Montana Voters Are Facing a Deceptive Abortion Ballot Measure

Montanans will vote on the Born Alive Infant Protection Act in November, premised on the idea that some babies "survive" abortions.

By Kylie Cheung | October 27, 2022 | 9:37pm

Abortion Politics

Montana Voters Are Facing a Deceptive Abortion Ballot Measure

Lea Bossler, who birthed a nonviable infant at 25 weeks, speaks against the LR-131 ballot measure at a rally (left); Montana state Rep. Matt Regier (right) is an architect of the ballot measure. Photo:WCMU Public Radio/Twitter, Montana Legislature

Last year, Montana resident Lea Bossler experienced pregnancy complications that meant she had to give birth at 25 weeks. Her newborn daughter was diagnosed with fetal inflammatory response syndrome, and when Bossler and her husband learned she wouldn’t survive, they chose to say goodbye.

An initiative on the Montana ballot next month would take that choice away from couples like Bossler and her husband. LR-131 (aka the “Born Alive Infant Protection Act”) would target and criminalize doctors for not providing “life-saving care” to the newborn—even when no amount of action from doctors could realistically keep the baby alive, and families just want to be with their dying infant in its final moments.

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Her child’s “death under LR-131 would have been extremely traumatic for everyone, rather than beautiful and peaceful,” Bossler told NPR earlier this week.

The measure is the product of “years of anti-abortion fearmongering,” Hillary-Anne Crosby, an organizer working on the campaign to oppose the measure, told Jezebel. Under the initiative, doctors who fail to provide life-saving medical care to any infants born after “natural or induced labor, cesarean section, induced abortion, or another method” would face up to 20 years in prison and $50,000 in fines. Republican state Rep. Matt Regier, one of the architects of the measure, has claimed its purpose is to protect infant “survivors” of abortion. But the actual outcome would be harm to families like Bossler’s. Scenarios about hypothetical babies “living” through abortions—like what Regier describes when promoting the ballot measure—simply don’t happen.

“Montanans are being told they’re voting on a measure that’s just going to ‘protect infants born as a result of an abortion,’ but what they’re actually voting on is forcing care on nonviable infants…when families otherwise would have received spiritual comfort and palliative care,” Crosby said.

Families suffering from the loss of a child shouldn’t be subject to criminalization, surveillance, and state investigation on top of their pain, Crosby added.

Abortions later in pregnancy are highly rare, and overwhelmingly stem from emergency pregnancy complications and fetal conditions, or delays as a result of barriers and extreme abortion restrictions (though, as Jezebel has long maintained, there are no right or wrong reasons to have an abortion). According to the Kaiser Family Foundation, only about 1% of abortions in the U.S. occur after 21 weeks. One study found that out of 5,000 infants born before 27 weeks, none of the infants born before 22 weeks survived.

No external polling indicates how Montanans might vote on LR-131, but medical groups and experts have expressed concern that its deceptive language and framing could sway the election. Last week, the Society for Maternal-Fetal Medicine and the Montana Section of the American College of Obstetrics and Gynecology sent a letter to Montana’s secretary of state, taking specific issue with state-distributed voter guides that include false claims from the pro-LR-131 side that the measure “will have no effect on families when labor begins spontaneously.” Experts say this is plainly untrue.

“They’re using the title of this referendum and the intentionally difficult language around this referendum to make it about abortion,” Dr. Lauren Wilson, a doctor based in Missoula, told the Independent Record earlier this month. “But when it comes down to it, it denies parents the choice of how to respond to a pregnancy tragedy, and essentially makes comfort care for a newborn with a terminal medical condition illegal.”

Aileen Gleizer, a board member of Montana’s abortion fund, told Jezebel that when Roe v. Wade fell in June, they were inundated with questions from confused, desperate callers. LR-131’s misguided language about abortion has prompted even more confused calls. “We get calls from clients sometimes asking if they would retroactively be punished,” Gleizer said. “That level of fear and anxiety is part of the dangerous nature of this measure, which [backers are framing] as being about abortion and scaring people about having abortions.”

The ballot measure makes the state among the first in the nation to directly vote on abortion rights post-Roe, months after Kansas resoundingly defeated an anti-abortion measure in August. In Montana, abortion remains legal, as the state’s constitution enshrines rights to privacy and bodily autonomy, although the state already bans abortion “at or after viability.”

Existing Montana law already prohibits infanticide, and a 2002 federal law grants infants that are born alive the same rights as all people. The only purpose LR-131 serves is to further equate abortion with murder, and doctors and abortion providers—who routinely face violence and death threats—with murderers.