Liberal Media Defeated Montana Anti-Infanticide Measure With Outrageous Lies

Opinion   |   Wesley Smith   |   Nov 11, 2022   |   2:05PM   |   Helena, Montana

Montana Referendum 131 would have required that babies born alive — including after an attempted abortion — be treated as legal persons and treated in a “medically appropriate” manner. Alas, it was just rejected by voters.

That’s awful, but I think there is a reason the measure failed, and it is in the drafting of the text. From Referendum 131:

Born-alive infant protection. (1) A born-alive infant, including an infant born in the course of an abortion, must be treated as a legal person under the laws of the state, with the same rights to medically appropriate and reasonable care and treatment.

That fine, decent, and moral. But this second clause became the focused issue in the opposition campaign (my emphasis):

(2) A health care provider who is present at the time a born-alive infant is born shall take all medically appropriate and reasonable actions to preserve the life and health of the infant

Here’s the problem. Sometimes preserving life of an infant is not “appropriate” medical treatment. Sometimes, palliative care and/or allowing nature to take its course is the most reasonable and humane approach.

Yes, I am aware that the clause, “take all medically appropriate and reasonable actions,” should have assuaged any fears doctors might have had of being prosecuted for not trying keep a dying baby alive — no matter the futility or suffering thereby caused. But that wording allowed media and opponents to fear monger.

For example, KTVH’s description of Referendum 131 omitted the “medically appropriate and reasonable” clause (my emphasis):

The referendum is described on ballots as the Born Alive Infant Protection Act. If passed by voters, the new law would establish penalties for health care providers if they did not provide necessary medical care and treatment to preserve the life of infants born alive, including infants born alive after an abortion. If a health care provider violated the act, the maximum punishment would be a $50,000 fine and up to 20 years in prison.

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That description would make it appear that the law would require preserving the life in every case. I wouldn’t have voted for that.

NPR’s description of the measure was even more egregiously inaccurate:

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. . . .

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.

Those falsehoods opened the door to blatant fear mongering. Indeed, one opponent quoted in the KTVH report claimed the measure would prevent allowing a mother to snuggle with her baby who would not survive:

During a September rally in Helena meant to show opposition to LR-131, Jenn Banna of Missoula said she experienced the scenario described by Mitchell. While pregnant with her daughter Anna, doctors told her the child’s brain hadn’t fully developed. Anna would not survive for long after delivery. But Banna opted to continue the pregnancy.

“The opportunity to snuggle and sing to her would not have been possible if she had been taken away immediately,” Banna said at the rally. “Anna Louise would have died in a different room, without me, robbing me of the opportunity of comforting and holding her during her short life.”

Nothing in Referendum 131 would have prevented that dying baby from being cuddled by her mother.

What’s the lesson for pro-lifers? Your proposals will be shamelessly misdescribed, distorted, and lied about by opponents and in the media. But also, that fact of political life requires careful and defensive drafting of ballot measures. For example, the first clause quoted above would have been sufficient to fulfill the desired purpose of the measure because it would have covered all circumstances of a crisis birth. Emphasizing “preserving life and health” in the second clause was superfluous and opened the door to the kind of blatant media mendacity that I suspect caused a majority of Montanans to vote no. Note: Wesley J. Smith, J.D., is a special consultant to the Center for Bioethics and Culture and a bioethics attorney who blogs at Human Exeptionalism.