Dr. Brad Holbrook, a maternal-fetal medicine physician in Missoula, speaks against LR-131 at the state Capitol Building in Helena on October 27, 2022. Credit: Mara Silvers/MTFP

With absentee ballots arriving in mailboxes across the state and less than two weeks before Election Day, Montana’s leading medical associations are stepping up their opposition to LR-131, the ballot referendum to adopt the Montana Born-Alive Infant Protection Act.

Speaking to reporters in the Capitol Rotunda on Thursday, members of the Montana Medical Association, Montana Hospital Association, Montana Nurses Association and the state chapter of the American Academy of Pediatrics said the referendum would criminalize doctors and medical staff who provide palliative care to newborns with fatal prognoses, even when parents ask to hold their babies during their final moments instead of asking doctors to try to sustain their infants’ life as long as possible. Together, the groups represent more than 3,000 providers statewide.

If passed, the referendum says that physicians and other staff who do not provide life-sustaining treatment to newborns, no matter their condition, would face felony charges punishable by up to 20 years in prison and a $50,000 fine.

Jean Branscum, CEO of MMA, said the group would be “exploring all avenues and options” if the referendum passes, including challenging the law in court.

“Montana’s health care providers should not face twenty years in prison for providing quality medical care,” Dr. William Gallea, former president of the MMA. “These are tragedies, not crimes.”

The Republican-sponsored referendum, passed last spring on nearly party-line votes, was described by its backers as a way to ensure that born-alive infants are legal persons entitled to medical care. The text of the measure defines a born-alive infant as one that is delivered “at any stage of development” by “natural or induced labor, cesarean section, induced abortion, or another method” and “breathes, has a beating heart, or has definite movement of voluntary muscles.”

Supporters championed the referendum as a protective measure for infants born alive after an abortion, a mobilizing concept among national anti-abortion advocates. But medical researchers and fact-checkers show those experiences are highly uncommon and usually involve pregnancies that are terminated because of medical complications or severe fetal abnormalities. In a 12-year period of data reviewed by the Centers for Disease Control and Prevention, 143 infants were reported to live briefly after an “induced termination,” though 96% did not survive longer than 24 hours.  

On Thursday, opponents of LR-131 argued that state government shouldn’t be interfering with how parents and medical providers navigate high-risk pregnancies and cases of fatal fetal development. 

Dr. Brad Holbrook, an obstetrician and maternal-fetal medicine physician in Missoula, said his patients sometimes face immensely difficult decisions after they discover serious fetal abnormalities late in pregnancy or when their baby is born severely premature. Some parents decide to pursue resuscitative efforts for their newborns. Other times, Holbrook said, they hold and comfort their baby for as long as they can.

One of his patients, after learning of her baby’s lethal anomalies near the 20th week of pregnancy, decided to carry her pregnancy to term. After the delivery, Holbrook said the mother held her baby close to her chest until the infant passed away.

“This mother later told me that this experience of meeting her child, who only survived for a few moments, was one of the best experiences of her life. I can’t help but think about how different her experience would have been had LR-131 been law at the time,” Holbrook said. “It would have mandated that the baby be taken from her arms and undergo cold, sterile medical interventions that would have no bearing on the chance of that baby surviving.”

Proponents of LR-131, including bill sponsor Representative Matt Regier, R-Kalispell, have said the requirement for medical care, even in cases involving long odds of survival, is “a lot better than death” for a newborn infant. Other current and former Republican lawmakers, including Rep. Lola Sheldon-Galloway, R-Great Falls, have said opponents are misinterpreting the intent of the bill by framing it as a prohibition on end-of-life care for terminal infants. 

In a September interview with Montana Free Press, former state Sen. Al Olszewski of Kalispell, who sponsored a similar bill in 2019, said the claims from groups opposing LR-131 are a “bold exaggeration and hyperbole” to scare Montanans into voting against the referendum. 

related

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

When voters review their ballots in November, the only mention of abortion they see will be in the eye-catching language of LR-131, a referendum on the Montana Born-Alive Infant Protection Act. But the measure’s actual link to abortion, according to medical professionals organizing against the referendum, is divorced from medical fact.

Speaking Thursday at the Capitol, Dr. Lauren Wilson, president of Montana’s chapter for the American Academy of Pediatrics and a pediatric hospitalist, said the text of the referendum gave no indication that physicians or parents would be allowed to discontinue life-saving care for a newborn.

“There’s nothing, nothing in the law that says that. In fact, quite the opposite,” Wilson said.

While a model version of the legislation from the anti-abortion group Americans United For Life had a provision for protecting palliative medical care, Wilson noted that clause wasn’t included in the text of the Montana referendum. 

“Without that guarantee, it’s our lives and livelihoods on the line,” she said. “This bill has made no provisions for parents as decision-makers for their children.”

Dr. Erin Green, a pediatrician at Helena Pediatric Center, said that the high stakes for families, newborns and medical practitioners if LR-131 passes. Reading a statement on behalf of a Montana neonatal intensive care unit nurse who she said did not want to be identified, Green said these medical decisions and hardships should not be decided by a blanket government restriction.

“This isn’t about pro-life versus pro-choice. Many of the opponents of this bill are very pro-life,” Green read. “This is about not allowing politicians to dictate something that they don’t understand.”

Election Day is Tuesday, November 8.

Editor’s Note: This story was updated after publication Oct. 28 to correct the title of the medical professional whose statement was read by Dr. Erin Green.

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Mara writes about health and human services stories happening in local communities, the Montana statehouse and the court system. She also produces the Shared State podcast in collaboration with MTPR and YPR. Before joining Montana Free Press, Mara worked in podcast and radio production at Slate and WNYC. She was born and raised in Helena, MT and graduated from Seattle University in 2016.