MONTANA — Abortion is on the ballot in Montana this year. Voters are being asked to approve a law declaring that an embryo or fetus is a legal person with a right to medical care if born prematurely or survives an attempted abortion.

LR-131, a referendum for the Born Alive Infant Protection Act, would require doctors provide resuscitative care to infants born at any stage of development, or face penalties.

Eighteen states already have so-called born alive laws on the books — all of them put there by state legislatures. Montana's would be the first to be passed by legislative referendum, according to the National Conference of State Legislatures.

"A lot of people speculate, including myself, that the reason it was put on the ballot, was to gin up the base and get them out to vote on this very divisive issue and one that people are very passionate about," says Sally Mauk, a political analyst who's reported on the Montana legislature for more than 30 years.

Mauk says that the proposed law was put on the ballot before the U.S. Supreme Court ended the federal protection for abortions in the Dobbs case in June.

"I think what's happening now in the wake of the Dobbs decision and Roe being overturned," Mauk says "is that LR-131 could have actually the opposite effect. And besides getting people out who are passionately opposed to legal abortion, people passionately in favor of legal abortion will see this issue on the ballot and turn out to vote against it — and therefore maybe vote also against Republican candidates."

Impacts on families suffering pregnancy complications

Proponents of the act say it's morally necessary to protect innocent life.

Opponents say it gives the state too much power to decide what's medically reasonable, which could end up harming families suffering pregnancy complications.

In January, 2021 Marcus Cahoon and Lea Bossler's daughter Maesyn was born at just 25 weeks. She had a severe medical condition called fetal inflammatory response syndrome doctors didn't think they could fix.

"Marcus and I were given the choice to take Maesyn outside for her final moments," Lea Bossler says. "Being ex-wildland firefighters and Montanans, we had no hesitation in taking that opportunity."

Bossler told her story at an event in Helena in September opposing the proposed law, LR-131.

"[Maesyn's] death under LR-131 would have been extremely traumatic for everyone, rather than beautiful and peaceful," Bossler says. "Legally forced repeated chest compressions and epi shots would have done nothing but overdosed, bruised and broken her already dying body."

The Born Alive Infant Protection Act would require medical providers give life-saving care to infants born at any stage of development: Born as a result of "natural or induced labor, cesarean section, induced abortion, or another method," the legislation reads.

If the referendum LR-131 passes, medical professionals who "fail to take medically appropriate and reasonable actions" could face up to $50,000 in fines and 20 years in prison.

Montana law currently protects against infanticide. Individuals can face penalties if, the law states, "The person purposely, knowingly, or negligently causes the death of a premature infant born alive, if the infant is viable."

In 2002 a federal law granted infants born alive the same rights as persons, but did not mandate care or include penalties. Eighteen states have passed laws similar to what's on the ballot in Montana requiring physicians provide care or face criminal penalties.

Republican state Rep. Matt Regier from Kalispell introduced Montana's born alive referendum, which passed along party lines during the 2021 legislative session.

Regier says the intent is to protect innocent life.

"It's a simple bill of are we going to protect infants that are born alive for any reason, not just a botched abortion, but any infant that's born alive," he says. "Do they deserve that same medical services that you and I are afforded, what's medically appropriate and reasonable?"

Data on "botched abortions"

What Regier calls "botched abortions" are rare: According to analysis by the Kaiser Family Foundation, 1% of abortions in the U.S. occur after 21 weeks around the time of viability.

CDC data of infant deaths over a 12-year period show that of 143 live births following an induced abortion, most cases involved fetal anomalies or maternal complications. And nearly all — 96% — survived less than a day.

Dr. Tim Mitchell, an OB-GYN in Missoula who guides women through high risk pregnancies, says the premise of LR-131 is not based in reality of how health care is provided. He says who the bill will really impact is families suffering pregnancy complications.

"The clinical situations where we are dealing with an infant born alive is in the setting of a rapid, pre-viable preterm birth or in the setting of these lethal fetal anomalies where we know interventions are not going to have a change in the outcome," Mitchell says.

Last month Mitchell spoke at an event at the Capitol in Helena organized by the opposition group Compassion for Montana Families. He says if the referendum passes, physicians will be forced to make decisions out of fear of prison time and fines rather than following the families wishes for how they want to spend final moments with their infant.

"LR-131 will force physicians to attempt to place a breathing tube in a baby whose lungs have not yet developed or is so small that the tube cannot fit," he says.

Regier says the opposition is disingenuous in saying the referendum would require doctors to take a terminally ill infant from its family and try to resuscitate it. He points to language on the ballot that reads "a healthcare provider shall take medically appropriate and reasonable actions to preserve the life and health of a born alive infant."

"To me that just defies common sense, I mean, of what is medically appropriate and reasonable, and if you're going to say trying to revive a terminally ill baby— that's not medically reasonable," he says. "That seems pretty straightforward."

Mitchell, the OB-GYN, says the way the bill is written leaves too much gray area.

"Who is going to be the ones deciding what reasonable care is?" he says. "Is it going to be the state attorney general who is going to potentially look into cases, because anybody can file a complaint against a physician or providers who are involved in care of some of these very tragic circumstances?"

Voters will decide if the state should get involved in decisions made in the delivery room, absentee ballots have already been mailed, the deadline to vote is Nov. 8.