Montana voters will decide on Nov. 8 whether to approve a ballot initiative declaring that an embryo or fetus is a legal person entitled to medical care if it survives an abortion or childbirth. The measure would impose stiff penalties on health workers who fail to provide such care.
Legislative Referendum 131 has been approved for next month’s election by state lawmakers in 2021, more than a year before the US Supreme Court struck down federal abortion protections in June.
Abortion remains legal in Montana due to a 1999 state Supreme Court ruling that protects it under the privacy provision of the state constitution. Three laws passed by the Republican-led Legislature in 2021 to restrict abortion have been blocked while a legal challenge is pending, arguing they violate the constitutional provision.
But lawmakers sent LR-131 directly to voters to decide whether it should become law.
Here are five key things to know about poll measurement:
1. What would the initiative do?
LR-131 would impose criminal penalties of up to 20 years in prison and up to $50,000 in fines for any healthcare worker who fails to try to save a “born alive child”. This term is defined as a moral person who breathes, has a heartbeat or has voluntary muscle movement after an abortion or childbirth.
The measure would require health care providers to “take medically appropriate and reasonable measures” to keep the fetus or infant alive, but it does not define or give examples of such measures. Responsible health care workers under the initiative would be doctors and nurses, but also anyone “who might be asked to participate in some way in a healthcare service or procedure. health “.
The initiative includes a mandatory reporting requirement, which means that any medical facility employee or volunteer who is aware of a breach must report it to authorities.
2. Where does the initiative come from?
House Bill 167, the 2021 legislation that authorized the referendum, was sponsored by State Representative Matt Regier (R-Kalispell), chairman of the committee that oversees the budget of the Department of Public Health and Human Services in the state.
“We need to say very clearly that here in Montana, the protection of all life is available,” Regier said when introducing the bill in January 2021.
The bill is very similar to model legislation created by Americans United for Life in 2018 as a model for state legislators nationwide. So far, 18 states have such provisions, and more are considering them, according to the group. Its president and CEO, Catherine Glenn Foster, testified in support of the Montana bill during the 2021 legislative session.
Montana’s measure does not include a provision in model legislation that gives a child’s parents the right to refuse medical intervention if the treatment is not necessary to save the child’s life, would only temporarily extend the death of the infant or involves risks that outweigh the potential benefits to the infant.
Montana’s measure also excludes a clause in the model law that exempts parents and guardians from criminal and civil liability. Montana’s initiative does not address parental responsibility.
Bradley Kehr, political advisor for Americans United for Life, described the ballot initiative as “well suited to Montana’s needs.”
3. What does the initiative have to do with abortion?
Regier’s bill states that the purpose of the referendum is to protect infants who survive abortions from denial of medical care and death.
According to Connor Semelsberger, director of federal affairs for life and human dignity for the nonprofit organization, which advocates for anti-abortion measures.
Montana is not one of nine states that require health care providers to report the birth of a live child during an abortion. The Family Research Council lists states that do like Arkansas, Arizona, Florida, Indiana, Michigan, Minnesota, Ohio, Oklahoma, and Texas.
Cases of fetuses surviving abortions are very rare. In Minnesota, which the Family Research Council considers to have the strongest protections in the United States, five of 10,136 abortions performed in 2021 resulted in a live birth, according to a state health department report. None of the five survived.
The number of abortions in which a fetus could survive is also small: the time at which a fetus can survive outside the womb is generally considered to be after 22 weeks of pregnancy, and about 1% of all abortions in the United States States occur at or after 21 weeks.
Leaders of two Montana clinics that offer abortions said passing the initiative would not affect their operations because Montana law limits abortions after a fetus is viable. The law does not define viability.
Nicole Smith, executive director of the Blue Mountain Clinic in Missoula, said her clinic offers dilation and evacuation abortions that would not result in a live birth. “We don’t provide obstetric care or labor and delivery,” she said, adding that she would refer a patient who needed that type of care to someone who specializes in high-risk pregnancies.
Helen Weems, director of All Families Healthcare 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 nothing to do” with her clinic, she said. “There would never be an occasion in my practice where there was a child born alive,” Weems said.
4. If clinics offering abortions will not be affected, who will?
The initiative also covers any natural childbirth, induced labor or caesarean section.
This could place obstetricians and gynecologists in an ethical dilemma of having to choose between their obligation to provide the best medical care available to their patients or the risk of legal sanctions, according to a position paper from the American College of Obstetricians and Gynecologists. opposing the Montana Measure.
The organization said LR-131 could require aggressive treatment in extremely complex and often tragic medical situations. He objects to the measure as government interference in the patient-doctor relationship that would impose additional trauma on families.
Smith said the initiative would apply to miscarriages and hospital births in cases where parents know their child will not live but want to complete the birth to have a chance to hold the baby and tell the see again.
Opponents of the ballot initiative use the example of early labor and delivery at 20 weeks. They say that rather than allowing the family to hold, say goodbye or christen the baby before he dies, the measure would force health workers to remove him in an attempt to save his life.
A study of nearly 5,000 infants born before 27 weeks gestation found that all 129 infants born before 22 weeks and included in the study died. Two received active medical treatment. Of those born at week 22, 5% survived. Most of the 24 hospitals in the study provided treatment to all infants born at 25 or 26 weeks. People born at week 26 had an overall survival rate of 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 willfully, knowingly, or negligently cause the death of a viable premature infant. A federal law passed in 2002 states that a person includes “any infant member of the species homo sapiens who is born alive at any stage of development.” It defines “born alive” as evidence of a heartbeat, breathing, or voluntary muscle movement, but does not include any additional provisions.
Opponents of the Montana measure say these laws prove that LR-131 is unnecessary and instead is intended to boost conservative voter turnout. “This cruelty is imposed on families already grieving for the cold, calculated political gain of far-right politicians,” Weems said.
Regier, the lawmaker whose bill authorized the referendum, said Montana’s current law doesn’t go far enough to protect infants.
Semelsberger of the Family Research Council said the same thing about the federal law and that it hasn’t been enforced. The organization supports a federal bill introduced by U.S. Sen. Ben Sasse (R-Neb.) that would add requirements to save a child’s life, but with up to a maximum of five years in prison, instead of the 20 years as far as Montana. .
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