Montanans Reject ‘Born-Alive’ Measure Despite Broad Wins for Republicans

Medical providers express relief, future of statewide reproductive legislation unclear after the failure of LR-131

By Denali Sagner
A polling station at the Flathead County Fairgrounds in Kalispell on Nov. 8, 2022. Hunter D’Antuono | Flathead Beacon

Montana voters on Tuesday rejected LR-131, a ballot measure that would have reshaped infant and obstetric care and imposed criminal penalties on noncompliant medical providers throughout the state. The measure, which failed by a margin of around 22,500 votes, performed far worse than the state’s field of Republican candidates, who celebrated sweeping victories on Election Day.

While pundits have declared the failure of LR-131 a victory for abortion rights, medical providers and political analysts spoke of a more complicated future for reproductive legislation in Montana.

Formally titled the “Medical Care Requirements for Born-Alive Infants Measure,” LR-131 sought to “[protect] born-alive infants by imposing criminal penalties on health care providers who do not act to preserve the life of such infants, including infants born during an attempted abortion.” The legislation defined 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.” Under LR-131, healthcare providers who did not provide “medically appropriate care and treatment” to such infants would face a fine of up to $50,000 or imprisonment of up to 20 years, or both.

While proponents of the ballot measure characterized it as a clear set of guidelines that would protect infants from negligent doctors, medical providers argued that it would limit parental rights and constrict doctors’ abilities to adequately care for infants and families.

In an interview with the Beacon last month, Flathead County Republican state Rep. Matt Regier, the architect of LR-131, said, “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 could not be immediately reached for comment on the ballot measure’s defeat.

Lauren Wilson, pediatric hospitalist and president of the Montana Chapter of the American Academy of Pediatrics, however, told the Beacon in October that for various reasons, born-alive infants can die shortly after expulsion from the womb, leaving parents with difficult decisions about how to spend their few moments with their child. Under LR-131, Wilson said, providers would have been compelled to carry out intense medical measures that may have done little to save the infant and would have interrupted this limited time. Wilson also highlighted what she described as the bill’s unclear language, which left providers with questions about what care would have been allowable, and what may have led to a criminal prosecution.

“I’m glad that the voters of Montana saw the issues with this bill and saw that it was an invasion of privacy that was actually going to do more harm to families suffering from pregnancy complications,” Missoula-based maternal-fetal medicine specialist Tim Mitchell told the Beacon on Thursday.

In the weeks leading up to Election Day, Mitchell and Wilson helped lead a wave of opposition to LR-131 comprised of medical providers, parents, politicians and reproductive health organizations. “No on LR-131,” a campaign created by nonprofit group Compassion for Montana Families, garnered the support of over 800 Montana healthcare professionals, the ACLU of Montana, Planned Parenthood, and the Montana chapters of the American Academy of Pediatrics and the American College of Obstetrics and Gynecology.

Mitchell said he was proud of Montana’s medical community for their successful organizing and education efforts that helped dispel what many physicians saw as medically inaccurate and misguided legislation.

“I was not walking into the voting booth on Tuesday feeling confident,” Mitchell said. “There’s definitely widespread relief.”

While the bill would not have affected access to abortion, many have tied its fate to reproductive care in the state, which faces a tenuous future as Republicans in 2023 are set to control the Governor’s office and both chambers of the state legislature, where the GOP is projected to hold supermajorities for the first time since 1975.

Abortion is currently legal in Montana up until viability, which normally occurs around 24 to 26 weeks, and can be performed after viability if the life of the mother is in danger. A Yellowstone County District Court judge in October 2021 struck down three laws restricting abortion, which were found to be in violation of the state’s rights to privacy.

While many Republican candidates campaigned on promises to limit abortion, and the party won broadly, flipping some Democratic seats, the state’s rejection of the ballot measure may signal reluctance by Montana voters to support further abortion-related restrictions, which have been implemented in neighboring states, including Idaho, Wyoming, South Dakota and North Dakota.

While Flathead County voters elected Republican Ryan Zinke to the U.S. House of Representatives with 61% of the vote, only 53% of Flathead County voters supported LR-131. Similar breakdowns occurred in Lake, Ravalli, Sanders and Powell Counties.

In Regier’s own HD-4, where his reelection campaign garnered a decisive 76% of the vote, only 60% of voters cast a “Yes” ballot on LR-131.

Lee Banville, political analyst and director of the University of Montana School of Journalism, told the Beacon that Republican politicians may have put the measure on the ballot to increase election turnout, as Conservative voters have historically come out in large numbers to support anti-abortion legislation. However, the convoluted language of LR-131, an overarching aversion to government overreach in Montana, and the overturning of Roe v. Wade in June, he said, may have pushed the result of the referendum in an unexpected direction for Republicans.

“They put it on the ballot not really knowing what was coming,” Banville said.

Many national pundits on Election Day labeled the rejection of LR-131 part of a resounding rebuttal of abortion restrictions across the country. Aside from LR-131, voters in Kentucky, Vermont, Michigan and California on Tuesday elected to guard abortion rights, adopting abortion protections or rejecting abortion restrictions on the state level.

Banville, however, said that he thinks this analysis is incorrect, and that Republicans in the Montana Legislature will not “feel chastened at all by this vote,” when it comes to introducing further abortion restrictions. He called LR-131 a “peculiar piece of legislation” that may not be an accurate gauge of how voters would feel about a more traditional abortion ban, and may not factor into decisions made by Montana’s Republican legislators.

While celebrating the rejection of the ballot measure, Planned Parenthood Advocates of Montana President and CEO Martha Fuller expressed apprehension about the upcoming legislative session in a press release on Thursday.

“The fight to protect reproductive rights in Montana is far from over. Time and again, anti-abortion lawmakers have proven they will stop at nothing to score cheap political points and strip constituents of their basic freedoms,” she said. “Planned Parenthood Advocates of Montana will be on high alert during the upcoming legislative session and ready to fight back against new attacks on our bodies, lives, and futures.”

The full results of the vote on LR-131 can be found on the Montana Secretary of State’s website.