Montana House Judiciary hears bill for certificates in ‘nonviable births’

A bill that would end up requiring a death certificate for miscarriages drew criticism that it was part of “an anti-choice” agenda, but sponsor Rep. Braxton Mitchell, R-Columbia Falls, said he was willing to amend the most controversial part of the legislation.

At a House Judiciary Committee meeting Monday, Mitchell said he intended House Bill 213 to offer families the option of a “certificate of nonviable birth” if it would help provide them closure. For example, he said they could put a name on the certificate.

“This has been passed without controversy in other states,” Mitchell said.

However, opponents, including physicians, pointed out that bills passed in other states didn’t include a section that would require death certificates be filed for fetuses that haven’t reached 20 weeks. They argued HB 213 would breach privacy, place burdens on grieving families, create unreliable data, and advance an argument for “fetal personhood.” 

“We’re concerned about any invasion of privacy during what would be a traumatic time,” said Robin Turner, on behalf of the ACLU of Montana. Turner also noted the ACLU is concerned the information collected could be used to prosecute parents who have lost a child.

The legislature has a Republican supermajority this session, and it is considering several bills related to abortion, which is generally legal in Montana.

At 9 a.m. Tuesday, the Senate Judiciary Committee is scheduled to hear a separate bill to define Montana’s privacy right “to clarify” it provides “no right to abortion.”

Such language would contradict a 1999 Montana Supreme Court decision that said privacy encompasses medical care, including abortion.

“The right of individual privacy as referenced in the Montana constitution, the Montana Code Annotated, or the Administrative Rules of Montana does not create, and may not be construed as creating or recognizing, a right to abortion or to governmental funding of abortion,” reads the bill, sponsored by Sen. Keith Regier, R-Kalispell.

Monday, however, Mitchell characterized the death certificate bill as one that would help grieving families. He said it would allow them to name their child, and he characterized its support as bipartisan.

In addition to Mitchell, more than 50 other lawmakers are co-sponsors, including Democrats Rep. Jonathan Windy Boy of Box Elder and Rep. Dave Fern of Whitefish. 

Rep. Zack Wirth, R-Wolf Creek, said he supported the bill in part because of conversations he’s had with family members. He said families would like a historical record, and it also would be helpful for them to know if there’s a propensity in their family for miscarriages.

“I stand in favor,” Wirth said.

Loreen Pettit, a neonatal physician, said an anti-choice agenda was being presented under the guise of compassionate certificates. She said the certificates may provide validation and comfort. 

However, she characterized the legislation as “a deliberate attempt to advance an argument for fetal personhood.”

“Using the grief, suffering and confusion of parents to leverage this position is not only manipulative, but also inappropriate,” Pettit said.

Jean Branscum, with the Montana Medical Association, said her group appreciated the fact the bill acknowledged a miscarriage is an unfortunate event and attempts to recognize it as such.

However, she said the association, with some 1,400 members, opposed the bill as written, specifically because of the language related to fetal death certificates.

Branscum said she looked forward to working with the sponsor to improve it, and Mitchell said he already had some amendments in the works. 

Timothy Mitchell, a physician in obstetrics and gynecology, said he had deep concern about the language the bill proposed to strike related to a fetus.

As written, the bill would delete the parameters a fetus “weighs at least 350 grams at death or, if the weight is unknown, has reached 20 completed weeks of gestation.” 

He said taking out that language suggests all pregnancies that end early would require a death certificate, but 15% to 30% of all pregnancies end in miscarriage. Plus, he said before 20 weeks, it’s almost impossible to determine the reason for a miscarriage. 

Dr. Mitchell said potentially thousands more death certificates would need to be filed with the state, but the data created would not be valid. Plus, he said it would create a burden on families who are already grieving.

However, he said he agreed the first section of the bill would “provide a degree of closure for those who have lost their child in the middle of their pregnancy.” 

Through a rule, and not legislation, the Montana Department of Public Health and Human Services has proposed changing requirements for abortions funded through Medicaid. 

Generally, it has proposed that patients be required to show the procedure is “medically necessary” and provide detailed personal medical history. The agency said doing so would ensure taxpayers don’t foot the bill for unnecessary abortions. 

Public comment on the rule change ends Jan. 20. An agency spokesperson said the department will decide how to proceed after the close of public comment and “review of the comments,” but it did not provide a timeframe.

The House Judiciary Committee did not immediately take action on HB213 following the hearing Monday.