5 things to know about Montana’s ‘Born Alive’ ballot initiative

Montana voters will decide Nov. 8, whether to approve a ballot measure declaring that an embryo/fetus can be considered a legal person. This means that it has the right to receive medical care if it survives abortion or delivery. Health workers who refuse to provide this care would face severe penalties.

Legislative Referendum 131 was approved by state legislators in 2021 for next month’s elections. This approval came more than a full year before the U.S. Supreme Court lifted federal protections for abortion in June.

Montana’s 1999 Supreme Court decision that protected abortion under the state constitution’s right to privacy provision in Montana means that it is legal in Montana. Three bills that were passed in 2021 by the Republican-led legislature to restrict abortion were blocked while a legal challenge was filed, claiming they violated the constitutional provision.

LR131 was sent to the voters by legislators to determine if it should become law.

These are five things you need to know about the ballot initiative:

1. What would you do with the initiative?

LR-131 would impose criminal sanctions of up to 20 year imprisonment and a maximum fine of $50,000 on any health care worker who does not try to save a “born-alive” infant. The term “born-alive infant” refers to any legal person who is able to breathe, have a heartbeat, and has voluntary muscle movement following an abortion or delivery.

This measure would require health-care providers to take “medically appropriate and reasonable actions” in order to keep the infant or fetus alive. However, it does not define or give examples. This initiative will make health care workers responsible. It would include nurses and doctors, but it also covers any individual who might be asked to take part in any health care service or procedure.

This initiative contains a mandatory reporting requirement. Any employee or volunteer working in a medical facility that is aware of a violation must report it immediately to the authorities.

2. Where did the idea come from?

House Bill 167, which authorizes the referendum in 2021, was sponsored and sponsored by Matt Regier, a state representative from Kalispell, who chairs the oversight panel that oversees the state Department of Public Health and Human Services budget.

Regier stated, “We must make it abundantly obvious that here in Montana the protection of all lives is available,” while introducing the bill on January 20, 2021.

This bill is very similar in structure to the model legislation that Americans United for Life created in 2018 as a template for all state legislators. According to the group, at least 18 states have adopted similar provisions, while more are in process of implementing them. Catherine Glenn Foster, its president and CEO, supported Montana’s bill in the 2021 legislative sessions.

Montana’s model legislation does not contain a provision that allows parents to refuse medical intervention to an infant if it isn’t necessary to save their child’s life, wouldn’t temporarily prolong his death, or has risks that outweigh any potential benefits for the infant.

A clause in the Montana model legislation exempting parents and guardians from civil and criminal liability was also excluded by the Montana measure. The Montana initiative does nothing to address parental liability.

Bradley Kehr is Americans United for Life’s policy counselor. He described the ballot initiative to be “well tailored for the needs of Montana.”

3. What does the initiative have do with abortion?

Regier’s bill states the referendum was created to protect unborn babies who have survived an abortion from being denied medical treatment and being left to die.

According to Connor Semelsberger who is the director of federal affairs in life and human dignity of the non-profit organization which supports anti-abortion legislation, the passage of the measure would elevate Montana’s “born-alive protections” from “weak” status to “strong” if the measure passes.

Montana is not required to notify health providers if an infant is born alive in an abortion. The Family Research Council lists these states as Arkansas, Arizona Florida, Michigan, Minnesota and Ohio.

Rarely do fetuses survive abortions. Minnesota has the strongest protections in America, and five of the 10,136 abortions done in 2021 in Minnesota resulted in live births, according to a report from the state health department. None of the five survived.

It is rare for a fetus to survive an abortion. The average age at which a baby can survive outside the womb after 22 weeks is the norm. About 1% of all abortions occurring in the U.S. occur at or after 21 weeks.

Two Montana abortion clinics leaders said that the initiative’s passage wouldn’t affect their operations. Montana law prohibits abortions performed after a viable fetus. The law doesn’t 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. She stated that the clinic does not offer obstetrical or labor-and delivery care. However, she added that she would refer patients who need that type of care to someone who is experienced in high-risk pregnancies.

Helen Weems, the director at All Families Healthcare Whitefish, stated that she does not perform abortions beyond 12 weeks. She said that LR-131 was “designed to appear like an anti-abortion policy, but it does not have any relevance to her clinic.” Weems claimed that “there would never be an instance in my practice where an infant was born alive.”

4. If abortion clinics don’t get affected, who will?

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

The Montana legislation could create a moral dilemma for gynecologists and obstetricians.

According to the organization, LR-131 may require aggressive treatment for extremely complicated and often fatal medical situations. The organization opposes the measure because it would cause additional trauma to families and interfere with the relationship between patient and physician.

Smith stated that the initiative will apply to miscarriages as well as hospital deliveries for parents who know their child is not going to live, but still want to give birth to the baby to say goodbye.

The ballot initiative opponents use the example that a 20-week-old baby is born at 20 weeks and an early labor. They claim that instead of allowing the family members to say goodbye and baptize their baby before it dies but allowing them to keep it, the measure would require the health care workers to remove it to save it’s life.

Nearly 5,000 infants were examined and found that all but two of the 129 who were born after 22 weeks had died. Two of the infants were treated with active medical care. Only 5% of those born in the 22nd weeks survived. The majority of 24 hospitals that participated in the study treated all infants who were born between 25-26 weeks. The overall survival rate for infants born in week 26 was 81%. 59% of those who survived were not severely or moderately impaired.

5. What is the meaning of existing federal and state law?

Montana law already makes it a crime for a person to deliberately, knowingly, nor negligently cause death of a live, preterm infant. A 2002 federal law defines a person as any infant member of the homo sapiens species who was born alive at any stage. The law defines “born alive” as any evidence of heartbeat, breathing or voluntary muscle movements. It does not contain any other provisions.

Opponents to the Montana measure point out that those laws are evidence that LR-131 does not need to be used and is instead intended to increase conservative voter turnout. Weems stated that this cruelty was being forced upon already grieving families in order to achieve the cold, calculated political gains of extremist politicians.

Regier, who was the legislator that authorized the referendum, stated that Montana’s current law doesn’t go far enough in protecting infants.

Semelsberger, from the Family Research Council, stated the same about federal law and said it had not been enforced. U.S. senator Ben Sasse (Republican of Nebraska) introduced a federal bill. The support was expressed by the Family Research Council. The bill would require that infants be saved, with up to 5 years maximum imprisonment time instead of the standard 20 years under Montana’s law.

KHN (Kaiser Health News), a national newsroom, produces in-depth journalism on health issues. KHN, along with Policy Analysis and Polling are the three main operating programs of KFF (Kaiser Family Foundation). KFF is an endowed non-profit organization that provides information to the nation on health issues.

Get the KHN Morning Briefing for free.