Opponents of "born-alive infant" measure raise concerns about impacts

LR-131 Opponents
Posted at 6:43 PM, Sep 21, 2022

HELENA — As the nationwide debate over abortion continues, Montana voters will have their say this fall on Legislative Referendum 131, a measure that would require health care providers to perform lifesaving care on infants born alive – including after an abortion.

However, opponents of LR-131 are raising concerns about how it could affect families and doctors in other situations. At the Montana State Capitol Wednesday, a committee called Compassion for Montana Families launched its campaign against the measure.

“What this initiative will do, it’s going to prevent families from being able to hold a dying loved one and being able to say goodbye in the way they want to say goodbye,” said Dr. Tim Mitchell, a maternal-fetal medicine specialist from Missoula.

In 2021, Republicans in the Montana Legislature voted to put LR-131 on the ballot, calling it a needed step to protect newly born infants. If passed, it would declare that any infant born breathing or with a beating heart, whether after an abortion or through any other method, must be treated as a “legal person.” It would require health care providers to “take all medically appropriate and reasonable actions to preserve the life and health of the infant,” and it would establish penalties of up to $50,000 in fines and up to 20 years in prison for those who fail to comply.

Mitchell said the measure’s language could mean doctors would feel they had to attempt procedures like intubation on infants who wouldn’t be able to survive long-term – regardless of a family’s wishes.

“In situations where families want that type of resuscitative effort, the care team is going to provide that type of care,” he said. “There’s not situations where care’s being withheld when the families desire care. What this initiative is going to do is force physicians to provide care when the family understands that that care’s not going to help and they would rather have a more peaceful setting.”

During Wednesday’s event, parents shared that they had gone through this type of experience. Jenn Banna, of Missoula, said, while pregnant with her daughter Anna, doctors told her the child’s brain had not fully developed and she wouldn’t be able to survive for long. Banna said she opted to continue the pregnancy with that knowledge.

“I felt that for my own grieving process, I wanted to be able to feel my baby in my arms,” she said.

Banna said, after her daughter was born, her pediatrician attempted to start her breathing, but pulled back to let the parents hold her, saying he felt he was “getting in the way.”

“The opportunity to snuggle and sing to her would not have been possible if she had been taken away immediately,” Banna said. “Anna Louise would have died in a different room, without me, robbing me of the opportunity of comforting and holding her during her short life. It was my fondest memory, and the only experience I had with her while she was alive.”

Mitchell said these types of cases are not uncommon.

“Pregnancies are unpredictable, and pregnancies can end in very unexpected ways,” he said. “This is not something we discuss much in our society. People who go through this process oftentimes grieve in private.”

State Rep. Matt Regier, R-Kalispell, sponsored the bill that became LR-131 in the Legislature. He told MTN Wednesday that he believed the cases cited by opponents wouldn’t be affected by the law, because of the language on “medically appropriate and reasonable actions.”

“Are you intentionally trying to kill the baby or not?” he said. “I know the opponents want to make it a gray area, but it’s not.”

Regier said, if medical policies already call for infants born alive to be cared for, he didn’t see reason for concern if it was codified into law.

LR-131 was one of a series of abortion-related measures endorsed by the 2021 Legislature’s Republican majority. Three signed into law by Gov. Greg Gianforte are currently on hold while a court considers their constitutionality.

The Legislature also considered a similar “born-alive” measure as a standard bill, but Republicans voted instead to move it forward as a referendum that would appear on the ballot. Opponents accused them of making that choice as a way to drive voter turnout. Regier said only that he felt some issues were important enough that they should be considered by voters.

“I think it’s bigger than just the Legislature to weigh in on,” he said. “I think it should go to the people.”

LR-131 is one of two statewide ballot measures that will be in the November general election. Absentee ballots will begin going out to voters next month.