Two voters fill out their midterm election ballots at Hamilton High School on Tuesday, Nov. 8, 2022. Credit: John Stember / MTFP

When Dr. Timothy Mitchell, a maternal-fetal medicine specialist in Missoula, read the bill behind Montana’s LR-131, the Born-Alive Infant Protection Act, he said, he was motivated for the first time in his medical career to get involved in a political campaign about reproductive health.

The Republican-sponsored referendum, which voters rejected last week by a 6 percentage point margin, would have required medical providers to apply life-sustaining efforts to newborns born after an induced abortion, natural labor or cesarean section, including those with fetal anomalies who have no chance of survival. 

“The first thing that came to my mind was like, these patients who have these horrific pregnancy complications are all going to be affected by this. And we’re going to have to intervene under threat of decades of prison and financial ruin.”

Dr. timothy mitchell, maternal-fetal medicine specialist

Supporters promoted the referendum as a way to shore up preexisting legal protections for born-alive infants and democratize lawmaking by putting the question before voters. Opponents argued that LR-131’s premise — that surviving infants could otherwise be left to die after an abortion — was misleading and intentionally provocative. In reality, they said, LR-131 would compel doctors and nurses to intervene in futile and tragic circumstances, taking a dying infant away from their parents for invasive procedures in their final moments of life. 

If adopted, the act would have criminalized noncompliant providers with a felony punishable by up to 20 years in prison and a $50,000 fine. 

Mitchell said he was “horrified” by the bill’s directives.

“The first thing that came to my mind was like, these patients who have these horrific pregnancy complications are all going to be affected by this,” Mitchell said in a recent phone interview. “And we’re going to have to intervene under threat of decades of prison and financial ruin. So that really kind of captured my attention.”

The organized opposition movement that Mitchell became a part of spent hundreds of thousands of dollars and countless volunteer hours trying to get that message to as many Montana voters as possible. As the dust settled on last week’s election, the campaign’s defeat of LR-131 became one of a handful of nationwide wins for the reproductive rights movement, and a possible signal of caution for Republican lawmakers hoping to put similar bills before voters in upcoming election cycles.

More than 230,000 Montana voters indicated their displeasure with LR-131, according to ballot counts published by the secretary of state’s website last week. It became one of five state ballot initiatives nationwide that ended up going the way reproductive rights advocates had hoped after the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health turned abortion regulation entirely over to the states. In Kentucky, Michigan, Vermont and California, voters affirmed the right to access abortion and make decisions about pregnancy generally. In and Montana, reproductive rights advocates distilled LR-131’s failure as a rebuke to government interventions in reproductive medical care.

About 22,500 more voters cast ballots against the referendum than those who voted for it, and not only in reliably progressive counties like Missoula and Gallatin. The measure also failed in Yellowstone, Treasure and Hill counties, and passed by sometimes razor-thin margins in others that lean conservative: Lake County in the Flathead Valley, for example, voted to pass the referendum by only 19 votes. 

“I think it sends a little bit of a message about abortion in Montana and what people might feel about it. My personal feeling is an all-out abortion ban is probably not supported by a majority of Montanans.”

state Sen. Greg Hertz, R-Polson

The coalition organizing the opposition effort, Compassion for Montana Families, did not sit on the sidelines while voters considered the ballot proposal. In state campaign finance filings, the committee reported spending more than $715,000 on advertising and voter outreach in the months leading up to the vote, including digital and television commercials, polling, and phone banking. The effort was funded in part by state and national reproductive rights advocacy groups and Montana abortion providers, including Planned Parenthood of Montana and Blue Mountain Clinic in Missoula. One federal super PAC that supported the anti-LR-131 campaign, Families United for Freedom, also reported giving hundreds of thousands of dollars this fall to oppose a constitutional ban on abortion in Kansas.  

Despite the robust spending, the failure of LR-131 still surprised some doctors, nurses and organizers who had spent months recording ads, writing op-eds, holding press conferences and knocking doors to urge opposition to the initiative.

“We were told that it was a long shot,” said Dr. Lauren Wilson, a pediatric hospitalist and president of the Montana chapter of the American Academy of Pediatrics, in a post-election interview. Wilson said she was so nervous about LR-131’s possible passage that she went to knock a few more doors before polls closed on Election Day “out of anxiety.” 

“I spent quite a long time thinking that this was likely going to pass and we’re going to have to figure out what to do at that point,” Wilson said. That LR-131 failed, she said, is “a hopeful sign for Montana that people can understand nuance … Hopefully it will help people to have a little bit more thoughtfulness and compassion before they criminalize medical decisions.”

While opponents spent months emphasizing that LR-131 wouldn’t have any effect on abortions in Montana, which remains legal until fetal viability, some saw the referendum as a bellwether in the evolving landscape of reproductive rights and a caution for Republicans who may want to put another abortion-related question before voters in future election cycles. 

Planned Parenthood Advocates of Montana, the political arm of the state health group, said in a  Thursday statement that LR-131’s failure made clear that Montanans “support reproductive freedom and do not want politicians interfering in medical decisions.”

Martha Fuller, the president and CEO of the Planned Parenthood group, said that while the Republican strategy to put the question to voters “backfired,” the effort to “protect reproductive rights in Montana is far from over.”

“Time and again, anti-abortion lawmakers have proven they will stop at nothing to score cheap political points and strip constituents of their basic freedoms,” Fuller said. “Planned Parenthood Advocates of Montana will be on high alert during the upcoming legislative session and ready to fight back against new attacks on our bodies, lives, and futures.”

At least 10 bill drafts regulating abortion, including restrictions on the procedure and efforts to codify its legality, have already been requested by state lawmakers before the upcoming session, where Republicans will hold a supermajority. The title of another bill to “establish that an infant born alive is a person,” requested by Rep. Jen Carlson, R-Manhattan, echoes some of the language in LR-131.

Kyle Schmauch, a spokesperson for Senate Republicans, said on Monday that it is too early to know how LR-131’s failure might affect the caucus’ strategy regarding abortion legislation. The first step, Schmauch said, is for Republicans to select lawmakers to serve in leadership positions this week.

“New leadership teams will be elected at caucus on Wednesday which will help determine the direction and emphases of the 68th Legislature. It will take the new leadership teams some time to get organized and strategize for the upcoming legislative session,” Schmauch said. “Legislative policymaking is a process that requires the input of all lawmakers and of the public.”

Rep. Matt Regier, R-Kalispell, the sponsor of the bill that put LR-131 on the ballot, is one of the lawmakers vying for the position of House Speaker for the upcoming session. Regier did not respond to a voicemail seeking comment on Monday. 

related

Montanans reject LR-131 ‘Born Alive’ referendum

Montana ballot initiative LR-131 failed muster among voters this week, with ballot counts Thursday morning showing the Montana Born-Alive Infant Protection Act was shot down by more than 22,500 votes. The Montana secretary of state’s office reported 53% of voters opposed LR-131 and 47% voted in favor. The Associated Press called the result Thursday morning after all precincts had been reported.

In statements after the election, other Republican lawmakers referenced LR-131’s demise as a possible forecast for how other abortion-oriented ballot initiatives or constitutional amendments might fare with voters.

“I think it sends a little bit of a message about abortion in Montana and what people might feel about it,” Sen. Greg Hertz, R-Polson, said in a Friday interview with Montana Free Press. “My personal feeling is an all-out abortion ban is probably not supported by a majority of Montanans.”

Speaking at a public forum hosted by the University of Montana’s Mansfield Center the day after the election, Rep. Llew Jones, R-Conrad, said he was not surprised by the fate of LR-131.

“I knew it would be close, but I had not thought that was probably the right way to do that sort of an item anyway,” Jones said about the ballot referendum process. 

Other abortion regulations may be proposed and passed as standard legislation in the upcoming session, such as the slate of laws that sailed through the Republican-controlled House and Senate in 2021. When those debates inevitably come before legislative committees next year, some of the professionals who opposed LR-131 say, they hope lawmakers will listen to how such bills would criminalize their medical practices and impact their patients’ health.

Mitchell, the maternal-fetal medicine specialist, echoed that hope while cautioning that he’s preparing for providers like himself to face an uphill battle against reproductive regulation.

“I would love to see us brought into this conversation more. And I think we need to be more active in making sure that the fields of medicine that these bills and these laws are being written about, and that the physicians who are being criminalized for the kind of standard medical care that’s being practiced across the state, would have a say at the table,” Mitchell said. “But I don’t know if there’s a lot of interest in that.”

“It wouldn’t surprise me if we see this same, very similar bill again,” he said. “These are talking points and things that get people emotional and fired up.”

Arren Kimbel-Sannit contributed reporting.

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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.