Proposed 12-week abortion cutoff hits sooner than Riepe’s, with no exception for fetal anomalies

Fetal medicine doctors say proposed ban would limit parents’ choices at difficult time

By: - May 15, 2023 5:45 am

State Sen. Merv Riepe of Omaha discusses his amendment for Legislative Bill 626 that would’ve shifted it from cardiac activity to a 12-week ban. (Aaron Sanderford/Nebraska Examiner)

LINCOLN — Last month, State Sen. Merv Riepe of Ralston was the reason the Nebraska Legislature fell a single vote short of outlawing abortions after an ultrasound detects embryonic cardiac activity, typically at about six weeks’ gestation. 

But Riepe’s new deal with his conservative colleagues, which contains a stricter ban than he proposed, could spur the ban’s passage Tuesday. The new proposed cutoff would be two weeks sooner than Riepe’s because it would be tied to gestation rather than fertilization.

State Sen. Ben Hansen of Blair speaks on the floor of the Nebraska Legislature on Wednesday, March 22, 2023, in Lincoln, Neb. (Zach Wendling/Nebraska Examiner)

State Sen. Ben Hansen of Blair introduced the amendment May 8. The amendment would also restrict certain gender-affirming health care for trans minors. 

“Perfect, no,” Riepe said in an interview. “Better, yes. I feel that the 12-week will serve the state well, and we will have some more protection for the unborn. It will recognize and respect women’s rights to reproductive services. And it will also hopefully avoid some legal complications. 

“We can’t fight forever.”

Seeking a stricter ban that can pass

Gov. Jim Pillen and other abortion ban supporters have spent the past two weeks pressing state lawmakers for a new proposal that Riepe, State Sen. Lynne Walz of Fremont or another lawmaker who could potentially be a 33rd voter would support so they can overcome an expected filibuster, allowing the bill to pass, political observers said.

Those backing abortion restrictions have been balancing a group of conservatives and moderates who are more divided on abortion than they say. Some want a total ban. Others are OK with the state’s current 20-week limit. One conservative senator said it was like juggling six balls, some “on fire” and others “covered in slime.”

Riepe led a quiet group that has described the cardiac ban as too strict for most Nebraskans, saying many women wouldn’t know they were pregnant, let alone have time to decide what to do.

State Sen. Merv Riepe of Ralston. (Zach Wendling/Nebraska Examiner)

On the other side are conservatives who preferred LB 626, which contained the ban based on fetal cardiac activity, plus some who preferred an outright abortion ban. Several wanted to deny Riepe a victory after he effectively killed LB 626, so they demanded changes to the timing and exceptions in Riepe’s proposal, making the proposed ban stricter and the decision-making time shorter.

The result: Hansen’s proposal that would tie the ban to 12 weeks gestational age, from the first day of a mother’s last period. Riepe’s proposed ban had set it 12 weeks from fertilization, much like the state’s current 20-week abortion ban.

A different, shorter 12-week ban

Hansen’s amendment would effectively ban abortions at 9 to 10 weeks after fertilization, which would outlaw more abortions than Riepe’s proposal. Nebraska Department of Health and Human Services statistics show about 120 abortions a year occur between the 12th and 14th week of gestation.

Hansen’s amendment also left out Riepe’s exception for fetal anomalies, which would have allowed abortions beyond 12 weeks for mothers facing fetal abnormalities. Doctors have said patients often don’t learn about those challenges until 18 to 20 weeks into a pregnancy.

Danielle Conrad introduces legislation before a legislative committee
State Sen. Danielle Conrad of Lincoln introduces legislation on Thursday, March 2, 2023, in Lincoln, Neb. (Zach Wendling/Nebraska Examiner)

This would mean fewer choices for parents who discover that a developing fetus might be incompatible with life outside the womb, doctors said. Such conditions include fetuses developing without lungs or brains. They also include fetuses developing with severe disabilities, including Down syndrome.

Hansen said he and other conservatives do not believe that someone should be able to end a life because it is unlikely to live long — or at all — after being born. He said the time mothers get with even stillborn babies is precious and said medical providers sometimes make mistakes about which fetuses will survive. 

Riepe made a deal, Walz not yet on board

Riepe confirmed that he agreed to forego the fetal anomaly language to get to 12 weeks, even in a stricter version.

Walz said she has concerns about the new proposal if it does not ultimately make an exception for “fatal” fetal anomalies. Hansen said he and others might be willing to consider a more narrowly tailored exception in a year or two, if its absence proves problematic.

State Sen. Danielle Conrad of Lincoln, one of the Democratic senators opposing a stricter abortion ban, said state law should recognize that every pregnancy is different and that women need time and space to make decisions with the best available information.

She said that’s why she appreciated the thought Riepe put into his earlier amendment to LB 626, which didn’t get a serious vote. She was less pleased with the language Hansen has proposed amending into Legislative Bill 574.

Nebraska Gov. Jim Pillen speaks during a news conference to support Legislative Bill 626, a bill that would have banned abortion after an ultrasound detects embryonic cardiac activity. (Aaron Sanderford/Nebraska Examiner)

“By having an abortion ban that is actually not a 12-week abortion ban but is actually more like a 9 or 10 week … by moving that back and having no exceptions for fetal anomalies, you have really created a tragic circumstance for some of the most heart-wrenching medical issues that face families with very, very wanted pregnancies,” Conrad said.

Doctors who prefer clarity troubled by proposal

Doctors who support abortion rights have argued that it is cruel to force women to carry a baby to full term, knowing it cannot survive. They said state government has no business in the exam room on the most difficult day of a woman’s life.

“The thing that is heartbreaking about this is ultimately we are really punishing a group of people, women who have desired pregnancies,” said Dr. Emily Patel, an Omaha fetal medicine specialist who opposed a stricter abortion ban. “You can never know what is best for that patient … unless you are in that situation.”

Dr. Neil Hamill, a maternal and fetal medicine specialist in Omaha and Fremont, said he worries more doctors will turn to lawyers first for approval of medical care they think might be best for a patient, which could slow down decisions and add to the risks pregnant women face.

“The narrative that this will help clarify the situation is incorrect,” Hamill said of the Legislature considering passing a 12-week ban without an exception for fetal anomalies. “If anything, this will make determining a medical emergency harder.”

Tom Venzor, executive director of the Nebraska Catholic Conference, speaks at a rally in favor of a near-total abortion ban on April 12, 2023, in Lincoln, Neb. (Zach Wendling/Nebraska Examiner)

Others like ban proposal leaving room for doctor to be wrong

Dr. Robert Bonebrake, an Omaha-area fetal medicine specialist who supported a stricter abortion ban, said he has seen people facing fetal anomalies make the choice to abort and the choice to carry the fetus to term. In his 25 to 30 years, he said he has seen no parent regret carrying to term a child that might not make it out of the womb alive.

Today, the options for parents facing fetal anomalies include abortion or the option to continue the pregnancy with regular prenatal follow-ups. There are hospice or palliative care options for mothers giving birth to a baby likely to die, doctors said.

“Although it’s incredibly difficult, it allows for recognizing the dignity of both the woman and the unborn child,” Bonebrake said.

Tom Venzor of the Nebraska Catholic Conference and Nate Grasz of the Nebraska Family Alliance, groups that backed the stricter abortion ban in LB 626, said challenging pregnancies deserve to be protected and valued.

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

As Pope John Paul II said, a society will be judged on the basis of how it treats its weakest members,” Venzor said. “Preborn babies who receive a terminal diagnosis are among the most vulnerable in our communities.”

Abortion-rights advocates oppose Hansen amendment

Andi Curry Grubb of Planned Parenthood of Nebraska said politicians should not be making such deeply personal decisions for patients and their doctors. Planned Parenthood and ACLU Nebraska questioned the legality of the shorter process the Legislature is taking to adopt a ban.

The goal is to take away people’s power over their lives and their futures, and we won’t let it happen,” Curry Grubb said.

Riepe told the Nebraska Examiner that if all sides of the abortion debate end up slightly disappointed with where things end up, then it was probably a solid negotiation. 

“That’s how it’s supposed to be,” he said. “Neither side gets all of what they wanted.”

Nebraska Examiner intern Zach Wendling 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.