Gov. Jim Pillen holds a 5-day-old newborn in his arms moments before signing LB 574 into law on Monday, May 22, 2023, in Lincoln, Neb. (Zach Wendling/Nebraska Examiner)
LINCOLN — Nebraska Gov. Jim Pillen on Monday signed into law new restrictions on abortion and gender-affirming care for minors, which opponents vowed to fight until the very end.
Legislative Bill 574, proposed by State Sen. Kathleen Kauth of Omaha, passed 33-15 last Friday on the final round of debate. The measure includes an approximate 10-week abortion ban (12 weeks gestational age) and restrictions on transition surgeries, hormone therapies and puberty blockers for youths.
“Today is an extraordinary, historic day for the State of Nebraska,” Pillen said at a signing ceremony. “It’s a day where it’s really simple: Protect our kids so that our state has a bigger and brighter future.”
Under the law, the chief medical officer and Nebraska Department of Health and Human Services would be charged with setting the rules and regulations around the puberty blockers and hormones for patients before the age of 19. Transition surgeries would be prohibited.
‘Today is about celebrating’
The abortion restrictions will become law after one legislative day, approximately at midnight on Tuesday, according to legislative rules.
State Sen. Joni Albrecht of Thurston, who led the original six-week abortion ban that failed by one vote on second reading, choked up Monday as she thanked her colleagues and Pillen for sticking by her and getting more restrictions into law.
The current law allowed abortions up to 20 weeks post-fertilization, or 22 weeks gestational age. LB 574 included exceptions for rape, incest and the life of the mother.
“Today is about celebrating and protecting the unborn and allowing our children to grow,” Albrecht said. “I look forward to the day when every child is protected from conception from elective abortions.”
The gender care restrictions will become effective Oct. 1, and youths who previously received transition medications before that date can continue. However, opponents said it’s unclear whether the law allows patients who received blockers, for example, to then receive hormones.
LB 574 faced significant opposition this year and spurred a 12-week-long filibuster, but Kauth and Pillen said the purpose is simple: “protecting our kids and saving babies.”
“I brought LB 574 because you have too many kids who are being swept up in what is a social contagion and being told that their bodies are not perfect the way they are and if they just switch their gender, they’ll be fine, everything will be great,” Kauth said. “That’s not true.”
‘We will not stop’
The new law is expected to face significant challenges at the ballot box and in the courts, according to opposing senators and advocacy organizations outside the Legislature.
Pillen said he and his team are ready to fight any challenges.
State Sens. Danielle Conrad of Lincoln, George Dungan of Lincoln and John Cavanaugh of Omaha, all attorneys, have said the bill faces multiple areas of scrutiny under the law.
One argument is that LB 574, on the gender care side, discriminates on the basis of sex. It is one of 130 bills nationwide that would restrict health care for primarily LGBTQ people.
For example, cisgender boys or girls could continue to receive some restricted treatments, such as breast augmentation or puberty blockers, while transgender youths could not.
The ACLU includes LB 574 among nearly 500 state-level proposals that are “attacks on LGBTQ rights.”
After the fall of Roe v. Wade in 2022, dozens of states moved to restrict abortion, with lawsuits challenging many of those new laws. Multiple states have also implemented restrictions or bans on gender-affirming care since the Supreme Court struck down Roe, which have been challenged, too.
Mindy Rush Chipman, interim executive director of the ACLU of Nebraska, said Pillen’s signature “betrays a total disregard for Nebraskans’ freedom, health and well-being.”
“Every option is on the table to undo these regressive measures, including seeking justice through the courts,” Rush Chipman said in a statement. “We will not stop working toward a future that safeguards all Nebraskans’ rights, including the rights of transgender youth, their families and people in need of reproductive health care.”
‘Backdoor’ ban and single subject
Opponents have also said the law violates the Nebraska Constitution’s “single subject” rule, requiring that laws deal with single issues.
Kauth and other supporters argue their law holds up on this standard because it deals with health care and protects babies and children.
Dungan on Friday also criticized the Legislature’s “unlimited and unrestrained” delegation to the chief medical officer and DHHS.
State Sen. John Fredrickson of Omaha said the delegation could lead to a “backdoor” ban on transition medications for transgender minors.
Pillen did not specify what guidance he would give interim chief medical officer Dr. Timothy Tesmer, whose confirmation hearing is this week. However, Pillen noted he has known Tesmer for a long time.
“He knows Nebraska,” Pillen said of Tesmer. “He understands that his job is to carry out the law that has been signed in, and that’s what we expect him to do.”
Tesmer served as chair of the State Board of Health in March when it issued a statement in support of an unamended version of LB 574 that included a full ban on the medications for minors.
State Sen. Lynne Walz of Fremont and Cavanaugh put forward specific rules and regulations that would have clarified some of this confusion and offered specific guidance for when the bill goes into effect. They drafted these with Fredrickson.
Walz said their proposed version could serve as a “roadmap” for Tesmer.
‘Nebraska nice’ not ‘Nebraska meek’
State Sen. Ben Hansen of Blair introduced the amendment to revive an abortion ban this year, calling those efforts one of “legislative teamwork, compromise and courage.”
“While this approach doesn’t seem to be the norm in Washington, D.C., this is what good government looks like,” Hansen said.
Lawmakers also gave a nod to State Sen. Julie Slama of Dunbar, whose absence Friday as she was hospitalized for treatment of hyperemesis gravidarum, a severe form of nausea and vomiting tied to pregnancy. This almost doomed LB 574, but Slama returned that afternoon, still sick, and provided the 33rd vote for passage.
It’s one example of extraordinary efforts to get the bill passed. Others included getting State Sen. Ray Aguilar of Grand Island, who was recovering from knee surgery, to the chamber in time to vote on first round, as well the Legislature taking a 45-minute pause in debate on second round to salvage the legislation.
Hansen said that when it comes to protecting children, lawmakers would do all they could.
“Let’s not confuse ‘Nebraska nice’ with ‘Nebraska meek,’” he said.
Filibuster to continue as 2024 takes shape
Another Kauth proposal, LB 575, the “Sports and Spaces Act,” is expected to be considered next year. It would restrict sporting teams, bathrooms and locker rooms for K-12 schools based on sex assigned at birth.
State Sen. Dave Murman of Glenvil, chair of the Education Committee, said it’s his hope the bill comes to the floor and is passed next year.
The bill has 28 cosponsors, more than LB 574, and is missing four supporters of that measure: State Sens. John Arch of La Vista (the speaker), Carolyn Bosn of Lincoln, Mike Moser of Columbus and Slama.
Five of the eight Education Committee members are cosponsors.
Cosponsorships do not always mean promised support, but it’s an indication that LB 575 could be a defining mark in 2024.
Kauth said the 12-week-long filibuster aided in the passage of LB 574 because it allowed senators to work together on the sidelines and shore up support.
“Had they not filibustered, this bill would have been dead in February,” Kauth said, calling it a three- to five-year issue to work on.
The filibusters, led by State Sens. Machaela Cavanaugh and Megan Hunt, both of Omaha, have promised to continue the fight.
Cavanaugh said that Friday’s vote was “unfortunate” already, but because Pillen is “rushing” to sign the bill, with an emergency clause to go into effect almost immediately, it will lead to “extremely devastating” effects for the Nebraska medical community and health care generally.
“I think that this is not what Nebraska is,” Cavanaugh said of LB 574. “This is not what Nebraska wants, and we will see that reflected in the coming months and year.”
Correction: The caption with the photograph of Gov. Jim Pillen has been updated to correct the identity of the infant he is holding.
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