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

Montana voters will decide Nov. 8 whether to approve a ballot initiative declaring that a fetus or fetus is a legal person with a right to medical care if it survives abortion or delivery. The measure would impose stiff penalties on health workers who do not provide this care.

Legislative referendum 131 was approved by state lawmakers for elections next month in 2021, more than a year before the U.S. Supreme Court struck down federal protections for abortion in June.

Abortion remains legal in Montana because of a 1999 state Supreme Court ruling that protects it under the state constitution’s right-to-privacy provision. Three laws passed by the Republican-led legislature in 2021 to restrict abortion have been blocked while a legal challenge moves forward, arguing they violate constitutional provisions.

But lawmakers have sent LR-131 directly to voters to determine whether it will become law.

Here are five key things to know about ballot measures:

1. What will the initiative do?

LR-131 could punish any health care worker with up to 20 years in prison and a fine of up to $50,000 who fails to attempt to save a “live-born child.” The term is defined as a legal person who breathes, has a heartbeat, or has voluntary muscle movement after abortion or delivery.

The measure would require health care providers to “take medically appropriate and reasonable steps” to keep the fetus or child alive, but it does not define or provide examples of such actions. Accountable health care workers under the initiative would be doctors and nurses but also any “person who may be asked to participate in any way in a health care service or procedure.”

The initiative includes a mandatory reporting requirement, 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 that authorized the referendum, was sponsored by state Rep. Matt Regier (R-Kalispel), chairman of the panel that oversees the state’s public health and human services budget.

“We need to make it abundantly clear that here in Montana, all lives are protected,” Regier said when introducing the bill in January 2021.

The bill is similar to model legislation created by Americans United for Life in 2018 as a template for state lawmakers nationwide. So far, 18 states have provisions along those lines, and many more are considering them, according to the group. Its president and CEO, Katherine Glenn Foster, testified in support of Montana’s bill during the 2021 legislative session.

The Montana measure does not include a provision in the model law that gives a child’s parents the right to refuse medical intervention if the treatment is not necessary to save the child’s life, only temporarily prolongs the child’s death, or carries a risk that is greater than that. Potential benefits to the child.

The Montana measure also eliminates a section of the Model Law that exempts parents and guardians from criminal and civil liability. The Montana initiative does not address parental responsibility.

Bradley Kehr, policy counsel for Americans United for Life, described the ballot initiative as “fit with Montana’s needs.”

3. What is the relationship between the initiative and abortion?

Regier’s bill says the purpose of the referendum is to prevent abortion survivors from being denied medical care and dying.

Passage of the measure would move the Family Research Council’s classification of Montana’s “birth-to-life” protections from “weaker” to “stronger” than the rest of the country, according to Connor Semmelsberger, director of federal affairs for life and human dignity. Nonprofit organization that advocates for anti-abortion measures.

Montana is not among the nine states that require health providers to report when a baby is born alive during an abortion. The Family Research Council lists states like Arkansas, Arizona, Florida, Indiana, Michigan, Minnesota, Ohio, Oklahoma, and Texas.

Instances of fetal survival from abortion are very rare. In Minnesota, which the Family Research Council has cited as having the strongest protections in the U.S., five of the 10,136 abortions performed in 2021 resulted in live births, according to a state health department report. None of the five survived.

The number of miscarriages in which a fetus can survive is also low: the point at which a fetus can survive outside the womb is generally considered to be after 22 weeks of pregnancy, and about 1% of miscarriages in the United States occur at or after 21 weeks.

Leaders of two Montana clinics that provide abortions said the initiative’s passage will not affect their operations, as Montana law restricts abortions after a fetus is viable. The Act does not define effectiveness.

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

Helen Weems, director of All Family Health Care in Whitefish, said her clinic does not perform abortions after 12 weeks. LR-131 “is designed to look like an anti-abortion measure, but it has no relevance to the clinic”, he said. “There will never be an occasion in my practice where a baby is born alive,” Weems said.

4. If abortion clinics are not affected, who will?

The initiative also covers any natural birth, induced labor or caesarean section.

According to a position paper by the American College of Obstetricians and Gynecologists opposing the American College of Obstetricians and Gynecologists, this can present a moral dilemma of choosing between their obligation to provide the best available medical care to their patients or the possibility of facing legal penalties. Montana measure.

The agency said LR-131 is used in extremely complex and often tragic medical conditions that may require an aggressive treatment. It opposes the measure as a government intervention in the patient-physician relationship that would impose additional trauma on families.

Smith said the initiative would apply to abortions and hospital births when parents know their child won’t survive but want to complete the birth for a chance to hold the child and say goodbye.

Opponents of the ballot initiative used the example of early labor and delivery at 20 weeks. They say the measure requires health care workers to remove the baby in an attempt to save its life, instead of holding the baby before the family dies, saying goodbye or baptizing it.

A study of nearly 5,000 babies born before 27 weeks of gestation found that all 129 babies born before 22 weeks and included in the study died. Two received active treatment. 5% of those born at 22 weeks survived. Most of the 24 hospitals in the study treated all babies born at 25 or 26 weeks. The overall survival rate for those born at 26 weeks was about 81%, and 59% survived without moderate or severe impairment.

5. What do existing federal and state laws say?

Under Montana law, it is already a crime to intentionally, knowingly, or negligently cause the death of a viable, premature infant. A federal law passed in 2002 states that a person is “every infant member of the species Homo sapiens who is born alive at any stage of development.” It defines “live birth” as evidence of a heartbeat, breathing or voluntary muscle movement, but does not include any additional provisions.

Opponents of the Montana measure point to those laws as evidence that LR-131 is unnecessary and instead aimed at driving conservative voter turnout. “This cruelty is being forced on already grieving families for cold, calculated political gain by far-right politicians,” Weems said.

Regier, the legislator whose bill authorized the referendum, said current Montana law does not go far enough to protect children.

Semmelsberger, of the Family Research Council, said the same about the federal law and its lack of enforcement. The agency supports a federal bill introduced by U.S. Sen. Ben Sasse (R-Neb.) that would add a requirement to save a child’s life, although Montana’s measure carries a maximum prison term of five years instead of 20 years. .

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