Nebraska passes stricter abortion ban, limits on gender-affirming care

LINCOLN — Pleas, chants and tossed tampons and pads did not stop the Nebraska Legislature’s conservative majority from passing a bill Friday combining two proposals that several state senators said might not have been able to pass on their own. 

Hundreds spent the day rallying at the Capitol for abortion rights and trans rights. They were met by supporters of stricter limits on abortion and people advocating to restrict minors from seeking gender-affirming care.

The crowd came to watch the final round of debate on Legislative Bill 574, a bill that outlaws gender-assignment surgeries, limits puberty blockers and hormone therapies for minors. It also bans abortion at 12 weeks gestational age, or 9 or 10 weeks from fertilization.

The bill got the minimum support needed in the 49-member Legislature to overcome a filibuster, passing 33-15. State Sen. Julie Slama of Dunbar, who was visibly sick, showed up just in time to provide the 33rd vote. Colleagues lined up to shield her from view.

She later tweeted that she was hospitalized Friday with hyperemesis gravidarum, a form of severe nausea and vomiting tied to pregnancy.

“On the most divisive bill of the entire session, everyone put their differences aside and joined in a wall to keep my illness from the cameras,” Slama said. “‘Gratitude’ doesn’t even begin to cover it.”

Crowd noise

The Nebraska State Patrol brought in 20 additional troopers for Capitol Security on Friday.

Debate was postponed for five to seven minutes Friday afternoon as the State Patrol removed the public from the galleries. Lt. Gov. Joe Kelly, president of the Legislature, ordered the action after a heckler screamed about the Holocaust and Nazis and two women tossed open tampons and pads onto the legislative floor below.

Chants heard during the debate included: “Keep kids alive! Trans people matter! Keep your laws off my body! This is what democracy looks like!”

In the end, the State Patrol arrested six spectators, a spokesman said. They included the two people who threw items from the opponents’ balcony, one person who refused to leave that gallery after yelling repeatedly and another person who refused to leave the supporters’ gallery when directed to do so, according to the State Patrol.

A fifth person was arrested in the Rotunda after preventing a legislative sergeant-at-arms from opening a door to the legislative chamber and then refusing a trooper’s order to leave, the Patrol said. While troopers were arresting that person, someone else tried to push past one of the troopers and then, when held back, punched a trooper in the chest, according to the Patrol.

The State Patrol also spoke to one legislative staffer after an interaction in the Rotunda. One witness said the staffer bumped a Planned Parenthood representative. 

‘Protecting children’

State Sen. Kathleen Kauth of Omaha, sponsor of the original trans-related LB 574, and State Sen. Ben Hansen of Blair, who added the stricter abortion ban earlier this week, celebrated what they said was a bill that will “protect children in Nebraska.”  

“This is and always has been about the age of the person to make these kinds of decisions. As an adult, they have every right to, but as a child, you have to be extremely careful,” Kauth said of the gender-care section. 

“I think that everyone in this body wants to protect kids. We just have different ideas about what that means.”

While some states have moved to restrict gender-affirming care for adults — such as in neighboring Missouri — Kauth told the Examiner “we will not be touching adult care.”

Hansen, reached after the vote, said the abortion-related section of LB 574 was a compromise between people who preferred a stricter six-week ban tied to embryonic cardiac activity and people who wanted a lengthier ban or the state’s current 20-week ban from fertilization. 

“It’s a relief. It’s not everything we wanted, but it’s moving the ball forward for those who believe in a pro-life Nebraska,” Hansen said. 

“Sometimes it’s OK not to eat our whole apple in one bite.”

‘Young people will suffer’

Opponents said women and young people will suffer under LB 574. They also said the majority’s victory would be short-lived. ACLU of Nebraska, OutNebraska and other advocacy groups pledged to sue arguing that the bill creates unequal treatment under law and violates the state’s single-subject rule.

State Sen. Megan Hunt of Omaha, whose son is trans, said the State of Nebraska is walking into costly litigation it won’t be able to win. She and other critics of the combo bill have questioned the attorney general’s view that LB 574 can withstand legal scrutiny.  

State Sen. Jen Day of Omaha said her fellow senators have heard the legal arguments underpinning these lawsuits and “they are sound.” She argued the conservative majority was risking Nebraska’s reputation with businesses and national organizations.

Legal experts have questioned whether the two bills could be combined without triggering a constitutional provision that is meant to avoid combining unrelated measures into a single bill. Supporters say both proposals regulate health care for the young.

“To be clear, we refuse to accept this as our new normal,” ACLU Nebraska Interim Executive Director Mindy Rush Chipman said. “This vote will not be the final word. We are actively exploring our options to address the harm of this extreme legislation … this is not over, not by a long shot.”

Hansen said he expects legal challenges but is confident the bill can withstand them.

Floor fight

State Sen. Machaela Cavanaugh of Omaha called the Legislature “morally bankrupt.”

Cavanaugh said hearing those chants, even with disruptions, was democracy in action. Hearing it and seeing their faces and seeing their pain was “hurting my soul and hurting my heart.” 

“I wish the people in here cared about what they’re doing to people, but they don’t,” she said.

“What is wrong with you?” Cavanaugh said. “Why are you doing this to our kids? Why are you doing this to our doctors? … Why are you doing this? … Please stop.”

State Sen. Steve Erdman of Bayard pushed back, saying his Bible told him how he should vote on LB 574, not a fellow state senator. 

“Saying abortion is health care is like saying being raped is lovemaking,” Erdman said.

Hunt, a rape survivor, said rape is one of the reasons women need a right to an abortion, because men don’t always leave women a choice.

“I don’t know your God the same way you know your God, but I think your God is working through me to reach you,” she said. “LB 574 is not a conservative bill. It is an extremist bill.”

State Sen. Jane Raybould of Lincoln said her conservative colleagues were making a mistake by following the national Republican trend of pursuing stricter abortion bans and limits on gender-affirming care since the U.S. Supreme Court overturned Roe v. Wade last June.

Questions about the bill

State Sen. Lynne Walz of Fremont said the specific rules she drafted with State Sen. John Fredrickson of Omaha and State Sen. John Cavanaugh of Omaha should serve as a roadmap to the state’s chief medical officer, who will be charged with drafting rules and regulations surrounding puberty blockers and hormones, which could include a full ban.

John Cavanaugh argued during debate that senators should not have delegated that authority to the chief medical officer without codifying specific rules like the ones he and the others created.

It’s not immediately clear what will happen on Oct. 1, when that part of the bill goes into effect, among both supporters and opponents. Absent new guidelines, some argue the medications could continue unrestricted, while others say they would be fully banned.

Interim chief medical officer Dr. Timothy Tesmer will ultimately have the final say. His confirmation hearing is next week, and he signed onto a letter in March as chair of the State Board of Health in support of full restrictions on the medications.

State Sen. George Dungan of Lincoln said the delegation also raises constitutional concerns because the guidance offered in the bill  to the chief medical officer is vague and obscure. Dungan said the official’s authority would be “unlimited and unrestrained.”

Gov. Jim Pillen, in a statement, celebrated the bill’s passage. Pillen had pressed behind the scenes to revive the abortion ban this session. He pledged to sign Legislative Bill 574 into law next week and said, “all children deserve a chance to grow and live happy, fruitful lives. This includes pre-born boys and girls, and it includes children struggling with their gender identity.” 

Nebraska Examiner senior reporter Paul Hammel contributed to this report.