What does Montana’s ‘born-alive’ referendum have to do with abortion?

When voters review their ballots this fall, the only mention of abortion they’ll see will be in the eye-catching language of LR-131, a legislative referendum on the Montana Born-Alive Infant Protection Act, which has sparked intense and bitter debate between supporters and opponents. 

The referendum was launched by House Bill 167, which passed last year’s Legislature along party lines and was signed by Gov. Greg Gianforte. It asks Montanans to vote “yes” or “no” on the following statements: that “infants born alive, including infants born alive after an abortion, are legal persons,” and that health care providers are required to “take necessary actions to preserve the life of a born-alive infant.”  

The bill’s Republican supporters have framed the measure as a clear, morally righteous policy to make it “abundantly clear” that vulnerable infants in Montana are protected from harm. If medical providers don’t comply with the law, they could be reported to law enforcement, charged with a felony, and face up to 20 years in prison and a $50,000 fine.

Opponents argue that LR-131’s language is intentionally misleading. A living infant, no matter how they were born, already has rights under Montana state law, where infanticide is illegal and anyone who “purposely, knowingly, or negligently causes the death of a premature infant born alive, if the infant is viable” faces criminal penalties. The referendum’s suggestion that infants are being killed after an abortion, according to health care providers organizing against the act, is divorced from medical fact and made in bad faith.

“It’s just part of the propaganda and false narrative surrounding abortion, of ‘botched abortions’ that result in live birth,” said Dr. Timothy Mitchell, a maternal-fetal medicine physician in Missoula and member of the LR-131 opposition group Compassion For Montana Families, during a September interview. “It just is not — that’s not something that happens.”

Instances of newborns showing signs of life after an abortion are incredibly rare, said Mary Ziegler, the Martin Luther King Jr. Professor of Law at the University of California Davis School of Law, who has written four books on America’s abortion debate. In that sense, she said, born-alive bills might be understood as a solution in search of a problem.

“It’s always curious with these bills to figure out how often this is actually happening. In other words, how often are there born-alive infants who are being denied care? Or is this just a hypothetical that’s being used to gin up support?” Ziegler said. “I just don’t think it happens much. I mean, nationally, it’s vanishingly rare.”

About 1% of all abortions take place after 21 weeks of gestation, when a fetus is nearing the point of viability, according to a 2019 report on later-term abortions from the Kaiser Family Foundation. In addition to being rare, the surgical procedure for some later-term abortions, known as dilation and evacuation, makes it “hard to imagine” the survival of a fetus, Ziegler said. At that stage of gestation, induced abortions can also happen in a hospital setting because of severe threats to the pregnant person’s health or the discovery of lethal fetal abnormalities, where the survival of the newborn is highly unlikely.

In reality, Mitchell said, Montana’s LR-131 will criminalize doctors and traumatize families in heartbreaking situations: when parents ask medical staff to stop performing life-sustaining measures on a newborn with a fatal prognosis — cases Mitchell estimates he sees 20 times a year. In such circumstances, including when infants have been born severely premature, contracted a serious infection or lack developed vital organs, Mitchell said, a newborn under current law be held and soothed by their parents until they pass.

If the Born-Alive Infant Protection Act becomes law, Mitchell said, infants would instead be “whisked away and have a provider go through these motions of providing unnecessary and invasive care, which I think is just very tragic.”

Compassion For Montana Families is primarily financed by the advocacy arms of Planned Parenthood of Montana, Blue Mountain Clinic and Montana Women Vote, a campaign spokesperson said this week. The groups were also among the members of a reproductive rights coalition that opposed the bill that created LR-131 last year.

Despite the fact LR-131 won’t impact the later-term abortion services her clinic provides, Blue Mountain Clinic Executive Director Nicole Smith said her organization’s interest in the measure is rooted in its opposition to government meddling in private reproductive health choices. 

“We are participating in the coalition because we believe that Montanans have the right to make difficult decisions with their health care providers throughout the spectrum of pregnancy,” Smith said. “Government should not be interfering in that process.”

Conservative lawmakers who backed the LR-131 proposal during the 2021 Legislature have said protecting vulnerable infants falls squarely within the role of state government. Some proponents of the measure have cast doubt on whether medical professionals can accurately determine “viability,” while others have made vague references to newborn infants being left to die after delivery, including after an abortion. 

“Before you is a bill that defines who we are as a state,” said Rep. Matt Regier, R-Kalispell, the sponsor of the bill that put LR-131 on the ballot, in testimony to the House Judiciary Committee in January 2021. “This goes right down to, are we going to stand for life, or are we going to throw it away.” 

Regier’s proposal, House Bill 167, describes a born-alive infant as one that “breathes, has a beating heart, or has definite movement of voluntary muscles” after being delivered by “natural or induced labor, cesarean section, induced abortion, or another method.”

Ziegler, from the University of California Davis, said that definition of “alive” is broad enough to encompass many situations where an infant with a fatal prognosis could be offered palliative care. If approved, she said, LR-131 would likely make medical staff more legally cautious, pushing them to instead opt for aggressive intervention treatments. 

“That may have been the intention, right? That legislators might have thought, OK, it’s better to have the default be intervention,” Ziegler said. “And the parent’s views shouldn’t matter.”

Regier did not respond to requests for an interview or comment on LR-131. Interview requests to the Montana Family Foundation and the Montana Catholic Conference, lobbying groups that supported Regier’s bill, also went unanswered. 

In a recent interview with Montana PBS, Regier reiterated his reasoning on the need for physicians to practice life-sustaining and resuscitative efforts on newborns, even when they are expected to die imminently. 

“I think it looks a lot better than death,” Regier said during that interview. “To me that is so straightforward. Would you rather be alive and in an intensive care unit or would you rather be dead? Once again, we’re coming back to protecting innocent life.”

Two parents who personally experienced the deaths of their newborns called the referendum “cruel” and “government interference” at a Wednesday press conference in Helena hosted by Compassion For Montana Families. 

Missoula resident Lea Bossler recounted the short life and May 2021 death of her premature daughter, Maesyn, who died 115 days after she was born with fetal inflammatory response syndrome. Had LR-131 been law in Montana, Bossler said, the medical staff involved in Maesyn’s end-of-life care would have been labeled criminals.

“Her death under LR-131 would have been extremely traumatic for everyone, rather than beautiful. Legally forced repeated chest compressions and epi shots would have done nothing but overdosed, bruised and broken her already dying body,” Bossler said. 

LR-131, she continued, would “infringe deeply on patient privacy, further restrict access to medical services, and eliminate infant palliative care and the human right to a dignified death, regardless of actual medical viability.”

Former Republican state Sen. Al Olszewski, now the chair of the Flathead Republican Party, sponsored a born-alive bill in 2019 that was vetoed by former Gov. Steve Bullock, a Democrat. The intent of his proposal, Olszewski said this month, was not to “go after children and families dealing with the tragedy of fetal abnormalities.” Rather, he said, the bill sought to clarify that all born-alive babies had legal protections.

Opponents reject that stated objective, pointing again to the criminal statutes already protecting infants from medical mistreatment and neglect, and say Republican lawmakers are trying to increase voter turnout among their conservative base — especially by mentioning abortion in the referendum’s language.

Planned Parenthood of Montana CEO Martha Fuller said last year the evidence of that motive is apparent in the fact that the Born-Alive Infant Protection Act is being presented as a ballot referendum when an identical bill could have been passed by lawmakers and signed by the governor without voter approval.  

“If enacting such a policy — rooted in “pro-life” values — were the goal, it could have been swiftly and easily accomplished in the 90 days allotted for the 2021 legislative session,” Fuller wrote in an op-ed published in April 2021. “They chose instead to force the passage of the HB 167 referendum that will now put this subject on the 2022 ballot. They took your faith in their anti-abortion stance and used it for their own political gain.” 

Olszewski said he supports the measure as a ballot referendum instead of a traditional bill because taking an issue directly to voters is “the highest form of democracy.” 

In response to the allegation that LR-131 uses the suggestion of unsuccessful abortions to draw in issue-driven voters, Olszewski accused the referendum’s opponents of using similar tactics. Equating the referendum with an infringement on parental rights and medical care, he said, is “a bold exaggeration and hyperbole” designed to push Democrats to the ballot box.

“I would call them on the same thing,” Olszewski said. “I guess that’s what we do in politics.”