This story was originally published in Flatwater Free Press.
A six-week abortion ban that may become Nebraska law worries the state’s pre-eminent doctors’ organization, which fears doctors could risk felony charges if they violate it – even though criminal charges aren’t explicitly in the bill.
This ambiguity around criminal charges is one piece of some Nebraska doctors’ wider worry that the ban will cause a chilling effect for doctors and endanger their patients.
“We’re all going to be thinking in the back of our minds: Is this OK? Is my patient sick enough? Does this qualify as a medical emergency?” said Melissa Mathes, an OB-GYN in Omaha, mentioning an exception in the bill meant to save pregnant women from death or major physical impairment. “And there’s going to be pauses in care where we have to either get a second opinion or go to our ethics board…in our particular institutions or hospitals.
“But there’s going to be a delay in a patient’s care, and sometimes that delay, in our world, in obstetrics, a couple of hours or a day can be truly detrimental and potentially deadly for patients.”
The bill would ban most abortions after embryonic cardiac activity is detected, or roughly six weeks. That’s before many people find out they’re pregnant and would likely make the vast majority of legal abortions currently performed in Nebraska illegal.
Legislative Bill 626 previously appeared likely to get the 33 votes needed to overcome a filibuster. But on March 15, Omaha Republican Sen. Merv Riepe introduced an amendment that threw his support of the six-week ban – and thus its passage – into question.
Riepe expressed regret for co-sponsoring LB 626, but didn’t say he was pulling his vote for the bill. His amendment would instead change current law, which outlaws abortions after 20 weeks post-fertilization, to 12 weeks – or about 14 weeks gestational age.
Support for the six-week ban from roughly two-thirds of the state’s 49 senators may not align with Nebraskans’ feelings on the issue. A recent poll from the nonpartisan Public Religion Research Institute found that 54% of Nebraskans felt abortion should be legal in most or all cases. Just 11% said it should be illegal in all cases.
Senators who oppose the bill brought legal concerns surrounding LB 626 to the fore early in the ongoing legislative session.
It explicitly includes professional consequences for physicians, including losing their licenses – a hefty penalty on its own, doctors say.
But a law professor and lawyers in the Legislature who oppose the bill say criminal consequences, while not explicitly in the legislation, also can’t be ruled out.
“Whether it actually criminalizes this or not is a different question from whether this creates legal risk or not, and it certainly appears to be creating legal risk,” said Mailyn Fidler, a criminal law professor at the University of Nebraska-Lincoln’s College of Law.
One question is rooted in statute – part of a law passed in 1977. Its language is simple: “The performing of an abortion by using anything other than accepted medical procedures is a Class IV felony.”
The definition for “accepted medical procedure” was later removed from state law.
This year’s bill has lawmakers who oppose the bill and some doctors wondering: Does this new bill define an accepted medical procedure? And, if it does, does violating it amount to a felony?
“You are essentially establishing new elements to the crime… and exposing doctors to that criminal penalty,” said Sen. John Cavanaugh of Omaha, an attorney and registered Democrat. “This is the reason – the fundamental reason that abortion bills have historically been taken up in the Judiciary Committee – is because they interplay with other sections of the criminal code.”
Another attorney and Democrat, Sen. George Dungan of Lincoln, extended that to infer anybody involved when a person obtains an abortion – such as a scheduler or nurse – might be liable under the bill.
“It’s ambiguous at best as to whether or not the current pending criminal statutes are affected or are implicated in LB 626,” Dungan said. “And frankly, I guess that ambiguity is what causes me concern. Ambiguity oftentimes breeds fear, and fear can prevent people from acting.”
Bills often explicitly include language stating that an existing law doesn’t apply to the new legislation, Cavanaugh said. But this bill doesn’t have that. A court, then, would assume the Legislature knew about the existing law, he said, and intended it to be applied in this new context.
“There’s dozens of pages regarding civil and criminal penalties related to abortion care,” said Sen. Danielle Conrad of Lincoln, a Democrat and lawyer, in debate. “And there is no general repealer in LB 626. So to say that there’s no criminal penalties in LB 626 is disingenuous.”
The sponsor of the bill, Republican Sen. Joni Albrecht of Thurston, dismissed the concern and said the bill’s opponents are “desperate to find arguments” against it.
“LB 626 has no criminal penalties,” she said in a text message. “The idea that it would somehow trigger an old criminal statute passed in 1977 that’s meant to stop unprofessional and unsanitary procedures, and which has never been used to prosecute anyone, is absurd.”
Sen. Julie Slama of Dunbar, a Republican and paralegal who graduated law school last year, said in floor debate that the bill doesn’t have “any civil or criminal penalties attached to it.”
When asked why the bill doesn’t explicitly state that doctors won’t face criminal consequences, Albrecht said she believes doctors will be able to practice much as they do now.
“If they’ve read this bill and truly read the bill and asked questions about it – they shouldn’t feel a need to be concerned,” she said.
Efforts to move LB 626 to the Judiciary Committee failed. During its public hearing in the Health and Human Services Committee, five doctors, including one who is retired and one from Texas, testified in favor of the bill. Twenty-two Nebraska doctors and medical students testified against it, often stating that they believe the ban will harm patient care.
Doctors have also shared their concerns about potential criminal charges with the Nebraska Medical Association, the state organization that represents doctors of all types.
The worry: Existing criminal penalties could apply to “perceived violations” of LB 626, said Daniel Rosenquist, NMA’s president and a family practice doctor in Columbus. After reviewing the bill and seeking legal input from others, that concern was not resolved with “complete confidence,” he said.
“I know that there’s supposed to be protection in the legislation,” Rosenquist said. “The question is whether it is really, truly protective or not. And that’s for a judge to decide. That’s the problem.”
The American Congress of Obstetricians and Gynecologists, which opposes the bill, also alluded to criminal penalties in a prepared statement: “ACOG is also vehemently opposed to any legislation that would criminalize clinicians for provide (sic) patients with compassionate, evidence-based medical care,” it reads.
Fidler, the law professor, who has been critical of LB 626, said she thinks it’s a stretch that violating it would be a felony. But, she said, “We’re living in an age of stretches.”
“I think, you know, legal counsel would be right to be concerned about that,” she said. “But it’s a risk. I don’t think it’s clear that this bill defines a medical procedure.”
The top lawyer in the state, Nebraska Attorney General Mike Hilgers, declined to comment on this specific bill, saying he wouldn’t unless a state senator requested an AG opinion on legislation. The office doesn’t share when such a request has been made.
The current 20-week post-fertilization ban includes that doctors who violate it are guilty of a Class IV felony. Riepe’s amendment does not appear to change that aspect of current law.
Even the threat of criminal charges would be detrimental to patient care, Rosenquist said in his testimony.
A recent NPR report documented that sort of chilling effect among Texas doctors: Fear among doctors there, according to the story, can be powerful enough that they avoid saying the word “abortion” while essentially speaking in code with their patients.
Texas passed perhaps the most well-known six-week ban in 2021 and allowed private citizens to sue doctors who violate it. A “trigger” law banning almost all abortions has gone into effect since.
Five women who were denied abortions during medical crises announced a lawsuit against Texas last week.
Idaho has a total ban in place with affirmative defenses in court for rape, incest and saving a pregnant person’s life. The Idaho Capital Sun reports that doctors have left the state due to that ban’s passage – and that a hospital recently stopped offering obstetrical care altogether, citing doctors leaving the state among its reasons.
The Nebraska six-week ban bill includes language meant to exempt situations like medical emergencies, rape and incest. But doctors here are voicing concerns around those exceptions.
Jennifer Griffin, OB-GYN and medical director of Nebraska Medicine’s Olson Center for Women’s Health, provided examples in her testimony of scenarios that she says wouldn’t fall under that exception as it’s currently written – including a patient whose water breaks early in pregnancy, in which case “the chance of continuing the pregnancy to viability is very low” while the woman is “at risk of serious complications.”
That was the case for one of the plaintiffs in the Texas lawsuit, who went septic before the hospital agreed to induce labor.
“At Nebraska Medicine, we do not provide elective termination of pregnancy,” Griffin said. “Our position on LB 626 should not be interpreted to reflect a position on abortion. But we have very grave concerns about ways in which this legislation will delay and diminish care available to our patients.”
Three doctors Flatwater Free Press spoke with for this story, all of whom grew up in Nebraska, looked upon their future here with trepidation if the bill passes. An Omaha OB-GYN said she’d consider leaving, another said it would become “really challenging” for her to stay and do her job and an Omaha pediatrician said, if not for family here, she wouldn’t have returned to Nebraska after living out of state.
Not every Nebraska doctor is worried about the bill’s potential passage.
The handful of doctors who testified in favor of the six-week ban contradicted concerns raised by the other testifying doctors. Sean Kenney, an OB-GYN and maternal-fetal medicine specialist in Lincoln, specifically took issue with the example of women with ruptured membranes.
“LB 626 would not compromise the physician’s ability to take care of these women,” he said. “We will do whatever it takes to take care of women and provide lifesaving care.”
Albrecht, too, doesn’t buy the concerns around a chilling effect. She said she talked to doctors and a lobbyist from the NMA before this session and believes she addressed all their concerns.
But Mathes said that she’s already experiencing the effects of the proposed six-week abortion ban – even though it isn’t law. Some pharmacies have stopped filling prescriptions for misoprostol, Mathes said, a medication that can be used for abortion.
Mathes said she prescribes the medication for miscarriages.
“I can’t imagine being told your pregnancy doesn’t have a heartbeat then being hassled at the pharmacy,” she said. “It feels dirty. It feels wrong.”
The Flatwater Free Press is Nebraska’s first independent, nonprofit newsroom focused on investigations and feature stories that matter.