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Montana GOP Attacks ‘Roe’ With Dubious Fetal Viability ‘Science’

Nicole Knight

Anti-choice legislators in Montana are pushing a measure targeting the fetal viability standard enshrined in decades of legal precedent.

GOP-backed legislation in Montana would set fetal viability at 24 weeks of gestation and outlaw abortion care at that point, with no exceptions.

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.

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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argue that Roe v. Wade, the landmark U.S. Supreme Court decision that legalized abortion nationwide, was based on an outdated standard of viability.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.

SK Rossi, advocacy and policy director with the American Civil Liberties Union of Montana, called the legislation unconstitutional, noting that the courts have upheld the right to abortion care after viability in cases of life endangerment.

The Montana GOP legislation “forces people into much more dangerous options to terminate the pregnancy,” Rossi told KBZK.

The law defines fetal viability to mean a fetus is capable of prolonged life outside the womb, including with medical assistance, explained Jessica Mason Pieklo, Rewire’s vice president of law and courts.

“Without deciding a specific point of viability, the courts have largely deferred to medical consensus that fetal viability occurs sometime between the 26th and 28th week of a pregnancy,” she noted. “The courts also note that point varies with each individual pregnancy and that doctors are the ones to make that specific determination.”

The state senate committee could act on the bill this week, as KBZK reported.

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.

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