Montana’s LR-131 on the verge of failure

Montana’s LR-131 was teetering on the verge of failure Wednesday morning after early ballot returns showed the Montana Born-Alive Infant Protection Act garnering more opposition than support in Tuesday’s general election.

The Montana secretary of state’s office reported 52% of voters opposed LR-131 and 48% voted in favor, with ballot counts still trickling in around noon the day after polls closed.

But the 19,461-vote margin against the referendum, with just under 70% of precincts reporting results, has not merited a decisive call from the Associated Press and other national media outlets tracking state-level elections.

Voters approved another ballot question, C-48, on Tuesday, agreeing to amend the state Constitution to explicitly include electronic data and communications in the provision protecting residents from unreasonable search and seizure. That measure passed overwhelmingly, with 82% of Montanans voting yes and 18% voting no.

The outcome of LR-131, Montana’s only ballot initiative that explicitly mentions abortion, is less clear, having created confusion among voters and debate between supporters and critics in the months leading up to the election.

Proponents explain the Republican-backed measure as way to guarantee that born-alive infants are considered legal persons entitled to medical care, no matter their health prognoses or how they’re delivered, including via abortion. Nationally, born-alive initiatives and laws have been pushed by anti-abortion coalitions that say without such legal protections infants who survive abortions would be left to die.

Opponents of LR-131 say those arguments are false and misleading, in part because infanticide is already illegal in Montana. Rather, medical experts who have organized against the referendum, including the Montana Medical Association, Montana Hospital Association, Montana Nurses Association and the state chapter of the American Academy of Pediatrics, say it would criminalize health care providers who withhold resuscitative care to newborns with fatal conditions at the request of grieving parents.

Republican lawmakers who voted in favor of the measure have recently disputed those characterizations, saying that hospice care for dying infants would be allowed under the statute’s language.

“It states health care providers must take ‘medically appropriate and reasonable actions to preserve the life and health of a born-alive infant.’ Hospice care is appropriate and it is disingenuous of the opposition to misconstrue and belittle the hospice line of health care,” said Rep. Matt Regier, R-Kalispell, who sponsored the bill to create the referendum, in a recent op-ed. “Medically appropriate and reasonable health care is the treatment you and I expect when we visit our medical provider. Why would we not afford this same care to infants?”

The text of the bill to put LR-131 on the ballot says it pertains to infants delivered “at any stage of development” by “natural or induced labor, cesarean section, induced abortion, or another method.” The bill defines “born alive” as an infant that “breathes, has a beating heart, or has definite movement of voluntary muscles,” and says physicians and other staff who do not provide life-sustaining treatment to newborns would face felony charges punishable by up to 20 years in prison and a $50,000 fine.

The Montana Medical Association has said that if the measure is adopted the organization has not ruled out challenging it in court.

The reproductive rights and medical coalition have kicked their opposition to the measure into high gear in the last two months of the campaign, including text and phone banking sessions staffed by health care workers directly appealing to voters. But many opponents, including doctors and nurses who spoke against LR-131 at an October press conference, said they feared the text of the referendum would be confusing to voters and contribute to its passage.

But on Election Night, more votes stacked up against the referendum than those in favor of it, in part because of tight margins in typically conservative counties like Ravalli, Lake, Cascade and Flathead. While many rural counties overwhelmingly voted for LR-131, counties that include some of Montana’s largest cities were poised to reject the measure, such as Missoula, Gallatin, Yellowstone, and Lewis and Clark.

As of Wednesday midday, Flathead, Gallatin, Missoula and Yellowstone had not finished tallying the results from all precincts, according to the secretary of state’s website. Tabulations are expected to continue throughout the day.

Mara Silvers is a reporter for the Montana Free Press, a nonprofit newsroom based in Helena, and can be reached at msilvers@montanafreepress.org. To read the article as originally published, click here.