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Sorting through Nebraska’s abortion ballot initiatives

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Sorting through Nebraska’s abortion ballot initiatives

Jun 13, 2024 | 6:00 am ET
By Aaron Sanderford
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Sorting through Nebraska’s abortion ballot initiatives
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Three groups are circulating petitions in Nebraska to amend the state constitution on the issue of abortion. (Courtesy of Getty Images)

LINCOLN — Nebraska voters who want to weigh in this November on the future of abortion in the state have three petitions to consider signing.

One group that is circulating petitions wants to make abortion a state constitutional right. Two other groups circulating petitions both oppose abortion. But their petitions approach the path to further restrictions differently.

Organizers of all three petition initiatives have until July 3 to turn in signatures from 10% of Nebraska registered voters, or about 123,000 people, to the Secretary of State’s Office. Of those, signatures are required from at least 5% of registered voters in at least 38 counties.

The Nebraska Examiner spoke recently with lawyers and legal experts, reproductive rights advocates and advocates for restricting abortion about each proposed amendment. 

This is a summary of the language in each of the petition efforts, what each would do, what complications each might cause and some common criticisms of them.

Protect the Right to Abortion petition

What the language says: Article I of the Nebraska Constitution shall be amended by adding a new section 31 as shown: All persons shall have a fundamental right to abortion until fetal viability, or when needed to protect the life or health of the pregnant patient, without interference from the state or its political subdivisions. Fetal viability means the point in pregnancy when in the professional judgment of the patient’s treating health care practitioner, there is a significant likelihood of the fetus’ sustained survival outside of the uterus without the application of extraordinary medical measures.

What it would do: Codify the right to an abortion in the Nebraska Constitution similar to how the U.S. Supreme Court decided Roe v. Wade in 1973, before the court overturned Roe with the Dobbs v. Jackson Women’s Health case in 2022. Most medical experts set the age of fetal viability between 22 and 24 weeks gestation. 

What it might cause: Any state restrictions or laws passed on abortion-related care since Roe could be overturned by the courts, and no new state restrictions could be passed. This could jeopardize parts of state law addressing abortion-related care, including the state requirement that women be shown an ultrasound before having an abortion and the requirement that parents be notified if a minor is pursuing an abortion.

Common criticisms: Some worry that abortion-care clinics and providers could use the law to allow abortions later than 22-24 weeks by discounting fetal viability. They argue the flexibility of interpretation would rest almost entirely with medical providers. Others question whether a mandated 24-hour waiting period before having an abortion could be put at risk.

Notable supporters: Planned Parenthood, ACLU Nebraska, Nebraska Appleseed Action, I Be Black Girl, Women’s Fund of Omaha, former Omaha Mayor Jim Suttle, University of Nebraska Regent Barbara Weitz and her daughter, nonprofit president Katie Weitz.

Protect Women and Children petition

What the language says: Article I of the Nebraska Constitution shall be amended by adding a new section 31 that states as follows: Except when a woman seeks an abortion necessitated by a medical emergency or when the pregnancy results from sexual assault or incest, unborn children shall be protected from abortion in the second and third trimesters.

What it would do: Put into the state constitution a maximum limit or cap on how long into a pregnancy an abortion could be legal. It would outlaw most abortions after the first trimester. Most medical experts set that timing between 12 and 14 weeks gestational age. Lawmakers could not revert, for instance, to the state’s former 20-week ban.

What it might cause: The language of this amendment would allow the Legislature to restrict abortion further. Lawmakers were a single vote away in 2023 from passing a ban tied to when an ultrasound can detect fetal cardiac activity, at about six weeks. The filibuster that prevented that measure’s passage could be changed.

Common criticisms: Some have argued that the amendment language is confusing on purpose and that some organizers seek to convince signers that it would protect Nebraska’s current law when it would not. Nebraska currently restricts abortion to 12 weeks gestational age, or about 10 weeks after conception. 

Notable supporters: Nebraska Catholic Conference, Nebraska Right to Life, Nebraska Family Alliance, U.S. Sen. Pete Ricketts, Sandhills Publishing owner Tom Peed and his son and fellow business owner Shawn Peed.

Choose Life Now petition

What the language says: Article I of the Constitution of Nebraska shall be amended by adding a new section 31 as shown: A preborn child at every stage of development is a person. Wherever under Nebraska law the term “person” is used or implied, it shall include such a child.

What it would do: The “personhood” amendment would grant the legal status of a child or person to every fetus at all stages of development. That means any protection granted to people in state criminal and civil law would apply to a fetus. It would outlaw all abortions, with no exceptions.

What it might cause: It could spur criminal prosecution of women who have abortions. It could lead to child support payments for fetuses. It could create legal questions over which life the law would value more, a mother or a fetus. Local prosecutors would have to weigh how to apply the law. 

Common criticisms: Some argue it could lead to potential prosecution for miscarriages. Others have expressed concerns that the Legislature would have to pass a law to clarify that in vitro fertilization was still legal. 

Notable supporters: Rose Kohl, Dr. Jeanne Friesen and Dr. Robert Smith, the listed sponsors of the petition effort.