Some Nebraska doctors fear ‘collateral damage’ from proposed near-total abortion ban

LINCOLN — As debate begins on a Nebraska proposal to ban nearly all abortions in the state, some medical professionals are worried about how exceptions in the law would be utilized.

Legislative Bill 626, proposed by State Sen. Joni Albrecht of Thurston, would outlaw abortions at around six weeks when cardiac activity can be detected. Abortions are currently allowed in the state up to 20 weeks of pregnancy with exceptions for the life of the mother.

The bill is scheduled for first-round debate Wednesday for an allotted eight hours.

At the bill’s public hearing, doctors opposing LB 626 outnumbered those in support by a margin of at least four to one.

Dr. Robert Bonebrake, a maternal-fetal medicine specialist in Omaha who testified in support of the bill, said one of LB 626’s changes includes extending the exception for the life of the mother.

The bill specifically protects “a medical judgment that could be made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.”

“This bill actually is more favorable and friendly to physicians than the one that’s currently on the books,” Bonebrake said.

The current law includes “would,” he said, with the change providing “much more breadth and width” for physicians who feel that maternal health is threatened.

Dr. Emily Patel, a maternal-fetal medicine specialist in Omaha, disagreed. 

She said the introduction of LB 626 has already led to cascading fear among her patients, who are either pregnant or wish to become pregnant.

In one way or another, Patel said, almost every patient she sees brings up LB 626.

“I think it comes from a place of fear and unknown and what’s going to happen to me and my family if I’m in one of these terrible scenarios where this law might prevent me from being able to access the care that I need,” Patel said.

Dr. Elizabeth Constance, a reproductive endocrinologist in Omaha, said that while abortions are legal up to 20 weeks of pregnancy, no Nebraska provider performs abortions after 18 weeks.

Constance pointed to rural counties of the state that do not have an obstetrical provider, with some patients already traveling great distances for care.

“And that’s only going to get worse as we limit access to health care and as we tell doctors that we don’t trust them to make decisions to their full expertise and training,” Constance said.

12-week ‘compromise’

Last year, Albrecht proposed outlawing abortions entirely if the U.S. Supreme Court overruled Roe v. Wade, which it ended up doing later that year. That proposal failed to advance by one vote.

Bonebrake noted that LB 626 offers multiple exclusions that the 2022 proposal did not, including rape, incest, the life of the mother, in vitro fertilization, miscarriages and ectopic pregnancies. Some of those, he noted, have been lost in some of the discussion and “noise” surrounding the bill.

A proposed amendment by State Sen. Merv Riepe of Ralston would also restrict abortion but instead allow abortions up to 12 weeks, which is seen as a “compromise.” 

Riepe’s amendment adds an additional exception for a “fetal anomaly incompatible with life,” which is defined as an anomaly diagnosed before birth that will “with reasonable certainty result in the death of the unborn child within three months.” Conditions that could be treated after birth would not be protected. 

Patel said many of the high-risk patients she sees might face fetal anomalies, though most are not diagnosable until well into the second trimester, typically about 18-20 weeks. 

Neither Albrecht’s nor Riepe’s proposals would adequately protect these patients nor work for Nebraska, Patel said.

“Once we start getting into 15, 16, 17 weeks, if we have a complication in pregnancy, we’re going to start to doubt whether or not we’re within the bounds of the law in taking care of patients the best way we know how,” Patel said.

Constance said LB 626 “attempts to pay lip service to exceptions” that in reality may not be realized.

For example, she said determining whether an abortion is necessary to save a mother’s life isn’t clear-cut and some doctors fear that one differing opinion could void the legal exception.

Opinions could differ among a group of highly trained, well-qualified maternal-fetal medicine specialists. Bonebrake said those fears are covered under LB 626’s wording change.

The Riepe amendment does not provide exceptions for sexual assault or incest, as the original bill does.

Constance said requirements for rape or incest could likely include obtaining a police report. However, a vast majority of survivors never report their assault or might not do so right away.

Under LB 626, patients would be locked into a six-week period to make that decision. This is about two weeks after a missed menstrual cycle and when many women may not know they are pregnant.

“We can line out these exceptions on paper, but if they don’t actually do what they say they’re going to do in real life, they’re not real exceptions,” Constance said.

The Riepe amendment also does not appear to include the wording change to provide doctors more latitude in life-threatening situations.

‘Gut-wrenching’ decisions

Patel said that in the course of talking about legislation such as LB 626, she often wishes senators could sit in during counseling sessions and see the “gut-wrenching” decisions patients must face.

One example she offered is a fetus that doesn’t have kidneys or that has nonfunctioning kidneys, meaning the baby can’t survive once it’s born.

Constance said patients may be forced to carry a baby to term with a condition not compatible with life. Under those circumstances, patients face a higher risk of preeclampsia, high blood pressure, cardiac issues and hemorrhage after delivery.

All of that comes, Patel said, “when we know what the end is going to be.”

“I cry with patients,” Patel said. “I see patients having to face decisions that they would never wish on their worst enemies.”

Bonebrake said there may be a slightly greater risk in some maternal situations, but he emphasized lethal fetal anomalies occur in a minority of pregnancies. 

And if there is any risk to the life of the mother, he said, physicians will act.

“Any physician providing best medical practices is safe under this framework of LB 626,” Bonebrake said at the bill’s Feb. 1 public hearing. “Only those who would have reason for concern would be physicians whose conduct is so far outside the mainstream, so indifferent to human life, that a well-informed physician could never have made the same decision.”

‘Substandard care’

Patel warned of the possible impact of the bill on hospital care, particularly in rural Nebraska.

A hospital in Idaho that served a city of more than 9,000 people announced in March it would no longer provide obstetrical services, citing staffing issues and the political climate. Idaho has one of the most restrictive abortion bans in the nation.

Patel said that incident should be one of the “biggest cautionary tales” for Nebraska as similar decisions could be made here in the future. 

Constance added that the vast majority of doctors practice where they did their residency, and if medical students decide against accepting residencies in Nebraska — or if there are fewer or lower-quality residents — medicine across the board will suffer.

She predicted those impacts will first be seen in fewer OB-GYN providers and cascade down through neonatologists who deal with premature babies, pediatricians, intensivists and internal medicine doctors.

“It’s not going to stop at obstetrics and gynecology, although that in and of itself would be devastating,” Constance said.

Bonebrake said the reverse argument could be made, that restricting abortion could bring in more medical providers. 

Dr. Elena Kraus, an OB-GYN in Lincoln, said at the bill’s hearing that physicians want to live in a state standing for “life-affirming medicine.”

However, Bonebrake emphasized that these predictions are “based on nothing other than people’s conjecture and noise.”

LB 626 is another example of lawmakers attempting to legislate medical decisions and put them into a “nice box and put a bow on it,” Patel said.

She said the bill could prevent doctors from providing a full range of medical care.

“By hindering my ability to do that, we’re providing substandard care to patients of Nebraska, and patients will suffer for that,” Patel said. “There will be collateral damage. There will be patients who will suffer morbidity, and there will be patients who will die because of bans like this.”