To Sign or not to Sign: Protect the Right to Abortion – Constitutional Initiative 

Abortion. To some, it’s a necessary tragedy. To some, it’s the taking of a life and the wounding of another. And to some, it’s a foundational right to freedom and autonomy.  

Perhaps no other issue highlights the needs of families in a way that touches lives so intimately. Perhaps no other issue divides passionate, compassionate people so drastically. How can we support women experiencing unwanted pregnancies and the men who care about them? How can we ensure that every child is wanted? Despite the desire to do what’s best for the women, children, and families involved, we have conflicting answers to the question of what role, if any, abortion should play.  

This year, voters may be approached by petitioners that seek to add the “Protect the Right to Abortion – Constitutional Initiative” to the ballot. This initiative, sponsored by Dr. Andy Robertson, Jasmine Smith, and Dr. Carolyn Doherty, would guarantee and expand abortion access in Nebraska through a constitutional amendment: 

“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 and 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’s sustained survival outside the uterus without the application of extraordinary medical measures.” 

History of Nebraska Abortion Law 

In its recent history, Nebraska has considered various pieces of legislation on abortion, including the following time limits: 

•  6 weeks, when the embryo’s heart begins to beat (did not pass) 
• 12 weeks, the first trimester (current law) 
• When the fetus can feel pain (timing for this is disputed, but Nebraska previously limited abortion to 20 weeks on this basis) 
• Viability, when the fetus can survive outside the womb (currently being proposed) 

In May 2023, Nebraska passed its current abortion law: LB574, the Preborn Child Protection Act and the Let Them Grow Act. The first section permits abortion through 12 weeks, with exceptions for rape, incest, and the physical health of the mother. The second part of LB 574, the Let Them Grow Act, restricts gender-altering medical procedures for minors. 

In June 2023, Planned Parenthood of the Heartland, and Sarah Traxler, chief medical officer of Planned Parenthood North Central States, brought a lawsuit against the State of Nebraska. Their suit claims that LB574 is unconstitutional because Nebraska’s constitution requires that each law address only one subject. 

A Lancaster County Court judge ruled against the plaintiffs on August 11, 2023. They filed an appeal on August 18, 2023. At the time of publication, 12 weeks is still the legal limit for abortion in Nebraska.  

Proposed Amendment: Analysis 

The Amendment centers on two abortion rules that tend to be popular: a provision for the life and health of the mother, and allowing abortion until viability, commonly understood as the time when the fetus can live outside the embryo.  

As with any law, however, it is important for voters to consider the wording as they assess whether this Amendment will result in abortion regulations they support.  

Life and Health of the Mother: The Amendment allows abortion “when needed to protect the life and health of the mother.” However, this Amendment’s use of the clause “to protect the life and health of the mother” differs from current Nebraska law.  

Current Nebraska law allows abortion at any point when there are physical health risks (such as pre-eclampsia, placental abruption, and ectopic pregnancies), but excludes mental health risks (such as the mother feeling suicidal).  

This Amendment, in contrast, does not distinguish between physical and mental health risks.   

Whether or not mental health should be a reason to allow abortion is debated. This distinction, or other issues regarding the life and health of the mother, may be one priority that voters wish to weigh.  

Viability: The Amendment defines “viability” as “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’s sustained survival outside the uterus without the application of extraordinary medical measures.” At least three interconnected issues can be explored here.  

• First, what does “significant likelihood” mean? Would it be defined by the functionality of certain organs? Would it be a percentage chance of survival? Would there be some other method of determining “significant likelihood”?  
• Second, who will determine whether the survival of the fetus is likely? According to the Amendment, the chances of survival would be judged by “the patient’s treating health care practitioner.” The qualifications of the practitioner are not defined; the practitioner could be a primary care doctor, OB-GYN, midwife, doula, or abortionist.  
• Third, what “medical measures” are defined as “extraordinary”? A similarly-worded constitutional amendment in Michigan defined “extraordinary medical measures” as “any service or intervention not commonly recognized in Michigan’s neonatal care facilities for premature births.” However, Nebraska’s proposed Amendment leaves the question open to the interpretation of the “treating health care practitioner.” 

Under the wording of the Amendment, it is possible that abortion would be permitted through all 9 months, with little oversight into how such decisions are made. It is also possible that the Legislature could move to provide clarity and oversight, but any bills they pass may or may not line up with a voter’s vision of “viability” and “protecting the life and health of the mother.”  

In determining whether to sign or not to sign, voters who support abortion must decide whether the broad phrasing of this Amendment is needed to cover the circumstances in which a woman may find herself, or whether more guidelines, oversight, and protections against conflicts of interest should be defined. Those who are against abortion are not likely to sign this petition, but that doesn’t mean that they should ignore it. By discussing the questions that the Amendment raises, perhaps Nebraskans can come closer to solutions for both pregnant women and the fetuses they carry. 

Acknowledgement: Thanks to Biz Rapp for her review and suggestions. 

Note: VIP reached out to the petition’s sponsors but did not receive a response to questions in time for publication. If a response is received later that points out inaccuracies or adds important information, we will update this post. 

Research and writing by Vickie Hecker. Vickie is a state employee, but her postings on this site do not speak for the views of the state, its customers, clients, suppliers, or employees. Any links to state sites are provided for informational purposes only.