Nebraska abortion ban tied to cardiac activity falls one vote short; 20-week limit remains intact

By: - April 27, 2023 6:50 pm

State Sens. Megan Hunt, Jen Day and Machaela Cavanaugh embrace an abortion-rights proponent after a bill to further restrict abortion is defeated on Thursday, April 27, 2023, in Lincoln, Neb. (Zach Wendling/Nebraska Examiner)

LINCOLN — The Nebraska Legislature fell one vote short Thursday of advancing a ban on abortions after an ultrasound detects embryonic cardiac activity, at about six weeks into a pregnancy.

State Sen. Merv Riepe of Ralston cast the pivotal vote that killed Legislative Bill 626, a proposed abortion ban tied to when an ultrasound detects cardiac activity, usually around six weeks gestation. (Zach Wendling/Nebraska Examiner)

Republican State Sen. Joni Albrecht’s Legislative Bill 626, fell in a similar fashion as the near-total abortion ban proposed last year. Both lost to Democratic-led filibusters in the officially nonpartisan Legislature.

Albrecht needed 33 votes to end debate on the bill. She got 32, with two senators — Merv Riepe of Ralston and Justin Wayne of Omaha — voting “present, not voting.”

Bill likely dead for year, or is it?

Thursday’s vote means LB 626 is likely dead for 2023, although it’s possible the bill could be revived, political observers said. Previous Legislatures have sometimes found ways to resurrect bills after a filibuster, if supporters can secure enough votes — in this case, one more.

But either Riepe or Wayne would have to vote differently. Both are considered swing votes.

Gov. Jim Pillen, shortly after the vote, called on Riepe, a fellow Republican, to reconsider his vote. He said Riepe should remember his pledge to be a pro-life senator. 

“Pro-life has shades of gray,” Riepe said after the vote.

Wayne did not immediately respond to a request for comment Thursday. He had previously raised questions about the bill.

State Sen. Joni Albrecht of Thurston explains that Legislative Bill 626 is aimed at eliminating or sharply reducing “elective abortions.” (Aaron Sanderford/Nebraska Examiner)

Why Riepe withheld his vote

Riepe had said for weeks he would support the cardiac activity ban if conservatives gave a fair hearing and a vote to his amendment, which proposed banning abortions after 12 weeks. 

The former hospital administrator withheld what would have been the 33rd vote for ending debate, called cloture, in part because fellow conservatives gamed the system to ensure that senators had to vote for cloture before voting on his amendment.

This left conservatives little reason to consider Riepe’s proposal because if the bill survived the cloture vote, supporters could pass Albrecht’s initial bill, instead of the more “incremental” version he sought.

Riepe, who represents a politically divided suburban district in the Omaha area, argued that LB 626 was too strict for many Nebraskans and would lead to GOP losses in 2024.

He and others have pointed to polling done by a conservative firm that indicated Republicans would pay a political price with voters for passing an abortion ban stricter than 12 weeks, particularly with women. He also worried about costly litigation.

Riepe said he made a “pro-life argument” for the 12-week ban. He said a Millard-area constituent told him more women might keep their babies if they had enough time to make a sound decision.

A Capitol Security officer watches opponents of Legislative Bill 626 gather outside the legislative chamber. (Aaron Sanderford/Nebraska Examiner)

He said the six weeks from gestation provided by LB 626 was too short a window for many women to know they were pregnant, echoing arguments he heard from doctors he has known for 40 years.

“I want stability, and I want something that can go forward,” Riepe said. “I’d like to just have another shot at it next year to come up with hopefully some new bill.”

He may have additional votes for a 12-week ban, if that is proposed. State Sen. Lynne Walz of Fremont said she would support such a ban next year.

Cardiac ban was compromise, supporters say

Albrecht, of Thurston, and many of the Legislature’s other conservatives described the cardiac activity ban as a compromise that would eliminate most “elective abortions.”

State Sens. John Lowe of Kearney and Barry DeKay of Niobrara shared poems and stories from the perspective of the unborn, who they said never got a chance at life.

Supporters of LB 626 were shocked that they didn’t have the votes. Albrecht appeared stunned and declined to comment. State Sen. Kathleen Kauth of Omaha said she was “very disappointed.”

Anti-abortion Nebraskans pray in the Nebraska State Capitol Rotunda after senators voted to kill a bill to further restrict abortion on Thursday, April 27, 2023, in Lincoln, Neb. (Zach Wendling/Nebraska Examiner)

State Sen. Julie Slama of Dunbar and other conservative senators ushered Albrecht past reporters and out of the legislative chambers as abortion-rights advocates loudly cheered the result in the Capitol Rotunda.

“Don’t let that get to you,” Slama said to Albrecht.

Celebration in Rotunda

An overflow crowd of supporters and opponents of LB 626 watched the debate and, at times, added their voices to it. Capitol Security assigned opposite sides of the gallery to abortion-rights advocates and abortion ban proponents, a rare step reserved for some of the most divisive debates.

State Sen. Danielle Conrad of Lincoln said after the vote that the debate had responsibly centered on how extreme LB 626 was. She said the vote and the debate speak for themselves.

“This radical ban was a bridge too far,” Conrad said.

Once again, State Sen. Mike McDonnell of Omaha was the lone Democrat to vote for LB 626. He argued that he ran as a pro-life senator and that Albrecht, the author of LB 626, had answered his questions

State Sen. Mike McDonnell of Omaha defends his support as a Democrat for Legislative Bill 626. (Aaron Sanderford/Nebraska Examiner)

State Sen. Megan Hunt of Omaha, at a rally after the vote, thanked the senators who stood against the bill. She said Riepe’s actions showed there are still people serving in the Legislature who believe in doctors and science.

“I always knew there would be a path for this outcome,” Hunt said. “I knew that this could happen, but I knew it would be hard.”

After the vote, abortion rights advocates in the Rotunda chanted and shed tears, hugging Hunt and State Sens. Machaela Cavanaugh and Jen Day, both of Omaha. 

Next steps for ban supporters

Supporters of LB 626, meanwhile, gathered in a circle nearby and joined in a prayer with Tom Venzor, the lobbyist for the Nebraska Catholic Conference.

“Clearly a devastating day for the state of Nebraska and for the cause of life,” Venzor said. “Thousands of babies are going to be left to the ills of abortion.”

Sandy Danek, executive director of Nebraska Right to Life, joins a huddle of anti-abortion supporters after a bill to restrict abortion failed. (Zach Wendling/Nebraska Examiner)

Venzor rejected the idea that a six-week ban was “too extreme,” saying that polling done on behalf of the Catholic Conference showed almost 60% support for the “heartbeat bill.”

“It’s not going too far,” he said. “You’re seeing similar legislation going on across the country.”

Hunt and other abortion-rights advocates, including Dr. Emily Patel, a maternal fetal medicine specialist, said they realize this was just the latest round in a continuing fight.

Advocates of stricter abortion bans said they hope Albrecht’s bill might be resurrected before the session ends in June. If not, they’ll be back next year.

Said Venzor: “Where there is a will, there is a way.”

Nebraska Examiner intern Zach Wendling and Senior Reporter Paul Hammel contributed to this report.

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Aaron Sanderford
Aaron Sanderford

Political reporter Aaron Sanderford has tackled various news roles in his 20-plus year career. He has reported on politics, crime, courts, government and business for the Omaha World-Herald and Lincoln Journal-Star. He also worked as an assignment editor and editorial writer. He was an investigative reporter at KMTV.