cause the death of a viable premature baby. A federal law The law, passed in 2002, states that a person includes “any infant of the species Homo sapiens born alive at any stage of development.” It defines “born alive” as signs of a heartbeat, breathing or voluntary muscle movements, but does not contain any additional provisions.

Opponents of the Montana measure point to these laws as evidence that LR-131 is unnecessary and is instead intended to increase turnout among conservative voters. “This cruelty is already being forced on grieving families for the cold, calculated political gain of right-wing extremist politicians,” Weems said.

Regier, the lawmaker whose bill approved the referendum, said Montana's current law doesn't go far enough to protect young children.

Semelsberger of the Family Research Council said the same thing about the federal law and that it lacks enforcement. The organization supports a federal bill introduced by U.S. Senator Ben Sasse (R-Neb.), which would add the requirement to save the life of an infant, but with a maximum prison sentence of up to five years, instead of the 20 years in Montana's standard.

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