VIP recently became aware of an abortion petition that counters the proposed constitutional amendment “Protect the Right to Abortion” (PRA) amendment discussed in March’s blog. The new amendment is part of a campaign begun by the organization Protect Women & Children Initiative, a group of medical professionals.  It is titled “Protect Women and Children” (PWC). The "Protect Women & Children Initiative” states the following:

Article One 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.”

In other words, instead of constitutionally protecting abortion as the PRA would do, the PWC would constitutionally protect unborn children after the first trimester (with carveouts for cases of medical emergency, incest, or rape).

Current Nebraska Law: LB574

The PWC was written to be consistent with current Nebraska abortion law. These parts of the law relate to VIP’s analysis.

· Abortions may not be performed past 12 weeks except in cases of incest, rape, or medical emergency.

· A medical emergency is defined as a threat to the woman’s physical health, and does not include mental health, financial, or social factors.

· The physician must document their treatment. Their treatment decisions must be “a medical judgment that could be made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.”

Analysis and Comparison Because VIP has already provided an analysis of the PRA, here we will compare language used between the two amendments, and their implications.

First: What should the government’s role be? The PRA seeks to establish “the fundamental right to abortion, without interference from state or its political subdivisions” for “all persons.” In contrast, PWC, because it seeks to "protect unborn children in the 2nd and 3rd trimesters,” requires government regulation. For this reason, the PWC omits the phrase “all persons” due to their goal of protecting some persons, including women, from abortion.

· To supporters of the PRA, abortion laws hurt women by restricting access to abortion. They see abortion as necessary to women’s health. The PRA would establish a

fundamental right to abortion with no government regulation. Several states have passed laws restricting abortion: informed consent; parental notification; laws that require abortionists to have admitting privileges at hospitals; and laws requiring health and sanitation features in abortion facilities. Some see these laws as unreasonable, existing only to make abortion more difficult. (Nebraska’s legal restrictions on abortion include the 12-week gestational limit, a mandatory 24-hour waiting period, a requirement that a physician prescribe and be present for a medication abortion, and restrictions on insurance coverage for abortion.) Supporters of the PRA believe that abortion laws hurt pregnant women by forcing them into difficult situations. For example, some women have had to travel to other states for abortions because abortionists and facilities have been shut down in their own states. Others have had to reveal their pregnancy to people who do not support them, or to have the child even if they don’t think they can care for the child. To avoid these difficulties, the PRA would not allow Nebraska to impose any restrictions. Abortion access would increase, as facilities and abortionists could not be required to meet standards they believe are unnecessary. Women with fewer resources, such as some single mothers or pregnant teens, could get abortions more easily and privately.

· On the other hand, to supporters of the PWC, regulations are safeguards to help women by protecting them and their unborn children. The Protect Women and Children Initiative pointed out to VIP that “all persons” in the PRA includes minors, sex-trafficked and abused women, and other vulnerable populations. The organization I’ve Got a Name demonstrates how Nebraska draws sex trafficking all along the I-80 corridor. Supporters of the PWC believe that police should be allowed to intervene in situations where trafficked or abused women are forced into abortions to keep them trapped in their abusive situations. Though Nebraska does not have some of the laws discussed above, the PWC would allow Nebraska to create them. For example, informed consent laws and parental consent laws could give low-income pregnant women and teens more information, options, and support. In addition, requiring qualifications for abortionists or standards for abortion facilities could protect women from under-trained practitioners, or unsanitary facilities.

Second: Who may perform a later-term abortion? What qualifications and accountability should be required of people who decide when to perform an abortion past viability (in the case of the PRA) or in the second or third trimester (in the case of the PWC)? · As discussed in our previous post, the PRA refers to “the patient’s treating health care practitioner.” It could be anyone with a health care position, regardless of their level of training—a nurse, doula, midwife, or the abortionist. Because the definition of “viability” is broad, it would be difficult to challenge the practitioner’s decision.

· The PWC, because it uses the term “medical emergency,” would maintain current Nebraska law. Treatment for a “medical emergency” for a pregnant woman must be determined by a physician. This physician must know the health history and current condition of the patient. The physician is kept accountable because they must report the reasons for their treatment and ensure that another reasonably-prudent physician could agree with their decision.

Third:  What reasons would allow a later-term abortion to be performed?

· In the PRA, exceptions for abortion after viability are made “for the life and health of the mother.” Those who support this clause should understand how broad the legal definition of “health” is. The definition of “health” in regard to abortion was created in the Supreme Court case of Doe vs. Bolton. It allows “a licensed practitioner of medicine” to make “the medical judgment ... in the light of all factors - physical, emotional, psychological, familial, and the woman's age - relevant to the wellbeing of the patient. All these factors may relate to health.” [emphasis ours].

· The PWC does not include the phrase “life and health of the mother.” So, it does not use the definition of “health” given in Doe vs. Bolton. Instead, it uses the term “medical emergency,” relying on current Nebraska law, which limits “medical emergency” to physical threats to the mother.

For further context, voters concerned about reasons for later-term abortions might consider the following statistics from Nebraska’s Department of Health and Human Services’s 2022 report on abortions. These numbers will be slightly off because some women reported more than one reason for their abortions.

     o Of the 2,547 abortions reported to the state, 65 abortions were due to danger to the mother’s life or mother’s health (2.5%).

     o Mental health was cited as the cause for 103 abortions (3.9%).

     o Fetal anomalies accounted for 12 abortions, or 0.4%.

     o 89.3% of abortions in Nebraska were performed in the first 12 weeks.

     o Sexual assault was cited as the cause for 7 abortions, and incest for none (0.3%).

Conclusion

The health of women and children is paramount to all sides of the abortion debate. Exceptions for health, incest and rape are often brought to the center of the discussion. The question of what time frames are too limiting is another focus. But, since nearly 90% of Nebraska’s abortions are performed in the first trimester, and 72.3% of Nebraska’s abortions are not performed for health reasons, Nebraskans must think about other factors.

Socioeconomic support for families; reproductive rights and practices, abuse and trafficking; protections and standards for medical professionals; and the value of children’s lives—are all pieces of this issue, and there are others. In the debate about abortion, it is easy to lose sight of the individual men, women, and children involved. What is the best way to support them? In determining which petition to sign, or whether to sign at all, an educated understanding of the difference between these amendments is critical.

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.