Lawmaker reviewing options after proposal stalls to amend Nebraska abortion ban

LINCOLN — Further legislative changes to Nebraska’s abortion laws appear unlikely in 2024 after a proposal stalled Tuesday in the Judiciary Committee.

State Sen. Merv Riepe of Ralston introduced Legislative Bill 1109 to add a fatal fetal anomaly exception to the state’s 12-week abortion ban, timed at gestational age. Under Riepe’s bill, termination would be allowed for a fatal anomaly up to 20 weeks post-fertilization. Anomalies are usually diagnosed between 18 and 22 weeks post-fertilization.

At least two physicians would need to confirm a fatal diagnosis, determining that the pregnancy would result in the infant’s death at birth or “inevitably thereafter.”

A fatal diagnosis would not include Down syndrome or developmental disabilities, Riepe said. 

“I failed last session to hold to my expectations, and we have an incomplete law,” Riepe told the Judiciary Committee at the bill’s Feb. 22 hearing. “I feel compelled to right a wrong.”

‘Have to look at our options’

At the bill’s hearing, multiple women testified about their pregnancies with a fatal anomaly diagnosis, some of whom carried their pregnancies to term knowing their baby would die. Riepe said the family should decide the next steps under these circumstances.

“It’s not the state’s decision,” Riepe said. “Get out of the way.”

The eight members of the Judiciary Committee divided their votes 3-2 with three “present, not voting,” meaning that LB 1109 fell two votes short of advancing. 

“We’re going to have to look at our options,” Riepe told the Nebraska Examiner.

One option is a pull motion, taking the bill straight from the Judiciary Committee to the full Legislature. That would require at least 25 votes, and Speaker John Arch of La Vista would need to schedule the motion.

A second component of the bill would repeal certain criminal penalties for doctors who perform abortions, a provision that Riepe signaled would be a priority this year so he would vote for last year’s eventual legislation. 

“My commitment to myself was that I was going to go in and try to fix this stupid thing,” Riepe said, noting some lawmakers felt he “rained on their parade.”

State Sen. Carol Blood of Bellevue said she couldn’t support the bill that medical professionals said was murky on fatal fetal anomalies. The Nebraska Medical Association supported the repeal of criminal penalties but was neutral on the additional exception.

Failure could empower ballot effort

Riepe said the Legislature has a “broken bill,” but he added that if he hadn’t stopped LB 626 last year, a court might have. Should LB 1190 fail this year, Riepe said, he doesn’t lose — the women of Nebraska do.

The senator did rule out a petition campaign as a possible next step.

Opponents of additional abortion restrictions, including last year’s law, have mobilized through the Protect Our Rights abortion-rights campaign to let voters decide this fall whether to include abortion rights in the Nebraska Constitution.

Riepe has said LB 1109’s failure could empower abortion-rights supporters.

“I’m disappointed. I tried,” Riepe said. “I don’t know what more I could have done other than not be me.”