Dobbs shifted ground beneath Nebraska abortion debate

LINCOLN — A year ago, Nebraskans supporting abortion rights and those wanting them curbed absorbed a new legal reality: The U.S. Supreme Court overturned Roe v. Wade, pushing more choices about regulating abortion back to the states.

The Dobbs v. Jackson Women’s Health decision upset the political equilibrium of Nebraska, a red state with purple cities.

The decision stoked passions in both directions, in defense of abortion rights and to reduce them, which was evident in block-long lines of testifiers showing up at the Capitol.

For some, the decision made real the possibility of legal abortions ending. 

Trigger ban fell short

Many abortions became illegal quickly in 13 states that had passed so-called “trigger bans” on abortions, including neighboring Wyoming, South Dakota and Missouri.

Nebraska had fallen just two votes shy of joining them in April 2022. But a filibuster felled the “trigger bill” by State Sen. Joni Albrecht of Thurston and then-Sen. Mike Flood. It would have banned most abortions post-Roe.

“These are things that a lot of folks in this state have taken for granted, that people in Nebraska have had this kind of access,” said Shelley Mann, executive director of Nebraska Abortion Resources, which helps women pay for abortions. 

Merged bill helps 12-week ban pass

In the year since Dobbs, the Legislature passed a stricter abortion ban, at 12 weeks gestational age. Members could have made that change without Dobbs, political observers said. It left few satisfied, no matter their stance.

Albrecht and many other legislative advocates for additional restrictions on abortion have expressed disappointment about settling for the 12-week proposal, which is about 10 weeks from fertilization. She and others have said they preferred a far-stricter ban.

“For 50 years, people have had the ability to do what they wanted to do,” Albrecht said this week, looking back. “Many of us believed that [Roe] was the most egregious decision. We don’t get to make the decision to take others’ lives.”

Albrecht said she “compromised” this year by proposing a ban tied to when an ultrasound could detect embryonic cardiac activity, which usually happens at about six weeks. That bill fell a State Sen. Merv Riepe vote short of overcoming a filibuster.

Riepe, a former hospital administrator from Ralston, joined abortion-rights advocates in describing Albrecht’s bill as “too extreme,” because many women wouldn’t know they were pregnant in time to make an informed decision.

Knowing how critical his vote was for passage, and saying he had the support of other senators afraid to speak out, he pressed for a ban 12 weeks after fertilization. But senators backing the cardiac ban wanted more. Both proposals failed.

‘Hot Merv Summer’ on ice

Advocates who briefly hailed 2023 as “Hot Merv Summer” cooled when they learned that Gov. Jim Pillen and Riepe had worked with conservatives to revive a stricter version of his 12-week ban, one tied to gestational age instead of fertilization.

Pillen worked with legislative leaders to attach the revamped abortion ban to a bill that could secure 33 votes to beat a filibuster. They found it in Legislative Bill 574, which restricted gender-affirming care for minors.

The combination helped both proposals pass when neither

might have alone. Questions about logrolling made LB 574 the target of a lawsuit challenging it because of a state constitutional requirement that bills must address a single subject. 

Defenders of LB 574 say both bills deal with “saving young lives.” Detractors call it “a two-for-one special.” 

Legal experts raised questions but have said the Nebraska Supreme Court typically defers to the Legislature on such matters.

People engaged and ready to fight

Either way, the push for additional abortion restrictions and the pushback of people who want to maintain or expand access to abortion is likely to continue. Both sides are energized and engaged after a year and a half of sharper conflict.

Pillen and Albrecht have said the 12-week ban is one step. Both want a ban at conception. Many in the abortion-rights movement have discussed a possible constitutional amendment enshrining abortion rights, much like Kansas passed.

State Sen. Carol Blood of Bellevue said she’s seen women ages 60 and older and women in their teens and 20s stepping up to support abortion rights. Previously apolitical people chanted in the Rotunda or contacted lawmakers, she said. Both groups are angry about “sloppily written bills” that seem to value politics more than using accurate medical terminology, she said.

“I see women who had to fight for that right and remember what it was like before, when they had friends or family members who lost their lives having illegal abortions,” Blood said. “The younger people don’t understand … why a right they’ve always had is [at risk of] being taken away.”

Nate Grasz of the Nebraska Family Alliance said Dobbs ignited similar energy from Nebraskans of faith who have prayed for decades for restrictions they say could save more than 2,000 lives each year that state statistics show are aborted.

Dobbs, he said, “opened up new pathways and new opportunities that people across Nebraska and our organization had been fighting for.” Now, he said, is “a new era where the issue has been returned to our state and our people.”

Only constant is ‘uncertainty’

Andi Curry Grubb of Planned Parenthood said the only constant now is “uncertainty.” She and Mann say women have to travel longer distances and wait longer for abortion care because of people seeking care from other states.

Women seeking abortion care in Nebraska are facing waves of incorrect or misleading information about what services are available and when. Planned Parenthood gets calls from women who think Nebraska has outlawed abortion, Curry Grubb said.

She sees a future in which voters push back against extremists on abortion, as they did in recent elections in Virginia. And her organization is working with ACLU Nebraska and other lawyers to push back against restrictions in court.

“I think it’s purposeful to create fear among patients and providers,” she said. “We’re going to keep fighting. I think the next year and a half is going to be very telling regarding where abortion access ends up in Nebraska.”

Year ‘worthy of celebration’

Sandy Danek of Nebraska Right to Life said she and other “advocates for the unborn” know the year since Dobbs has been “a year of victory worthy of celebration.”

She worries that people don’t know what LB 574 does — that it made exceptions for the life and health of the mother, for rape and for incest, and that it could save hundreds of lives, even if some wanted a broader ban.

For her, the next steps in the fight are to win hearts and minds in the state with education about what an abortion is and what it does. She said Nebraskans have lived for five decades with a national right that is no more.

“We have had a culture … of, ‘Do not take my rights from me,’” Danek said. “It’s going to take a lot of effort to change minds and hearts so that they see abortion should be unthinkable.”

Nationally, Dobbs and subsequent changes in state law have already led to 25,000 fewer people being unable to legally access an abortion, according to the latest report from the Society of Family Planning. The group’s report shows Nebraska saw a small increase in abortions sought after Dobbs.

Abortion still legal in Nebraska

The fact that Nebraska remains a state where abortion is still legal at all is a small relief to abortion-rights advocates who fought conservative senators all session, including State Sen. Megan Hunt of Omaha.

Her goal after Dobbs was “to block a total abortion ban in Nebraska, and we did that.”

“The people of Nebraska felt the same urgency, despair, and resolve, and we accomplished that together by blocking a bill, for the second year in a row, that would have banned abortion in Nebraska,” Hunt said of the cardiac ban.

Albrecht said she hopes the Legislature will keep pressing for change. She said conservatives will be asked whether they want to act or not on an issue that is a bedrock issue to many of the Republican Party’s most frequent voters.

“I can only hope the people will open their eyes, and if they do feel a certain way and care about their families and their kids and their state, you’re going to elect the person who most aligns with you,” she said.

Riepe still holds some cards

Riepe, who may hold the cards until the 2024 election for additional restrictions on abortion, said he would rather the Legislature find ways to improve LB 574’s abortion language rather than try to go farther than his constituents want.

He said he would like to see clearer language — closer to the amendment he proposed to the cardiac bill — specifying that doctors are not at risk to criminal or civil penalties. And he would like to clarify exceptions for fatal fetal anomalies.

“We haven’t even had a chance to sit down over a cup of coffee and talk about what we think we might do next year,” he said of other senators he may work with. “We’re still in the recovery room.”

Examiner intern Zach Wendling contributed to this report.