Montana May Save Anti-Abortion Movement From Total Defeat

Anti-abortion advocates will go to great lengths to link abortion to alleged infanticide. Photo: Chandan Khanna/AFP via Getty Images

Without question, 2022 has been the greatest year in the history of the anti-abortion movement, with its interim goal of reversing Roe v. Wade and abolishing any federal constitutional right to choose abortion accomplished in one fell swoop. Now, thanks to its alliance with the Republican Party, the movement has been feasting on a variety of enacted and proposed abortion bans in states across the country and eyeing a federal ban and perhaps constitutional fetal-“personhood” provisions.

But from a purely political point of view, things have been going steadily downhill for the forced-birth lobby since the Supreme Court handed down Dobbs. In August, voters in bright-red Kansas decisively defeated a ballot measure aimed at abolishing any state constitutional right to abortion. Republican politicians, especially those running for Congress, have been backpedaling madly from past commitments to specific draconian abortion bans. An effort parallel to the doomed Kansas anti-abortion measure in bright-red Kentucky is looking shaky. Conversely, ballot measures solidifying state constitutional abortion rights are certain to pass in California and Vermont, and recent polling shows a Michigan abortion-rights ballot measure leading by better than two to one.

But the anti-abortion movement probably won’t get skunked on Election Day thanks to a peculiar narrow ballot measure in Montana called “Medical Care Requirements for Born-Alive Infants.” The statute, which the state legislature passed in 2021 and now requires voter approval, reflects a pre-Dobbs landscape in which GOP state politicians tried to undermine abortion rights by focusing on lurid-sounding marginal scenarios since they were prevented from a frontal assault on abortion. But the measure is both confusing and deceptive, as this description from Kaiser Health News explains:

[It] could impose criminal penalties of up to 20 years in prison and up to a $50,000 fine on any health care worker who doesn’t try to save a “born-alive infant.” That term is defined as a legal person who breathes, has a heartbeat, or has voluntary muscle movement after an abortion or delivery.

The measure would require health care providers to “take medically appropriate and reasonable actions” to keep the fetus or infant alive, but it doesn’t define or give examples of such actions. The health care workers liable under the initiative would be doctors and nurses but also any “individual who may be asked to participate in any way in a health care service or procedure.”

The legislation is also highly redundant since a 2002 federal law signed by President George W. Bush and motivated by the Kermit Gosnell illegal-abortion scandal already criminalizes inducing births and then killing the infant, as do many state homicide statutes. The medical-treatment requirement theoretically adds to the federal statute at the cost of potentially criminalizing palliative care for a terminally ill infant, which is one reason medical professionals in Montana and elsewhere strongly oppose the measure, as the Montana Free Press reported:

Speaking to reporters in the Capitol Rotunda on Thursday, members of the Montana Medical Association, Montana Hospital Association, Montana Nurses Association and the state chapter of the American Academy of Pediatrics said the referendum would criminalize doctors and medical staff who provide palliative care to newborns with fatal prognoses, even when parents ask to hold their babies during their final moments instead of asking doctors to try to sustain their infants’ life as long as possible …

Supporters championed the referendum as a protective measure for infants born alive after an abortion, a mobilizing concept among national anti-abortion advocates. But medical researchers and fact-checkers show those experiences are highly uncommon and usually involve pregnancies that are terminated because of medical complications or severe fetal abnormalities. In a 12-year period of data reviewed by the Centers for Disease Control and Prevention, 143 infants were reported to live briefly after an “induced termination,” though 96% did not survive longer than 24 hours.  

Like much of the anti-abortion movement’s crusade against rare late-term abortions that are legal only in cases when the life or health of the mother is in danger, the Montana ballot measure is a cynical effort to mobilize conservative voters and bamboozle others who get to the polls and read ballot language protecting “born-alive infants” and think, Of course! But it may help a few Republican candidates and keep the movement from being completely skunked on November 8 ballot measures.

The big prizes opponents of legalized abortion may very well win on November 8, however, are state legislative and gubernatorial gains, along with control of the U.S. House and Senate, which would totally kill any short-term prospects for federal abortion-rights legislation. They’re still very much on the wrong side of public opinion on the abortion issue, just as they have been nearly every minute since Roe v. Wade was first decided. But that’s cold comfort for those battling on a hundred fronts to protect or restore abortion rights.