Nebraska advocates seeking to enshrine abortion rights in the state constitution chose language for a potential ballot initiative that would create a constitutional right to an abortion until a fetus is viable outside of the womb.
This push for viability language moves the local abortion debate beyond the appropriate number of weeks after which abortion should be banned and shifts it to a possible 2024 vote on whether it should be banned at a vague time later in a pregnancy.
The language also would keep abortion legal to protect the health and life of the mother. Nebraska law includes similar protections secured through legislative negotiations. An amendment would preserve them constitutionally.
Ashlei Spivey of Protect Our Rights, the Nebraska group pushing for the changes, said the language “is informed both by medical experts and where most Nebraskans are on this issue.” Spivey is executive director of I Be Black Girl. Protect Our Rights is hosting a campaign kickoff Thursday in Omaha.
“Unlike the state officials working to totally ban abortion, we’re elevating the voices and lived experiences of Nebraskans who believe that pregnant people should be able to access needed care with compassion and privacy, free from political interference. This amendment will ensure that these personal decisions stay with Nebraskans — not politicians,” she said.
Proponents of the constitutional change will need to gather more than 120,000 signatures from registered voters, or about 10%. They would also need signatures from at least 5% of registered voters in at least 38 of the state’s 93 counties.
Pushback on language as ‘extreme’
Local advocates for additional abortion restrictions, including the Nebraska Catholic Conference, Nebraska Right to Life and the Nebraska Family Alliance, have argued Nebraskans would not approve language allowing abortion to viability.
Each has described such pushes elsewhere as “extreme.” The three groups of abortion opponents issued a joint statement Wednesday.
“Under this extreme amendment, a girl who is not old enough to get her ears pierced or get a tattoo on her own will be able to obtain an abortion without a parent ever knowing,” said Karen Bowling, executive director of Nebraska Family Alliance. “This evisceration of parental rights will concern every mom and dad in Nebraska. Women and children deserve real compassionate care, not lies from the abortion industry.”
Polling on abortion in Nebraska has been mixed depending on who asks the question and phrasing, but a majority surveyed have supported keeping abortion legal. The inflection point often concerns how late into a pregnancy abortion is allowed.
Fetal viability standard vs. weeks
Defining fetal viability is difficult after years of improving medical care. However, most medical experts who have testified in other states about similar legal language have said a fetus becomes viable about 23 weeks into a pregnancy.
Nebraska was one of the first states to outlaw abortions 20 weeks after fertilization, which is 22 weeks gestation, while Roe v. Wade was law. Lawmakers tried to pass a ban last session after a required ultrasound detects embryonic cardiac activity, at about six weeks. It fell one vote short.
In the end, lawmakers passed a 12-week gestational age ban after combining it with legislation restricting some health care for trans minors. The new restrictions effectively ban abortion 9 to 10 weeks after fertilization, with some exceptions.
The Nebraska push to protect abortion is part of a national trend since Dobbs, even in red states. Ohio passed a similar amendment allowing abortion until viability. Kansas voters preserved constitutional language keeping abortion legal.
In other states that have put similar language on the ballot, these campaigns for and against abortion language often draw millions of dollars in outside spending.
Gov. Jim Pillen, during a press conference on a legislative appointment, said he would oppose the initiative with everything he has. He said Nebraskans would not embrace it.
He described the language as “very vague and open” and said he worries that doctors and patients might stretch the definition deeper into a pregnancy than people think.
“I was proud to sign that bill into law, and I will continue to fight to save as many babies’ lives as possible from abortion, including by working to defeat this initiative,” he said.
Several state senators, including advocates for abortion rights and opponents, said they had no immediate comment because they were trying to digest the proposed language.
Some said they needed to speak to staffers about whether the Legislature would have to define viability as a legal term if the changes were adopted. Others questioned how much the viability standard could vary from doctor to doctor.
Some quick reactions
State Sen. Joni Albrecht of Thurston, who proposed the cardiac ban, said she and other abortion opponents would work to let people know the downsides of the potential language.
She called on people to reject language that would allow “late-term abortion throughout pregnancy, eliminate health and safety standards” and put Nebraska’s parental notification law at risk.
State Sen. Jen Day of Omaha said she was “excited to hear that Nebraska voters will have an opportunity to join the other states who have passed similar measures since the Dobbs decision.”
“Nebraskans deserve better than the government interfering in their most intimate, life-altering healthcare decisions, and I look forward to a positive victory in protecting the privacy, the liberty, the health, and the lives of Nebraskans,” she said.
State Sen. Ben Hansen of Blair, who authored the 12-week gestation ban, said he thought Nebraskans had found a compromise with his law.
He said the bill “we passed last year was reasonable, popular among the people of Nebraska.”
Abortion rights advocates in Nebraska disagreed at the time, including Planned Parenthood Advocates of Nebraska’s Andi Curry Grubb. She and others have said the shorter ban put women’s health in peril, forcing women to seek reproductive care in other states.
Hansen and Albrecht stressed the exceptions for the life of the mother and rape and incest, and said what is happening with the petition effort in Nebraska is part of a broader national campaign.
“This is something they’ve done in other red states,” Hansen said. Of the potential amendment, he added, “They’re actually moving the goalposts farther than we had before, past 20 weeks.”
Dr. Emily Patel, a maternal fetal medicine specialist in Omaha, said the new language is quite similar to the state’s longtime ban that took effect 20 weeks after fertilization because it went into effect at 22 weeks gestation. Medical viability usually runs between 22 and 24 weeks, she said.
She said the amendment language would offer clarity to her and other doctors concerned by what some described as ambiguous language in the state’s new 12-week gestational age ban.
“It’s allowing patients and physicians to make decision about their medical care and about their pregnancies in the context of what’s going on in the pregnancy…,” Patel said of the possible amendment. “We really need to put that trust back in our patients and our providers.”