HELENA — A state senator on Monday introduced a bill that that would prohibit the abortion of an unborn child that can feel pain.
The legislation, from Sen. Keith Regier, R-Kalispell, says a doctor may not perform, induce or attempt an abortion on a fetus capable of feeling pain unless it is necessary to prevent a serious health risk to the mother. The bill defines a fetus as being able to feel pain at 20 weeks.
“The need for this bill is brought by the increased scientific evidence abortion is painful for the unborn,” Regier told the Public Health, Welfare, and Safety Committee, which took no action on the bill Monday. “We have all heard stories of babies delivered between 20-30 weeks of development. They survived because they had all the body parts needed, all the physical structures necessary to experience pain have developed.”
The U.S. Supreme Court has said a woman has the right to choose an abortion before a fetus is considered viable, generally at 21-23 weeks. The U.S. Ninth Circuit Court of Appeals recently struck down an Idaho law similar to Regier’s bill that banned abortions at 20 weeks, saying it categorically banned pre-viability abortions, according to a legal note attached to the bill.
Because the legislation “prohibits abortion entirely after a fetus is 20 or more weeks post-fertilization, the bill may raise potential conformity issues with the requirements of the United States Constitution and Montana Constitution,” the note said.
Regier responded by saying, “There are children that have survived after only 20 weeks of gestation, so when viability occurs comes into question. The unborn experiencing pain should be a compelling interest for the state.”
Performing an abortion that violated the bill would be a felony homicide.
The bill also allows for civil remedies to stop an abortion. Injunctive relief may be maintained by the woman who had the abortion, a spouse, parent, sibling, guardian or current or past doctor of the woman who had the abortion, a county attorney or the attorney general. It would be up to the court to determine if the woman's identity would remain private.
Those who testified in support of the Montana Pain-Capable Unborn Child Prevention Act said states can interject themselves into a woman’s pregnancy in the interest of protecting viable life. Opponents said it was a “dangerous” bill that violated a woman’s right to medical access and privacy.
Both sides were limited to 15 minutes of testimony Monday.
In support of the bill, Jeff Laszloffy, president of the Montana Family Foundation, said lawmakers should have an “honest debate.”
“If a child feels pain I just can’t believe there’s anybody here in this room that would intentionally inflict pain on a child and think that’s OK,” he said. “The debate needs to be around whether a child feels pain in utero. It’s incumbent upon the Legislature and the people at the state to make sure pain is not intentionally inflicted upon a child.”
In opposition, Jessica Peterson, NARAL Pro-Choice Montana, called the bill “another attempt to limit access to safe, legal abortion and a women’s ability to make her own health care choices."
Peterson told the committee that abortions after 21 weeks account for only 1.3 percent of all abortions and are often a medical necessity to protect the life of the mother.
She said the bill is “unethical, dangerous and further traumatizes women and families already facing complicated decisions.”
Earlier this session Sen. Albert Olszewski, R-Kalispell, introduced a bill to establish viability at 24 weeks and not allow abortion after that point. Olszewski's bill says if a women's life is at risk, a doctor would induce labor and do everything possible to support the fetus. A violation of that law would also be a felony. That bill has cleared the Senate and will be heard by the House Judiciary Committee on Tuesday.
