Vothers in Montana rejected a ballot measure that would have declared an embryo or fetus a legal entity entitled to medical care if “born alive” at any stage of development, including after attempted abortions.
It was Montana one of the five states with the abortion-related measures on Tuesday and was the only one left unresolved. In all five cases, voters moved to protect abortion access — a victory for abortion rights advocates, even in the conservative states of Kentucky and Montana.
The Montana referendum, which about 53 percent of voters opposed, would have imposed “criminal penalties on health care providers who fail to act to preserve the lives of such babies, including babies born during attempted abortions.” Health care providers who violated the law would face a fine of up to $50,000 and 20 years in prison.
Supporters of the referendum argued that it would protect babies. But critics said it would limit the type of care doctors could provide and was unnecessary given that infanticide is already illegal under state law. They also warned that it would “perpetuate a false anti-abortion narrative.”
Experts note that abortions after fetal viability are very rare. Only 1 percent of abortions in the U.S. occur at or after 21 weeks of pregnancy, according to an analysis by the Kaiser Family Foundation. And CDC data shows that the rare cases of a fetus surviving an abortion and then dying often involve severe fetal health conditions or pregnancy complications.
“I think the voters may also have thought it was a solution in search of a problem,” said Mary Ziegler, a law professor at UC Davis and an expert on abortion policy.
“This is another signal that voters in conservative states, who are certainly not necessarily open to voting for Democratic candidates, are open to voting for abortion access when the issue is presented to them directly.”
Montana has a Republican governor and a Republican-controlled state legislature, but other states do tighter restrictions on abortion. The state prohibits abortions at fetal viability, which is about 24 to 26 weeks of pregnancy. By comparison, the neighboring states of Idaho and South Dakota have some of the most restrictive abortion laws in the country, banning abortion entirely with limited exceptions.
The ballot measure was opposed by several medical groups, including the Montana branch of the American Academy of Pediatrics, which said it would “criminalize doctors, nurses and health care workers for providing compassionate care to infants,” interfering with challenging decisions by parents , and difficult care for newborns with fatal health conditions.
The “born alive” argument has been the focus of abortion advocates for decades. (A 2002 federal law, the Protection of Live Born Babies Act, already classifies every baby as a person.) And Ziegler sees Montana’s referendum more as a “rhetorical tool” aimed at stigmatizing abortion than an attempt to directly limit access to abortions.
But the referendum results may be a signal to abortion advocates that pursuing ballot measures may not be an effective strategy for progress.
Voters in more conservative states may still be reluctant to write abortion rights into the state constitution — as voters in Vermont, Michigan and California did this week. But this result suggests they are also unwilling to support as many restrictions as abortion advocates had hoped.
“I think that really tells you that most voters — even in red states and certainly in purple and blue states — are not happy with what’s happening with abortion rights,” Ziegler says. “To some extent, the Republicans overplayed it.”
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