Initiative puts abortion indirectly on the ballot

The University of Montana Oval echoed with the voices of nearly 100 students, many chanting, "My body, my choice! My state, my choice!" The rally was both in defense of reproductive rights but also in opposition to the so-called "Born-Alive Infant Protection Act" on the ballot this year.

The initiative, which has passed in some 18 other states, addresses a specific and uncommon situation that has attracted attention from both sides of the divisive debate over reproductive rights. Listed on the ballot as Legislative Referendum 131, the proposal requires physicians and health care professionals to provide care to any infant born alive or face criminal charges.

The initiative, which the Legislature placed on the ballot before the U.S. Supreme Court decision overturned the U.S. constitutional right to an abortion in June, adds two clauses into state law: that "a born-alive infant, including an infant born in the course of an abortion, are legal persons" and that healthcare professionals must take "all necessary actions" to save the life of an infant born-alive.

Rep. Matt Regier, a Republican from Kalispell, sponsored the initiative during the 2021 legislative session.

"I think it sends a message that we are a state that protects life," Regier said in an interview. "We're talking about the intentional killing of individual infants that are born alive, the intentional taking of that life by not providing that care."

LR-131 builds on a federal law, also entitled the Born-Alive Infant Protection Act, that was adopted in 2002. That law defined any infant with a heartbeat, respirations, or voluntary movement as a legal person. Under this definition, that infant would be entitled to adequate medical care.

The Montana ballot initiative adds several provisions not included in the federal law. Notably, if passed, any medical professional who does not provide reasonable medical care to a covered infant could face a felony charge that could carry a $50,000 fine and/or up to 20 years in prison.

The bill specifically mentions that individuals who work in abortion clinics would also be subject to these penalties.

Although it only indirectly addresses abortion, the Born-Alive Infant Protection Act attracted national attention during the 2021 legislative session. Americans United for Life, a national anti-abortion organization, testified in support of the proposal in January 2021

Glenn Foster, president and CEO of Americans United for Life, said the federal law does not go far enough, noting Montana would now require life-saving protection for born-alive infants.

"It is still necessary to require an affirmative action by a physician to ensure that an infant born alive after an abortion receives the same level of medical care as any other infant would," Foster said at the time.

Opponents counter the measure is about the state becoming involved in complicated and painful health care decisions for families.

Although the referendum's language is broader than abortion, Hillary-Anne Crosby, the campaign coordinator for the anti-131 group Compassion for Montana Families, said in an interview the proposal is "a really cruel measure that completely overlooked those real-world circumstances in order to push this false narrative around late-term abortions."

Statistics in Montana regarding infants who survive abortion attempts are scarce. In 2018, the state of Florida reported 70,083 abortions, with only six resulting in a born-alive infant – a rate of less than 0.009%.

Regardless of the frequent mentions of abortion in this referendum's narrative, Rep. Regier is adamant that LR-131 is not an abortion bill.

"That's a whole debate that I know is going to happen again this session, but that's not this," he said.

But the association representing the doctors in the middle of this debate says the implications are clear.

The Montana Medical Association testified against the bill in January 2021. The group said it strongly opposes any action that would legislate or criminalize the freedom to practice medicine. Greg Dorrington, the group's lobbyist, said that "there is a difference between medical ethics and codifying that in statute what action you are supposed to take."

Dr. Tim Mitchell, an OB/GYN, said that the state has "no business" regulating the health care decisions of doctors and families, while speaking at a Compassion for Montana Families at a rally in Helena in September.

Mitchell warned that doctors could face extreme pressures if the referendum passes.

"It will force them to provide chest compressions and place IVs and give medications even when the health care team and the family know that none of the interventions will have an impact on the tragic but inevitable outcome," Mitchell said.

But Rep. Regier said that Montanans should get to decide these questions at the ballot box.

"This is a defining issue that goes directly to who we are, and I believe Montanans should have the final say," Regier said.