2023-08-11

Voters Rejected an Anti-Abortion Measure. State GOP Lawmakers Passed a Similar Bill Anyway.

In the months following the Supreme Court’s 2022 decision that gave states the power to ban abortion, voters in a half-dozen states spoke on the issue — and, in every case, chose to uphold abortion rights or reject an attempt to restrict them.

Most recently, Ohio voters on Aug. 8 rejected a Republican-led effort to make it more difficult to change that state’s constitution, which would have set a higher bar for an abortion rights ballot initiative this fall.

But the will of the electorate didn’t stop Republican lawmakers in one state, Montana, from passing a version of the anti-abortion proposal that voters rejected only months earlier. When Republican Gov. Greg Gianforte signed the bill in May, Montana became the only state to pass a law that directly contravened voters who said “no” to an anti-abortion ballot measure in 2022.

Last fall, 53% of Montana voters rejected a referendum that said care could not be denied to any infant or fetus that draws breath, has a heartbeat, or has voluntary muscle movement after an attempted abortion or any other delivery. Under the proposal, any health care provider violating the law would be committing a felony punishable by up to 20 years in prison.

But while Montana voters rejected the so-called “born-alive” measure, they also expanded big GOP majorities in the state legislature, which promptly passed a similar bill. The bill is different than the ballot initiative in two significant respects: It reduces, but doesn’t eliminate, the criminal penalties against providers; and it adds a provision that if a newborn is likely to die soon, the parents can choose to deny care and hold their child, providing “comfort care,” before it dies.

Lauren Wilson, a Missoula physician and president of the Montana Chapter of the American Academy of Pediatrics, said she’s glad the new language allowing parents to refuse medical care in those rare situations was included.

“We can live with the bill,” she said. “I don’t think it will land anyone in jail.”

However, she added, the bill, like the ballot initiative before it, is unnecessary and won’t change how health professionals practice medicine.

“This law is made to perpetuate a false narrative that there are babies out there who are going without care. It doesn’t happen,” Wilson said.

While Montana may be the only state where GOP lawmakers overruled voters on a specific abortion question this year, Republicans lawmakers in Kansas and Kentucky haven’t exactly backed off after being dealt ballot-measure defeats.

Last year, voters in those two states rejected constitutional amendments that would have said their respective constitutions contained no protection for abortion rights. Meanwhile, voters in California, Michigan, and Vermont approved referendums to constitutionally protect abortion access in those states.

The GOP-led legislatures in Kentucky and Kansas passed more anti-abortion bills this year, including, in Kansas, a “born-alive” bill similar to Montana’s.

Republican lawmakers in Kentucky introduced another constitutional amendment, to be placed on the ballot again, saying no constitutional right to abortion exists in the state. But this time, the proposal failed to make it out of the legislature.

The new Montana law passed on almost strictly party-line votes, with all but three of the legislature’s 102 Republicans voting for it and all 48 Democrats against.

Democratic state Sen. Andrea Olsen of Missoula said when it comes to abortion, Republican lawmakers clearly are ignoring a huge swath of their constituents.

“It’s our job to listen to the voters, their concerns, and solve problems, not use government as a tool for a political agenda of a few,” she said.

Supporters of the measure, sponsored by Rep. Kerri Seekins-Crowe, a Billings Republican, said some infants do survive attempted abortions. While such circumstances are extremely rare, those infants deserve protection in the law, they say.

The new law says any health care professional who “knowingly” denies care to a newborn commits a felony, although the maximum penalty was reduced from 20 years in prison to five years.

It also says violators can be subject to civil fines of at least $5,000, imposed by the state Department of Justice, and civil malpractice suits, with punitive damages.

The Montana referendum passed in 44 of the state’s 56 counties, most of which include districts represented by GOP lawmakers. It failed statewide on the strength of big opposing margins from the urban centers of Missoula, Bozeman, and Helena.

Jeff Laszloffy, the president of the Montana Family Foundation, which opposes abortion, testified in February that the lack of language protecting parents who refuse care to their dying infant is what caused the referendum to “barely fail” at the ballot box.

That allowed opponents to create the narrative “that children would be ripped from their parents’ arms that had no chance of survival anyway, and parents would not be able to spend those final moments with their child,” he said.

“This bill makes clear that that will never be the case,” Laszloffy added.

Clinics that provide abortions in Montana have said the new law doesn’t affect them, because infants would not be born during any procedure they perform. So far, no abortion rights group or individuals have stepped forward to challenge the law in court.

The conservative nonprofit Americans United for Life, which created model legislation similar to the Montana referendum, said 35 states have passed some form of “born-alive” infant protection.

The Montana Supreme Court upheld abortion access in 1999 under the state constitution’s right to privacy and reaffirmed that ruling earlier this year. The state’s high court is expected to rule on a challenge to three abortion restrictions passed by Republicans during Montana’s 2021 legislative session.

KFF Health News is a national newsroom that produces in-depth journalism about health issues and is one of the core operating programs at KFF—an independent source of health policy research, polling, and journalism. Learn more about KFF.

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