A state lawmaker is bringing Montana into a national debate about abortion with a bill he says would protect the state's "most vulnerable" but others call part of an "extreme agenda" to ban abortion across the country.
State Sen. Albert Olszewski, a Republican from Kalispell who is an orthopedic surgeon, is carrying the Montana Born-Alive Infant Protection Act.
"There is a national debate attempting to legitimize the intentional killing of a baby born alive if the medical provider and the parents deem or decide that it is necessary or should happen," Olszewski told the Senate Judiciary committee last week. He said his bill was Montana's answer to the debate of "legal infanticide."
Those opposed to the bill, which cleared the Senate last week on a 30-19 vote, say it is unnecessary and meant to spark outrage.
"This bill in my opinion is solely here for political purposes. It is another inflammatory bill intended to mislead the public, allowing the outrageous suggestion that Montana law does not protect infants that are born alive," Sen. Diane Sands, a Democrat from Missoula, said on the Senate floor Friday.
It’s one of several abortion bills still moving through the process this legislative session. They include the Montana Pain-Capable Unborn Child Protection Act and a bill that would require patients to be offered an opportunity to have an ultrasound and hear a fetal heartbeat before an abortion.
Another bill to put a "personhood" constitutional amendment on the ballot in 2020 will have a vote in the Senate but is not expected to get the necessary two-thirds endorsement from the full Legislature.
Debate on these bills has been more hostile than in past sessions, with some Senate Democrats raising concerns about their security and the safety of reproductive health care workers. That came after a bill hearing in which a pastor said he had done everything to oppose abortion except "shoot an abortionist." Another Democrat walked out of the hearing on Olszewski’s bill after a proponent compared abortion to the “Third Reich.” And in the House, Democrats objected when a Republican lawmaker compared abortion to Native Americans committing "genocide."
High-profile abortion legislation in other states, both failed and passed, is driving much of the conversation in Montana.
A guest opinion co-authored by Olszewski and Republican U.S. Sen. Steve Daines that ran in newspapers around the state cites a failed bill in Virginia. It would have removed barriers to third trimester abortions when a patient's life or health is at risk.
In a radio interview, Northam said third-trimester abortions are "done in cases where there may be severe deformities. There may be a fetus that's nonviable. So in this particular example, 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."
Northam said his comments were not about infanticide. But the antiabortion movement has cited his message as part of a broader opposition to abortion rights.
Olszewski said Northam is one of the main reasons he brought the Montana Born-Alive Infant Protection Act, and supporters repeatedly cited the Virginia governor's words in a hearing on the Montana bill in February.
The guest opinion also referenced the Born-Alive Abortion Survivors Protection Act, which failed in the U.S. Senate in February. Democrats voted against the bill, saying it's redundant because a federal law is already in place, the Born-Alive Infants Protection Act of 2002.
Still, President Donald Trump seized the opportunity, in a tweet, to call Democrats position "so extreme that they don’t mind executing babies AFTER birth."
Sands countered the false assertion that Democrats opposition to Olszewski's bill here in Montana means they support infanticide.
"The (claims of the) opponent and people who testified ... are untrue. They are offensive and they're dangerous," Sands said, adding that she requested extra security in the Senate chambers during a vote last week.
"Any implication that any senator who votes against this bill supports the neglect of a newborn infant under any conditions or supports infanticide is offensive and dangerous. And those claims have been made."
Montana law already makes it a felony if a person purposely, knowingly or negligently causes the death of a premature infant born alive, if the infant is viable. The law applies to premature infants that are the subject of an abortion and born alive and viable.
"Both the federal law and Montana's existing law provide protection for any infant born alive," Sands said.
Olszewski's act would strike the existing law and replace it with what he calls "21st century updates."
State law is not enough, Olszewski said, because it isn't clear about extending protections to all live births, regardless of if the birth is premature because of an abortion. He also said his bill would clarify protections to children who are born with disabilities.
The federal law, in his mind, only defines that an infant is a person. Olszewski said his proposed act would give "complete full protections and procedures on required resuscitation" for infants born alive.
Olszewski said his bill is not meant to prohibit or create obstacles to abortion, but opponents say it will achieve that if it becomes law.
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"The true agenda behind (the bill) is obvious — it is another attempt to shut down health centers, put abortion out of reach in Montana, and criminalize women and doctors," says a letter submitted to the Senate Judiciary committee. It is signed by Planned Parenthood Advocates of Montana, ACLU of Montana, NARAL Pro-Choice Montana, the Montana Coalition Against Domestic and Sexual Violence and Montana Women Vote.
The bill is “little more than part of a national strategy to ban abortion throughout the country,” the letter continues.
Elizabeth Nash, the senior state issues manager at the nonpartisan Guttmacher Institute in Washington, D.C., said in an interview last week the proposed act is “really just providing more detail.”
“You already have a law in place. It doesn’t seem to me that there was an event or something that happened that was showing the law wasn’t being implemented appropriately,” Nash said. “This was more of a reaction to the political fallout around New York and Virginia than it is to a specific situation in Montana.”
Nash said health care providers are cognizant of and follow state and federal law, and are additionally bound by medical ethics. She said acts like what Montana is considering can create a negative characterization of abortion providers.
The most recent report from the Centers for Disease Control and Prevention shows fewer than 1 percent of abortions occur after 24 weeks of pregnancy. Abortions after that point are mostly done when the patient's life is endangered or the fetus will not survive.
Parents can decide on the level of care provided the infant, which may include comfort care instead of resuscitation efforts. Bills like Olszewski’s would, opponents say, force doctors to provide unwanted, sometimes extreme, medical care against parents' wishes.
Sands said on the Senate floor she contacted law enforcement around the state and could not find information of reports, claims or charges of violations to Montana's existing law protecting infants.
Olszewski told the Senate Judiciary committee he had knowledge of things happening in Montana that would violate provisions in his bill. He did not tell the committee what those were, citing confidentiality concerns in a small state like Montana.
Nash said the bill is “incredibly similar” to model legislation from Americans United for Life, a national antiabortion group. Olszewksi said he reached out to the Montana Family Foundation to get help drafting the bill, and was directed to AUL, though his legislation has language specific to Montana. Olszewski said he wanted to use legislation that had been crafted to avoid defeat on possible legal challenges.
"We’ve been seeing variations on this type of legislation in seven other states, and getting legislative attention in Arkansas and Kentucky," Nash said. "In general it seems that these bills are a response to the headway abortion rights supporters made in New York and the debate in Virginia."
New York passed a bill earlier this year that loosened restrictions to third-trimester abortions when the patients' health or life is at risk.
Montana Gov. Steve Bullock has vetoed nearly all the abortion-related bills that have made it to his desk since taking office in 2013. That year he allowed two bills to become law, both related to parental consent for minors seeking an abortion.
Olszewski acknowledges his bill would likely be vetoed. Others the Legislature may pass this session are probably headed to the same end.
Nash said over the last decade, both progressives and conservatives have introduced bills in state legislatures nationwide that will not become law but are designed to start or change conversations around abortion. Carrying abortion-related legislation can also be a response to a request from a group in the state or a tool to show voters where a lawmaker stand on an issue.
This year is the first legislative session since Trump added two new justices to the U.S. Supreme Court that some believe create a path for abortion opponents to overturn the Roe v. Wade decision that legalized abortion across the country in 1973.
"What we're seeing is a number of states are passing six-week abortion bans," Nash said. "Those are aimed at starting that court case that could overturn Roe."
In more liberal states, there are efforts to put laws in place that would protect abortion access, Nash said.
"That's on both sides. Conservative legislatures are looking to adopt more restrictions, but progressive legislatures in New York want to set a legal standard for abortion. Everybody's looking to the court."
The tone around abortion debates in Montana is also more hostile this session. In debate on Olszewski's bill, opponents submitted a letter instead of testifying because of those concerns.
"The 2019 legislative session has seen some of the most extreme proposals, behavior and threats by opponents of abortion that we and our allies have ever witnessed," the letter reads. " ... We refuse to subject ourselves, our supporters and our allies to a bill hearing on the most radical of proposals that would only further inflame the violent rhetoric on the other side."
Olszewski said in a press conference Tuesday he was "greatly saddened" about the hostile environment and repeated his concern about violent comments directed at bill opponents in a speech on the Senate floor.
"I will do everything that I can that the opposition will be there so that we can have a full debate, a dialogue about the civic discourse of our country is important," Olszewski said. "And when someone is stifled by the threat of violence, that cannot happen and I will condemn anyone who threatens them."