In Jenn Banna’s family, she and her husband sing the lullaby “You Are My Sunshine” to their children when they’re babies. The western Montana couple had the chance to do that with Anna Louise during her short life and worries others in their situation wouldn’t have the chance if a referendum put on the November ballot by GOP lawmakers is passed by voters.
Legislative Referendum 131 is the so-called Born-Alive Infant Protection Act. Its language says that “infants born alive, including infants born alive after an abortion, are legal persons.” It would require “health care providers to take necessary actions to preserve the life of a born-alive infant” and comes with penalties of up to 20 years in jail and a $10,000 fine.
While backers of the proposal say it will protect infants, Dr. Tim Mitchell, a Missoula doctor who specializes in maternal-fetal medicine and often treats families making incredibly difficult decisions in tragic situations, says it is something else entirely.
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“LR-131 is a piece of propaganda, part of a false narrative created by those who are against individuals and families who want to make health care decisions without interference from the state,” Mitchell said at a press conference at the state Capitol in Helena on Wednesday. “The outcomes (that) this initiative claims to exist simply do not happen. This initiative for Montana families are suffering from some of the most tragic outcomes that one can experience during pregnancy.”
In an interview last week, Mitchell said the referendum, if passed, would force doctors to intervene in citations where no amount of action is going to change the outcome for the family.
That would include situations where there’s no chance a fetus could survive outside the womb, such as when kidneys or a nervous system does not develop, or labor starting at 16 weeks, when there is not enough development for survival.
“This is going to force physicians to intervene in those cases instead of … the family being able to hold this baby and let this baby know that they’re loved,” Mitchell said. “The medical team is going to have to be providing chest compressions, put breathing tubes into the airways that are too small to be able to even accept those tubes.
“It’s really cruel to put families who are in such a tragic situation into even more, (to) just make the situation even worse by having to provide these things not because it’s the best medical care but because we’re legally obligated to do it under threat of being jailed for up to 20 years or a $10,000 fine.”
Former state Sen. Al Olszewski, an orthopedic surgeon in Kalispell, said in an interview Wednesday that the intent of the referendum is not aimed at families dealing with fetuses with fatal anomalies. The Republican lawmaker brought a similar bill in 2019, though to enact the policy outright and not put it to voters. That bill was vetoed by former Democratic Gov. Steve Bullock.
Republican state Rep. Matt Regier, of Kalispell, carried the referendum bill last year. He did not return a message Wednesday seeking comment.
Like many proponents of the 2021 legislation that created the referendum, Olszewski said it was necessary because of comments made by former Virginia Gov. Ralph Northam in 2019 on a bill in that state that would have changed laws around abortions performed late in pregnancies.
During a radio interview, Northam said in referencing abortions in the third trimester of pregnancy “where there may be severe deformities. There may be a fetus that’s non-viable” … “If a mother is in labor, I can tell you exactly what would happen. The infant would be delivered. The infant would be kept comfortable. The infant would be resuscitated if that’s what the mother and the family desired, and then a discussion would ensue between the physicians and the mother.”
Those comments were taken out of context by some who said Northam was saying he would allow for infanticide.
To Olszewski, he said Northam’s comments “introduced to the nation the idea of infanticide can now be considered post-birth abortion,” necessitating the legislative referendum.
Olszewski acknowledged Montana already has laws that stipulate the protection of an infant that survives an abortion, he said Northam introduced a “new legal concept” of “post-birth abortion.”
“Because now in America and in Montana we have the concept of post-birth abortion, we now have to state in Montana that all children born in Montana automatically receive personhood rights,” Olszewski said.
But Samantha Berg, the manager of state advocacy for the Society for Maternal-Fetal Medicine, said the language of LR-131 is not about infant health and safety.
“There are laws and policies to protect infants, to advance infant health, to make sure infants are treated equally and get the care they and their families need,” Berg said in an interview last week. “Make no mistake about it, this is not about infants. This is about pregnant patients and controlling their ability to make the decisions they would be making with their health care providers.”
Mitchell said that while supporters of the referendum paint a picture of people having abortions in unwanted pregnancies in the final trimester, in reality the law would affect families who learn that their fetus has unexpected severe anomalies that are not compatible with life or the pregnant person is at risk of dying.
“It’s based off propaganda and a false narrative,” Mitchell said. “The fact that it even exists is creating an idea that we see pregnancies in a way where the initiative is describing it is just not true.”
Megan Condra, a spokesperson for Community Medical Center, said while much of the discussion on the referendum is about abortions, the way the ballot language is written it could also include induced labor or Cesarean deliveries.
Mitchell said the government should not be inserted into family decisions made at incredibly difficult times.
“The state has no business directing this kind of complex health care, and I hope the voters of Montana understand the implications of this initiative. The proponents of this bill believe that this is a black and white issue. They have not been in the room when this life-changing news is given,” Mitchell said. “They don't have the right to tell Montana families how their loved ones will spend their final and only moments on Earth.”
Banna said her daughter was born with a beating heart but their physician told the family she’d only live a few minutes.
“My husband and I leaned in close to our daughter and we sang our song to her while her heart slowly stopped beating. Her grandmother and her aunt then took turns holding her. The opportunity to snuggle and sing to her would not have been possible if she had been taken away,” 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 … Our family was able to create our own experience because there was no government interference.”
Lea Bossler, a Missoula woman whose daughter died 115 days after being born prematurely, said during the Wednesday press conference that at one point baby Maesyn pulled out her ventilation tube.
“I will never shake the shits, sounds or feelings of multiple re-intubation attempts,” Bossler said.
The day Maesyn died, Bossler and her fiancé were able to take her outside, free of medical interventions, and give her the experience of feeling the sun on her face, something Bossler said was the greatest thing she was able to do to honor her daughter’s spirit.
In a state where it’s difficult to get specialized care during pregnancies, Mitchell said that the passage of LR-131 could make access even more challenging.
“How are we going to offer care for these families? Are we going to recommend that we should transfer these families out of state so that they don’t have to go through this process of having to have a medical team intervene when everybody in the room knows this is not the right thing to do?” Mitchell asked. “It is scary to think that me providing the standard of care to families in the state could potentially land me in jail or my colleagues in jail for decades.”
There are only about nine maternal-fetal physicians in the state, Mitchell said.
“At the end of the day if we start to see physicians being criminalized and prosecuted for providing standard of care medical treatment, it’s going to make you think twice about practicing in this state,” Mitchell said.
Olszewski said he thought there would be a rule-making process to implement the law that he said could clarify legislative intent. He also anticipated that if LR-131 is passed by voters, it would end up in court, where legislative sponsors would have to make their intent clear. He also said he hoped for some form of public comment period for input.
Referendum vs. passing a law
Following the U.S. Supreme Court’s Dobbs decision in which justices said the U.S. Constitution does not protect the right to an abortion, states are engaged in their own debates over access.
While in Kansas recently voters overwhelming rejected ballot language that would have amended that state’s Constitution to say it did not guarantee the right to an abortion, LR-131 in Montana is not posing the same question of access. Still, Olszewski said Republicans wanted voters to decide.
Back in 2019, Olszewski’s own bill to create a born-alive law passed a GOP-majority Legislature, only to get vetoed by a Democratic governor. And though there was another attempt to pass the policy into law in 2021, Republicans decided to go the referendum route and put the question to voters.
Hillary-Anne Crosby, the campaign coordinator for Compassion for Montana Families that is advocating against LR-131, said in an interview last week that Republican state lawmakers had every opportunity to pass a born-alive bill last session but instead choose to put the referendum on the ballot to energize the party’s base.
“This lets it drag out and drag Montana families’ absolutely worst memories of their worst days through the mud to get this pushed just so they could drive (people) to the polls,” Crosby said in an interview last week.
Olszewski said that Republicans wanted voters to decide.
“Yes, in 2021 it could go through a Republican-dominated Senate and House and go to a Republican governor. It could have been signed in the first week of the legislative session, but this issue is so important that it was put in front of the people as the highest form of democracy to decide,” Olszewski said.
For Mitchell, though, he’s concerned the language could be confusing to voters, with a disastrous outcome.
“This law is going to impact Montana families who have very desired pregnancies who have been given some of the most devastating news you can receive,” Mitchell said.