Legal Note finds House Speaker’s abortion bill may be unconstitutional
‘Born Alive’ measure comes back in the form of a bill sponsored by Billings representative
Speaker of the House Matt Regier, R-Kalispell. (Blair Miller/The Daily Montanan)
A legal note attached to an abortion bill sponsored by House Speaker Matt Regier, R-Kalispell, says it may raise a “constitutional conformity issue,” while a different bill resurrected the language from the “Born Alive” ballot issue which failed with Montana voters at the polls last fall.
Regier’s House Bill 721 would ban “dismemberment abortion,” defined in the bill as inserting “grasping instruments” and removing “disarticulated fetal parts from a living unborn human being.” The bill outlines fetal viability, the cutoff for legal abortion healthcare, at 12 weeks gestation.
The penalty would include up to a $50,000 fine and as many as five years jail time for healthcare professionals who perform this surgery outside of an emergency.
Abortion is currently protected under the state Supreme Court opinion, Armstrong vs. State, which found abortion is covered under the state’s right to privacy.
The legal notes concludes that given Montana’s broad right to privacy, HB 721 may raise a “constitutional conformity issue” because it infringes on a woman’s right to seek and obtain a pre-viability abortion and conflicts with precedent.
Regier said during the hearing on the bill Monday that HB 721 does not to stop a woman from attaining an abortion using other methods, such as induced labor, abortion pills and nutrition deficit.
“The choice before you is one about a procedure,” he said to the House Judiciary Committee. “Are we as a state going to continue to allow the tearing apart of living baby as one acceptable method of abortion?”
Proponents included the Montana Family Foundation and about a dozen others. Opponents included abortion providers Planned Parenthood of Montana and Blue Mountain Clinic, and the ACLU of Montana, among others.
Robyn Morrison with the League of Women Voters said surgical abortion is the safest termination procedure after 13 weeks and results in the fewest complications. But proponents said it was “unbelievable” that the state had to come forward with this legislation and supported an effort to effectively ban surgical abortion in the state.
Another bill heard by the same committee Monday would resurrect LR-131, the “Born Alive” ballot initiative that failed last fall, that would have purportedly required doctors to save any infant born alive after a late-term abortion.
Rep. Kerri Seekins-Crowe, R- Billings, sponsored House Bill 625, which would require providing medical care to infants born from an induced labor.
The bill would make it a felony with up to five years of prison time for health care providers who do not comply, with a suspension of their medical license for a year, a civil fine minimum of $5,000 for each violation and a mandatory reporting clause for known violations to the Department of Justice.
Unlike LR-131, the bill would allow parents or guardians to turn down medical treatment under certain circumstances when a baby is not expected to survive.
This change would give parents the ability to say goodbye to children on their own terms, a major critique of the LR-131 ballot initiative.
To qualify to turn down medical care, it must be determined that treatment:
- is not necessary to save the life of the infant;
- has a potential risk to the infant’s life or health that outweighs the potential benefit to the infant from the treatment or care; or
- will do no more than temporarily prolong the act of dying when death is imminent.
Jeff Laszloffy with the Montana Family Foundation said the bill “barely failed” at the ballot box.
“The reason that it failed was basically 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,” Laszloffy said. “This bill makes clear that that will never be the case. And that removes the main argument for voting against LR 131.”
Healthcare workers and organizations said the measure would lead to a “mass exodus” of medical professionals in the state. Last fall, 52.5% voted against the measure.
Proponents included pro-life organization Americans United for Life and legal advocacy group Alliance Defending Freedom Montana.
Opponents included the ACLU of Montana, Planned Parenthood of Montana and Blue Mountain Clinic.
Quinn Leighton with Planned Parenthood said there’s not a one-size-fits-all patient circumstance.
“Every patient is different, and this bill would place a penalty on providers simply for doing their job,” they said.
Julia Maxon with Montana Woman Vote said it’s clear following the vote last fall that Montanans don’t support this type of legislation.
“Infanticide is already illegal, murder is already illegal,” she said.
The idea that infants are killed following a failed abortion is a lie intended to stigmatize abortion and demonize patients and providers, Maxon said.
The bill has 30 co-sponsors, including six members of the House Judiciary Committee, and House Speaker Regier.
According to a report on cumulative web and phone messages from the public, Regier’s HB 721 had eight proponents and 52 opponents. Seekins-Crowe’s HB 625 had four proponents and 36 opponents, as of Monday morning.
The committee didn’t take immediate action on either bill.
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