GOP propsosed legislation in Montana would set fetal viability at 24 weeks of gestation and outlaw abortion care at that point, with no exceptions- even if the life of the mother is at risk.
The only choices available to a person whose life was at risk after that time would be vaginal delivery or a cesarean section, under SB 282, which was heard on Monday in the state’s Senate Judiciary Committee. Doctors could face felony charges for performing an abortion at 24 weeks’ gestation, meaning 24 weeks after a person’s last menstrual period.
Anti-choice legislators in at least 19 states have used the medically dubious concept of fetal pain to ban abortion at 20 weeks, but proponents of this Montana bill have added a new twist: They aim to attack the fetal viability standard enshrined in decades of legal precedent.
The right to abortion “subsequent to viability” is guaranteed by the U.S. Constitution and the Montana Constitution. An independent legal analysis questioned the legislation’s constitutionality.
The legislation’s backers argue that Roe v. Wade, the landmark U.S. Supreme Court decision that legalized abortion nationwide, was based on an outdated standard of viability.
“Forty-four years ago, viability of a baby was vaguely defined. A lot has changed in 44 years,” the Rev. Terry Forke, president of a Lutheran church in Billings, Montana, told lawmakers. “Today medical science has demonstrated a remarkable improvement in the viability rates. At the very least, it’s time for Montana to align itself with the science of the day. From God’s perspective, 100 percent of aborted babies are viable.”
Even with medical advances, one in four neonates born between 20 and 29 weeks does not survive. A 2015 study of 22,000 extremely premature infants published in the New England Journal of Medicine found that an earlier gestational age at birth was linked to “a worse outcome,” meaning death. The mean gestational age of infants who died was 24 weeks.
The U.S. National Vital Statistics Reports on infant mortality don’t track infants born at exactly 24 weeks, but the most recent data from 2013 on infant mortality indicates that less than 2 percent of live births occur at or before 32 weeks’ gestation.
The author of the legislation, state Sen. Albert Olszewski (R-Kalispell), sponsored a 2015 bill to require doctors to anesthetize fetuses prior to abortion. The state’s Democratic governor vetoed the measure.