Montana 'Born-Alive' bill to replace referendum advances in Senate

The bill would require health care providers to take "all medically appropriate and reasonable actions to preserve the life and health" of any child born as the result of natural, induced or cesarean labor or an abortion.

Thirty-one Republicans voted for the bill on a second reading, while 19 Democrats opposed. The bill faces a third reading before moving to the House.

Senate Bill 315 is identical to House Bill 167 that's already passed the Senate and been sent back to the House for approval of amendments, except HB 167 is a referendum that would put the issue to voters in 2022.

SB 315 carried by Sen. David Howard, R-Park City, would be effective immediately upon passage and signing by the governor. An amendment to Howard's bill put on by the Senate on Monday would void the referendum if Howard' bill passes. 

Emails from the governor's policy director to the bill's drafter, as well as Sen. Terry Gauthier, R-Helena; Rep. Matt Regier, R-Kalispell; and Senate President Mark Blasdel, R-Kalispell, show the governor's involvement in the bill. Regier is carrying the referendum bill and Gauthier had the placeholder bill that became SB 315.

"The governor is working with leadership and Sen. Gauthier to use (the placeholder) for a born-alive pro-life bill," wrote Glenn Oppel, policy director for Republican Gov. Greg Gianforte. "He's going to sign it over to Rep. Matt Regier. I'm cc'ing both legislators. Use Rep. Regier's born-alive bill for language — HB 167. The bill will get tagged as a priority by leadership."

During his State of the State speech in January, Gianforte said he backed the referendum bill and another bill to ban abortions after 20 weeks gestational age.

"I also urge the Legislature to send me the Born-Alive Infant Protection Act," Gianforte said in that speech. "These are necessary, compassionate measures where we should be able to find common ground and I will sign both of them to law."

However, since Regier's HB 167 is a referendum, Gianforte would not sign it as it goes to the voters. Oppel's email came a day after Gianforte's speech.

In a press conference last week when asked if he had a preference of Howard's bill, which Oppel spoke in support of in a committee hearing, or the referendum, Gianforte said he respected the legislative process.

"We're watching what goes on there," Gianforte said. "There's a lot of twists and turns in the Legislative process, so I try not to wade into all that."

There are several other bills advancing through this session to change access to abortion. House Bill 140 requires notification of the opportunity to have an ultrasound. House Bill 171 would require a woman to have what's called "informed consent" that includes warnings of death and other dangers at least 24 hours before a drug-induced, abortion. Those, in addition to House Bill 136 that would ban abortions after 20 weeks gestational age, are on their way to Gianforte's desk.

Montana first saw a "born-alive" bill in 2019 after the concept came into the spotlight over failed legislation in Virginia that year that would have removed barriers to third-trimester abortions when a patient's life or health is at risk.

At the time, that state's governor 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."

The anti-abortion movement seized on that message as part of a broader opposition to abortion rights and several "born-alive" bills have been introduced around the country since.

Democrats and others opposed to the bills have pointed out there are already protections in state and federal law for infants.