Bill to limit abortion after 24 weeks, set felony penalty, gets first hearing

Doctor said less than 1% of abortions take place after 20 weeks

By: - February 23, 2023 8:54 pm

The Montana State Capitol in Helena (Photo by Darrell Ehrlick of the Daily Montanan).

Rep. Lola Sheldon-Galloway, R- Great Falls, is trying again to set time parameters around when a pregnancy can be terminated in Montana. 

Sheldon-Galloway is sponsoring House Bill 575, that would define fetal viability at 24 weeks, with wiggle room to be considered earlier. At the hearing, a doctor noted less than 1% of abortions take place after 20 weeks.

The bill also said a violation would constitute a felony charge. 

Sheldon-Galloway sponsored similar legislation in the 2021 session that would ban abortions after 20 weeks, which was challenged in court after being signed into law and was temporarily enjoined in August.

Sheldon-Galloway looked to tweak the 2021 bill when drafting this one. 

“We are changing this concept to focus on ‘viability’ and making abortions after 25 weeks illegal,” Sheldon-Galloway said in an email when drafting the bill. “Whereas, premature births at 25 weeks are successful births and viable.”

Abortions are protected in Montana under the 1999 state Supreme Court decision Armstrong v. State until the fetus is viable, meaning it could survive outside the womb.

“I hope on my tombstone it says ‘I fought for the unborn,’” Sheldon-Galloway said in the hearing on the bill Thursday. 

Sheldon-Galloway said this bill provides clarity for what viable means and how it must be documented by abortion providers. She said abortion providers must use “best available science” and “survival data” to determine viability. 

Dr. Timothy Mitchell, an OB/GYN who testified in opposition to the bill, said that less than 1% of abortions take place after 21 weeks in the U.S. He said it’s easy to think viability starts at the specific gestational age, but the reality is outcomes depend on variables like newborn weight, underlying medical conditions, pregnancy complications, as well as gestational age

After 21 weeks, he said most parents are hoping for viability.

“These are very desired pregnancies where the patient has been given the news of a severe birth defect or developed a complication where there’s a high risk to the mother or they’re at risk of imminent delivery,” he said.

Mitchell said the chances for survival outside the womb at 21 or 22 weeks is 15% or less, and an intact survival with no significant long-term neurodevelopmental issues could be less than 5%. 

Shannon Weldon of Fort Benton, testifying in opposition, spoke to the high expense of a hospital stay for a premature baby for families, saying that just one night in a hospital cost her $40,000. 

Jeff Laszloffy with the Montana Family Foundation, testified as one of six proponents of the bill saying it’s a legislative solution to the “faulty decision” in Armstrong.

“We’re hopeful that one day the Montana Supreme Court will correct the mistake that is the Armstrong decision. Until that day, this tool will ensure that a determination of viability is made before any abortion is conducted,” he said. “And that’s the best that we can do for now.” 

Quinn Leighton, director of external affairs for Planned Parenthood, said this bill was a solution in search of a problem, a common refrain heard from opponents of anti-abortion legislation. 

“This bill, on the other hand, limits providers’ options when assessing each person’s unique situations and threatens felony charges against medical providers,” they said. 

Leighton said that another problem is that many of the anti-abortion bills passed in the last three decades were enjoined in the judicial system and are unenforceable. 

“Several parts of this code included in the bill draft fall into this category,” they said. 

There were over twice as many opponents to the bill compared to proponents. Opponents included Montana Women Vote, the League of Women Voters and the ACLU of Montana. 

“Not only is there no room for the government in the exam room, there is most definitely no room or time for the government to intervene in high risk pregnancies,” said Robin Morrison, with the League of Women Voters. 

The House Judiciary Committee took executive action on two abortion bills on Thursday. One bill to require prior-authorization for Medicaid patients seeking abortions passed along party lines 13-6 with Republican support. 

Another bill establishing a civil penalty for people who interfere with someone’s ability to access reproductive or endocrine healthcare failed on party lines, 13-6 with Republicans against it. 

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Nicole Girten
Nicole Girten

Nicole Girten is a reporter for the Daily Montanan. She previously worked at the Great Falls Tribune as a government watchdog reporter. She holds a degree from Florida State University and a Master of Science from the Medill School of Journalism at Northwestern University.