As Montana Voters Prepare to Decide on ‘Born Alive’ Legislative Referendum, Medical Community Expresses Wide Concerns

LR-131 promises to protect Montana’s infants. Yet doctors across the state say it may bring families more harm than healing.

By Denali Sagner
Kalispell Regional Healthcare’s new Montana Children’s Medical Center. Hunter D’Antuono | Flathead Beacon

In addition to choosing between the many candidates running for public office, Montanans on Election Day will vote on LR-131, a legislative referendum that, if passed, will impact medical care for infants and their parents across the state. While proponents of the legislation say that it will hold doctors accountable and save the lives of children, numerous medical professionals have said that the bill hides a darker and more complicated reality, one that would constrain parents’ care choices and limit the ability of providers to appropriately treat terminally ill infants.

LR-131, the Medical Care Requirements for Born-Alive Infants Measure, declares that “infants born-alive, including infants born alive after an abortion, are legal persons,” and requires healthcare providers “to take necessary actions to preserve the life of a born-alive infant,” imposing criminal penalties on medical providers who fail to abide by the law. LR-131 defines a “born-alive infant” as an infant “who breathes, has a beating heart, or has definite movement of voluntary muscles, after the complete expulsion or extraction from the mother.” Healthcare providers who do not “take medically appropriate and reasonable actions to preserve the life and health of a born-alive infant” can face up to $50,000 in fines and/or imprisonment of up to 20 years.

The ballot measure was originally introduced in the Montana House of Representatives in Jan. 2021 by state Rep. Matt Regier, a Republican currently representing House District 4, which encompasses northeast Flathead County, including parts of Columbia Falls.

Though written in what its proponents argue to be clear terms, physicians across the state have expressed alarm at LR-131, which they see as both dangerously vague and a roadblock to providing compassionate care to patients and families. If passed, the legislation would require medical professionals to perform all possible lifesaving measures on any born-alive infant, even if it is clear to doctors that the infant will have no chance of survival outside of the womb. Parents faced with these tragic situations often opt to not pursue measures like CPR and resuscitation for their child, which can be both traumatizing and ineffective, according to medical professionals. Rather, many choose what doctors call “comfort” or “palliative care,” a set of medical procedures designed to make the infant and its parents as comfortable as possible in their final moments together, including pain management and bereavement counseling.

Lauren Wilson, pediatric hospitalist and president of the Montana Chapter of the American Academy of Pediatrics, said that throughout her career as a doctor, she has seen various scenarios in which born-alive infants die shortly after expulsion from the womb, and that the few moments parents spend with these infants are often painful and deeply personal. Such infants include those born too prematurely to survive outside of the womb, those with fatal genetic abnormalities, those lacking vital organs and those born prematurely due to trauma to the mother, such as being in a car accident. Parents who give birth to non-viable babies often invite relatives into the hospital room, take photos and even bring church leaders in to perform baptisms.

If LR-131 passes, Wilson said, providers would be compelled to carry out intense medical measures that may do little to save the infant, may upset grieving parents and would interrupt the limited moments they share with their child. She said the bill “shows a fundamental misunderstanding of how obstetric care works,” and creates more questions than it answers surrounding what care is and is not allowable, and who would face criminal charges for complicated medical choices typically reached by parents and their doctors.

“If you’ve seen a 19- or 20-week delivery, you can’t in good conscience go and do chest compressions and resuscitate a baby like that. That is cruel and unusual punishment,” Wilson told the Beacon. “Doctors would be in a hard place because none of us want to do that, especially over a family’s objections. None of us want to go to jail, but that’s exactly where this legislation is putting us.”

The Montana chapters of both the American College of Obstetrics and Gynecology and the American Academy of Pediatrics, as well as dozens of medical professionals and parents who have lost infants, have come out publicly against the ballot measure.

Regier said that the opposition to LR-131 has been incorrectly characterizing the legislation, and that “it has nothing to do with parental rights.” He said terminally ill babies would not be taken away from their parents under the law, and that the opposition has been “flat-out lying.” Regier emphasized repeatedly that “medical providers would have to provide medically appropriate and reasonable healthcare to infants born alive,” a medical standard he framed as incontestably clear.

“I think this is, once again, extremely clear. Medically appropriate and reasonable. If you’re following that Hippocratic Oath to ‘do no harm,’ you have nothing to worry about. If you are intentionally letting an infant die, this bill would then apply to you,” Regier said. 

Notably, infanticide is already illegal in Montana under Montana Code Annotated 45-5-102, which outlaws “purposely or knowingly [causing] the death of another human being.”

On the question of specific scenarios to which this legislation would apply, Regier said that one “could get into probably endless different situations that come up,” but that this bill is “talking about medical providers intentionally letting infants die.”

When asked explicitly if medical professionals would be prosecuted for not performing chest compressions or delivering medication to a baby with a fatal prognosis, if this was the explicit wish of the parents, Regier repeated that “this doesn’t address parental rights” and that “this is medical providers providing appropriate and reasonable care,” but did not offer a specific answer on whether or not physicians would be prosecuted in such a case.

The bill outlines not only criminal penalties for medical professionals who fail to comply, but also includes a mandatory reporting statute, requiring those who are aware of legal violations to report it to law enforcement.

Wilson said that this sort of ambiguity has provoked fear across the medical community, as it is largely unclear which situations would be punishable under the law, and which would not be. She told the Beacon that obstetric and neonatology colleagues in Montana have told her they will consider sending parents of babies with lethal anomalies out of state for care if the law passes, and that others have discussed moving out of Montana altogether to practice medicine elsewhere.

“It is very vague language. Perhaps, a physician could defend themselves over that, but nobody wants to be in court,” Wilson said. “It would certainly put us in danger.”

Though the bill text specifically protects “infants born alive after an abortion,” Regier said emphatically that this bill is not about abortion, but rather is about “infants that are born alive.”

However, in a Jan. 20, 2021 session of the Montana House Judiciary Committee, Regier and other proponents of the bill tied the ballot measure directly to the issue of abortion. Orthopedic surgeon and former state Sen. Al Olszewski, a Republican from Kalispell, speaking in favor of the bill, said doctors “have now pushed the definition of abortion from a termination of life, or the death of the person in the womb, to beyond and out of the womb,” speaking about the bill as a way to address such “post-birth abortions.”

Obstetrician-gynecologist Ingrid Skop also spoke as a proponent of the bill, discussing infants who survive failed abortions as those who would be saved by the legislation and outlining ways that abortion providers should be held accountable.

Tim Mitchell, a maternal-fetal medicine specialist who provides care to women with high-risk pregnancies, however, told the Beacon that this “clinical scenario that they describe in the bill” of viable infants surviving abortions “is not something that actually happens in real-world medical practice.” Mitchell specified that “post-birth abortion” is not a real term used by physicians, nor is it a scenario he has ever seen as a doctor.

“In my medical training and my knowledge of modern abortion care, it’s just not an outcome that actually occurs,” Mitchell said. “Any time we’re dealing with a family where we could potentially be delivering a viable newborn, we have the neonatal team there providing resuscitative care and doing everything that we can to resuscitate that newborn, while the rest of the team is trying to take care of mom.”

In a state where abortion remains uniquely legal among its neighbors, yet faces an uncertain future, any legislation that mentions the procedure raises questions for Montanans. Wilson told the Beacon that some scenarios impacted by this legislation could involve abortion care, such as women who experience fatal medical complications requiring an abortion, leading to a premature, non-viable birth. However, the vast majority of the care that would be impacted by LR-131 is entirely unrelated to abortion, and rather impacts parents facing unexpected complications with their pregnancies.

Whether voters begin preparing their absentee ballots this week or vote in person during the Nov. 8 general election, they’ll determine the fate of LR-131 along with other state and local elections.

The full text of the bill can be found on the MT Department of Justice website.

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