Explanation of the ‘Newborn Protection Act’

MISSULA — On the ballot this election cycle is Legislative Referendum 131, a measure that advocates say is intended to prevent infanticide and opponents say would force doctors to take actions that are not medically appropriate.

The referendum is described on the ballot as the Law on the Protection of Live Born Children. If approved by voters, the new law would establish penalties for health care providers who fail to provide necessary medical care and treatment to save the lives of infants born alive, including infants born alive after abortion. If a healthcare professional were to violate the law, the maximum penalty would be a fine of $50,000 and up to 20 years in prison.

Causing the death of a premature baby is already illegal under federal and state law, said Tim Mitchell, a maternal-fetal medicine specialist in Missoula. Mitchell cares for people experiencing high-risk pregnancies. He had to tell patients with wanted pregnancies that their baby might not survive long after birth. While some patients choose to terminate the pregnancy because it would be too difficult to endure knowing the baby will die shortly after birth, Mitchell says some families want to continue the pregnancy.

“To deliver a live baby,” Mitchell said. “To be able to hold them and say, ‘Goodbye.'”

During a September rally in Helena to demonstrate opposition to LR-131, Jenn Banna, of Missoula, said she experienced the scenario described by Mitchell. While she was pregnant with her daughter Ana, doctors told her that the child’s brain had not fully developed. Anna would not survive long after giving birth. But Banna decided to continue the pregnancy.

“The opportunity to hum and sing to her would not have been possible if she had been taken away immediately,” Banna said at the rally. “Anna Louise would have died in another room, had I not been deprived of the opportunity to comfort and hold her during her short life.”

A proponent of the measure, Montana state Rep. Lola Sheldon-Galloway, R-Great Falls, said she believes opponents of the referendum have twisted the intent of the law. She said she hoped the bill would not be used to prosecute doctors who gave their patients time with a dying baby.

“If a person is willing to carry a pregnancy knowing that the baby might not survive,” Sheldon-Galloway said. “No one in their right mind will take away their chance for those previous moments together.”

If the referendum passes, Sheldon-Galloway said that may be something that should be changed next session. She encouraged people to participate more during the session, to ensure MPs “get it right to start with”.

Montana state Rep. Matt Regier, R-Kalispell, has introduced a bill that would put the bill before voters during the 2021 legislative session. While he acknowledged that there is a state law to protect premature babies, Regier said it doesn’t go far enough. He also took issue with the way the law allows exceptions for sustainability.

“We need to make that very clear here in Montana,” Regier said. “Lifetime protection is available.”

If passed, Mitchell said it’s important to note that some doctors have said they would consider leaving Montana because of the bill.