Born-alive referendum voted down

Legislative Referendum 131 saw 231,739 votes cast against compared to 209,218 for it for a margin of 53% to 47%.

 The referendum 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 $50,000 fine.

The Montana Medical Association, which opposed the measure, applauded the results Thursday morning. 

“The Montana Medical Association is pleased that the practice of medicine will be left to doctors and patients," the organization said in a statement. "The measure would have criminalized the work of Montana providers and posed very real negative impacts on families experiencing tragic pregnancy complications. These are tragedies, not crimes.”

The referendum was put on the ballot by Republican lawmakers in the 2021 legislative session after they abandoned a path to enact the policy through passing a law and instead put the constitutional amendment to Montana voters. Supporters of the legislation say it is necessary in order to protect infants.

In an interview with Montana PBS earlier this year, state Rep. Matt Regier, a Republican from Kalispell who carried the bill that put the referendum on the ballot, said he felt any measures possible to preserve an infant life were necessary.

"I think it looks a lot better than death. I think that to me, that is so straightforward of would you rather be alive and in an intensive care unit or would you rather be dead? Once again, we're coming back to protecting innocent life," Regier told Montana PBS.

Opponents have said the law is unnecessary because there's already both state and federal legislation that protects infants, in both the cases of natural birth and an attempted abortion.

"Infants born alive are already protected by clear state and federal legislation," said Dr. William Gallea, an emergency medicine physician and previous president of the Montana Medical Association, at a press conference in Helena late last month. “ … LR-131 is a blatant intrusion of the government into the private, sacred relationship between our patients and their physician.”

Proponents of the referendum have also cited statements from politicians in other states as part of the reason they passed a born-alive referendum here. That includes 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.”

State Sen. Tom McGillvray, a Republican from Billings, said Montana’s referendum “simply is seeking to nip that in the bud in this state so that would never happen.”

“I don’t believe that it’s happening in this state, but oftentimes you draft legislation to prevent something from happening,” McGillvray said.

Opponents have raised concerns that the referendum does not allow for compassionate care in the case of an infant who was born alive but will not survive because of fatal medical issues.

“The truth is that this initiative does not in any way make clear that parents can decline futile care,” said Dr. Lauren Wilson, a pediatric hospitalist in Missoula and president of the Montana Chapter of the American Academy of Pediatrics. “It does not make clear that the mandate to act to preserve life and health won't apply if a baby has a life-limiting condition and could never survive long-term.”