Columbia Falls Legislator Withdraws Mandatory Fetal Death Certificate Proposal After Extensive Pushback

After an outpouring of opposition during a House Judiciary Committee meeting on Jan. 16, Rep. Braxton Mitchell, R-Columbia Falls, will amend House Bill 213 to remove a statute mandating the filing of fetal death certificates for all failed pregnancies in the state of Montana. The bill will provide for an optional, commemorative certificate of nonviable birth for parents who have experienced a failed pregnancy, following similar legislation passed in other states.

If passed, parents in Montana will be able to request a certificate of nonviable birth from the state within 60 days of a nonviable birth, which would then become available as a public record.

In the Jan. 16 hearing, Rep. Mitchell described the certificate as “an option for parents to name their child and honor their memory, so they’re not just a footnote in their family history,” and cited comparable laws passed in Iowa, Nebraska and Florida. 

While some commenters at the hearing praised the bill as a way for grieving families to find closure, public testimony was dominated by opposition to Section 3 of the bill text, an amendment to Section 50-15-403 of Montana Code Annotated (MCA) that would have included a mandatory reporting statute for all failed pregnancies in the state of Montana — a statute that Mitchell has since removed.

Under Section 3, the state would have required a fetal death certificate be filed for a failed pregnancy at any stage, rather than the current requirement that a death certificate only be filed for a nonviable fetus that weighs at least 350 grams at death, or has reached 20 weeks gestation. Unlike the optional certificate in Section 1, the statute in Section 3 would have mandated parents and their medical providers submit extensive information to the state about their pregnancy, such as a cause of death, which many providers described as an unreasonable task.

Tim Mitchell, a maternal-fetal medicine specialist who offered testimony at the hearing, said that a large number of pregnancies fail before 20 weeks, and that it is usually difficult, if not impossible, to discern a cause of death for a fetus that is so early in its development.

“Loss is so common in that first part of the pregnancy,” he told the Beacon on Jan. 18, adding that many people experience multiple failed pregnancies, and that mandating reporting for every nonviable birth would add administrative red tape, as well as increased trauma for families.

It is estimated that between 10% and 20% of pregnancies end in miscarriage.

“It would be incredibly hard to write a death certificate for every miscarriage,” Tondy Baumgartner, obstetrics and gynecology specialist, told the committee on Jan. 16. “In addition, to confirm that a woman actually passed fetal tissue, it would probably have to go to pathology, which would add an extra cost and burden to that family. I’m wondering, who would have to cover that cost?”

During the hearing, Rep. Mitchell expressed to the committee that creating a mandatory reporting statute for failed pregnancies was not his intention, and that he would consider removing it. Mitchell told the Beacon on Wednesday that he would amend the bill in committee on Thursday, and provided an updated draft that removed the changes to Section 3.

During the hearing, opponents linked House Bill 213 with LR-131, a failed 2022 ballot measure that would have imposed criminal penalties on medical providers who did not “take necessary actions to preserve the life of a born-alive infant,” even during the birth of a nonviable fetus. While proponents characterized LR-131 as a measure designed to protect infants from medical neglect, doctors across Montana, who mounted a successful campaign to defeat the referendum, said it would constrict care options and parental rights.

Though not directly related to abortion, pro-choice activists and medical providers have drawn connections between both legislative proposals and the battle over abortion in the state.

“We must pull back the curtain on the motivation behind this proposed legislation. Like LR-131, it is a deliberate attempt to advance an argument for fetal personhood,” Loreen Pettit, neonatologist at Bozeman Health Deaconess Hospital, said in the hearing. “Using the grief, suffering and confusion of parents to leverage this position is not only manipulative, but also inappropriate.”

The House Judiciary Committee will meet Jan. 19 at 8 a.m. More information on the 68^th Legislature can be found at leg.mt.gov.