Nebraska Examiner Press Release
Hearings on competing Nebraska abortion initiatives mirror campaign
Initiatives 434 and 439 will be on the November ballot
BY: AARON SANDERFORD – OCTOBER 15, 2024 7:24 PM
Nebraska Deputy Secretary of State for Elections Wayne Bena listens to testifiers for and against Nebraska’s competing abortion ballot measures. (Aaron Sanderford/Nebraska Examiner)
LINCOLN — Nebraska’s dueling ballot initiatives on abortion had separate hearings Tuesday at the Capitol, with the testimony largely echoing the campaign fight between the sponsors.
Advocates for additional abortion restrictions spoke in support of Initiative 434, which would allow no abortions after the first trimester of pregnancy, with some exceptions.
Critics of the restrictions amendment said it was designed to leave the Nebraska Legislature the option of limiting abortion more than the amendment calls for, up to and including a total ban.
Abortion-rights advocates supported Initiative 439, which would put a right to abortion in the Nebraska Constitution until fetal viability, as defined by a treating health care practitioner.
Critics of the abortion-rights measure argued it would leave too much room for midwives and doulas to decide viability, decisions they said were best left to doctors. They said this would allow abortions late into a pregnancy.
High stakes in ballot fight
The local stakes are high. Nebraska is the first state to provide competing abortion amendments on the same ballot in the time since the U.S. Supreme Court overturned Roe v. Wade.
Nebraska Secretary of State Bob Evnen has said that if voters pass both abortion-related amendments, the one with the most votes will be incorporated into the constitution.
Evnen’s office hosted Tuesday’s hearings, a step required by law for all voter-driven initiatives that reach the ballot. Each hearing drew more than 30 people, supporters and opponents.
Dr. Catherine Brooks, a neonatologist, and supporter of the restrictions amendment, Initiative 434, argued that only doctors should be allowed to decide fetal viability.
She also argued that the current state ban on abortion, passed in 2023, is enough. Nebraska law allows abortions up until 12 weeks gestational age, with exceptions after that for the life of the mother and for rape and incest.
Brooks and others have backed stricter bans proposed in recent years, which they said would have saved young lives.
She said the restrictions amendment is modeled after the ban the Legislature passed in 2023. It sets a similar ceiling on abortion after the first trimester, at about 12-14 weeks, but it sets no floor.
“Women deserve clear, compassionate and scientific standards of care,” Brooks said. “Initiative 439 (the abortion-rights amendment) … requires no such training and opens the door to non-physicians… This is simply unsafe.”
Dr. Kim Coleman, a pediatric specialist, backed the abortion-rights amendment. She said Initiative 439 would give doctors more leeway to do what is medically necessary for pregnant women with less government interference.
Coleman described herself as a “Christian, pro-life doctor.” She said the ban after the first trimester called for in the restrictions amendment would increase women’s suffering.
She said specialists in her field try to save babies. She said she understands and has compassion for the people advocating on the other side.
But she said bans like Nebraska’s current law do not always let women facing fetal anomalies get treated until their health is threatened.
“Any of you in this room or your loved one may be faced with the heartbreaking news that a child you are carrying cannot survive,” Coleman said. “Your body might be at risk.”
Fight over consequences
Supporters of both amendments accused those behind the competing initiative of distorting the truth about the opposing initiative and extolled the virtues of their preferred amendment.
Dr. Elizabeth Weedin, an Omaha obstetrician, said she and her fellow doctors are tired of activists and politicians stretching the truth and “stoking confusion.” She said the abortion-rights amendment would get politicians out of a private decision and that the abortion-restrictions amendment would make the existing ban harder to work around.
Dr. Richard French, a Hastings internist, argued that abortion-restrictions amendment was better. He said it would preserve other state legal restrictions on abortion and keep Nebraska from expanding access to abortion.
One testifier told the crowd they would face God’s judgment. Both offered examples of women who have been harmed by existing law or who they said might be harmed if the competing amendment passed.
Allie Berry of Protect Our Rights, the group behind Initiative 439, said the current ban harms women.
Gabriel Cloutier of Lincoln spoke about nearly losing his mother to an ectopic pregnancy.
“We thought it was just a bad stomach ache,” Cloutier said. “How many other sons and daughters might lose their mothers like this?”
Nikki Shasserre of Protect Women and Children, the group behind Initiative 434, said women’s health would be risked by letting non-doctors decide viability.
Part of each hearing detoured into who is funding the campaigns. Supporters of the restrictions amendment argued that abortion supporters from out of state back the abortion-rights amendment.
Supporters of the abortion-rights amendment pointed to $4 million in donations from family members of U.S. Sen. Pete Ricketts, R-Neb., helping the restrictions amendment,.
Rebecca Schwend, a mother of five from Lincoln, said she prefers the restrictions amendment because it would preserve other existing state limits on abortion, including parental consent laws for minors.
Erin Feichtinger of the Women’s Fund of Omaha backs the abortion-rights amendment. She said sex assault victims should not be forced to discuss what happened to them to be able to access reproductive care.
Initiative 434, from Protect Women and Children
Abortion-restrictions amendment
What the language says: Article I of the Nebraska Constitution shall be amended by adding a new section 31 that states as follows: Except when a woman seeks an abortion necessitated by a medical emergency or when the pregnancy results from sexual assault or incest, unborn children shall be protected from abortion in the second and third trimesters.
What it would do: Put into the state constitution a maximum limit or cap on how long into a pregnancy an abortion could be legal. It would outlaw most abortions after the first trimester. Most medical experts set that timing between 12 and 14 weeks gestational age. Lawmakers could not revert, for instance, to the state’s former 20-week ban.
What it might cause: The language of this amendment would allow the Legislature to restrict abortion further. Lawmakers were a single vote away in 2023 from passing a ban tied to when an ultrasound can detect fetal cardiac activity at about six weeks. The filibuster that prevented that measure’s passage could be changed.
Common criticisms: Some have argued that the amendment language is confusing on purpose and that some organizers seek to convince signers that it would protect Nebraska’s current law when it would not. Nebraska currently restricts abortion to 12 weeks gestational age, or about ten weeks after conception.
Notable supporters: Nebraska Catholic Conference, Nebraska Right to Life, Nebraska Family Alliance, U.S. Sen. Pete Ricketts, Sandhills Publishing owner Tom Peed and his son and fellow business owner Shawn Peed.
Initiative 439, from Protect Our Rights
Abortion-rights amendment
What the language says: Article I of the Nebraska Constitution shall be amended by adding a new section 31 as shown: All persons shall have a fundamental right to abortion until fetal viability or when needed to protect the life or health of the pregnant patient, without interference from the state or its political subdivisions. Fetal viability means the point in pregnancy when in the professional judgment of the patient’s treating health care practitioner, there is a significant likelihood of the fetus’ sustained survival outside of the uterus without the application of extraordinary medical measures.
What it would do: Codify the right to an abortion in the Nebraska Constitution, similar to how the U.S. Supreme Court decided Roe v. Wade in 1973, before the court overturned Roe with the Dobbs v. Jackson Women’s Health case in 2022. It would allow abortion until fetal viability, as defined by a treating healthcare practitioner. Most medical experts set the age of fetal viability between 22 and 24 weeks gestation.
What it might cause: Any state restrictions or laws passed on abortion-related care since Roe could be overturned by the courts, and no new state restrictions could be passed. This could jeopardize parts of state law addressing abortion-related care, including the state requirement that women be shown an ultrasound before having an abortion and the requirement that parents be notified if a minor is pursuing an abortion.
Common criticisms: Some worry that abortion-care clinics and providers could use the law to allow abortions later than 22-24 weeks by discounting fetal viability. They argue the flexibility of interpretation would rest almost entirely with medical providers. Others question whether a mandated 24-hour waiting period before having an abortion could be put at risk.
Notable supporters: Planned Parenthood, ACLU Nebraska, Nebraska Appleseed Action, I Be Black Girl, Women’s Fund of Omaha, former Omaha Mayor Jim Suttle, University of Nebraska Regent Barbara Weitz and her daughter, nonprofit president Katie Weitz.
