Abortion Ban

AFTER 12 WEEKS

Nebraska's unconstitutional and unenforceable ban outlaws abortions performed as early as twelve weeks.  Neb. Rev. Stat. §§ 28-326(9) (Enacted 1997), 28-328 (Enacted 1997), 71-148(15) (Enacted 1997), 71-155 (Enacted 1997).

By a narrow 5-4 majority, the United States Supreme Court struck down Nebraska's ban for two reasons:  (1) the ban imposed an undue burden upon a woman's right to choose because it banned more than one procedure and (2) the ban lacked an exception to protect a woman's health.  Stenberg v. Carhart, 530 U.S. 914 (2000).  The Court made clear that a health exception must protect women against both the health risks caused by pregnancy and health risks caused by a regulation that forces a woman to choose a less medically appropriate procedure.

Nebraska's unconstitutional and unenforceable law makes the performance of any abortion procedure that falls within a broad definition a felony, and subjects physicians who perform such a procedure to automatic license suspension, license revocation, or other professional sanction, unless the procedure is necessary to preserve the life of a woman endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.  Neb. Rev. Stat. §§ 28-326(9) (Enacted 1997), 28-328 (Enacted 1997), 71-148(15) (Enacted 1997), 71-155 (Enacted 1997).

There is also a Federal Abortion Ban, which applies nationwide regardless of state law.  The federal ban prohibits the performance of certain second trimester abortions and does not contain an exception for a woman's health.  In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the Court has upheld a ban on a previability abortion procedure.  Click here to read more about the Federal Abortion Ban.

Biased Counseling & Mandatory Delay

A woman may not obtain an abortion until at least 24 hours after the attending or referring physician, or a physician's assistant or registered nurse, tells her: (1) the probable gestational age of the "unborn child"; (2) the medical risks associated with the procedure, including, when medically accurate, infection, hemorrhage, danger to subsequent pregnancies, and infertility; and (3) the medical risks associated with carrying the pregnancy to term. The person providing this information must have, at a minimum, training in sexual and reproductive health, abortion technology, contraceptive technology, short-term counseling skills, community resources and referral, and informed consent.

In addition, at least 24 hours prior to an abortion the woman must receive a state-mandated lecture that includes: (1) that medical assistance benefits may be available for prenatal care, childbirth, and neonatal care; (2) that the "father" is liable for child support, even if he has offered to pay for an abortion; (3) the name of the physician who will provide the abortion; and (4) that she has the right to review state-prepared materials that describe the "unborn child" and list agencies that offer alternatives to abortion.

The state-prepared materials must: (1) describe with pictures or drawings the anatomical and physiological characteristics of the "unborn child" at two-week gestational increments, including the possibility of survival; (2) describe the medical risks associated with carrying a child to term and the methods, medical risks, and "possible detrimental psychological effects" of abortion; and (3) provide a comprehensive list, with a 24-hour toll-free hotline, of public and private agencies and services, including adoption agencies, available to assist the woman through her pregnancy, upon childbirth, and while the child is dependent.  If the woman chooses to view the materials, she may not obtain an abortion until at least 24 hours after she has been given the materials in person or 72 hours after the materials have been mailed to her.

Neb. Rev. Stat. § 28-326 (Enacted 1993; Last Amended 2000); Neb. Rev. Stat. § 28-327 (Enacted 1993; Last Amended 1996); Neb. Rev. Stat. § 28-327.01 (Enacted 1993; Last Amended 1996).

Counseling Ban/Gag Rule

No funds appropriated or distributed under the Nebraska Health Care Funding Act may be used for abortion counseling or referrals.  Neb. Rev. Stat. § 71-7606 (Enacted 1998; Last Amended 2007).

Family-planning services provided by the Department of Health and Human Services to help ensure the success of a welfare recipient's self-sufficiency contract may not include abortion counseling or referrals.  Neb. Rev. Stat. § 68-1722 (Enacted 1994; Last Amended 2007).

No funds appropriated to the Department of Health and Human Services for STD services, pap smears, or treatments for the follow-up of abnormal pap smears may be used for abortion counseling or referrals.  L.B. 959, 100th Leg., 2nd Reg. Sess. (Neb. 2008) (Enacted 2008).

No funds expended or received by or through the Women's Health Initiative Fund shall be used for abortion referral or abortion services.  Neb. Rev. Stat. § 71-705 (Enacted 2000; Last Amended 2005).

Insurance Prohibition for Abortion

No group insurance contract or health maintenance agreement providing health care coverage paid for in whole or in part with public funds may include coverage for abortion except to preserve the woman's life or to cover medical complications arising from an abortion.  Abortion coverage may be obtained only if the insurer offers special coverage and the costs are borne solely by the employee. Neb. Rev. Stat. § 44-1615.01 (Enacted 1981).

Other Anti-Choice Law

Nebraska has created additional threats to privacy and choice by adding anti-choice language to its state code to express its opposition to abortion and its intent to restrict the right to choose to the greatest extent possible.

"[It is] the will of the people of the State of Nebraska and the members of the Legislature to provide protection for the life of the unborn child whenever possible; . . . the members of the Legislature expressly deplore the destruction of the unborn human lives which has and will occur in Nebraska as a consequence of [Roe v. Wade]." Neb. Rev. Stat. § 28-325 (Enacted 1997).

Refusal to Provide Medical Services

ABORTION REFUSAL CLAUSE

Nebraska allows certain individuals or entities to refuse to provide abortion services.

To whom does the refusal clause apply? Individuals, hospitals, institutions, or other facilities.

What does the refusal clause allow? No person may be required to participate in an abortion. The refusal of a person to participate may not be a basis for civil liability or discrimination. A person who has been discriminated against because of a refusal to participate may bring an action for damages, injunctive relief, costs, and attorneys' fees.

No hospital, institution, or other facility may be required to admit a woman for the purpose of performing an abortion or to allow the performance of abortion. The refusal of a hospital, institution, or facility to perform or allow an abortion may not be a basis for a cause of action.

Does the law require the refusing entity to notify the persons affected? Yes. A hospital, institution, or facility must inform the woman of its policy not to participate.

Are there circumstances under which a refusal clause may not be exercised? No.

Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No.

Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.

Neb. Rev. Stat. §§ 28-337 to -341 (Enacted 1977).

Restrictions on Low-Income Women's Access to Abortion

Nebraska prohibits public funding for abortion for women eligible for state medical assistance for general health care unless the physician obtains prior authorization and the procedure is necessary to preserve the woman's life or the pregnancy is the result of rape or incest.  Memorandum from Gerry A. Oligmueller, Acting Director, Neb. Dep't of Soc. Servs., to Robert J. Seiffert, Administrator, Med. Servs. Div. (July 28, 1995); Neb. HHS Finance and Support Manual, § 18-004.01(2) (Oct. 15, 2003), at http://www.sos.state.ne.us/business/regsearch/Rules/Health_and_Human_Services_System/Title-471/Chapter-18.pdf; Little Rock Family Planning Servs. v. Dalton, 60 F.3d 497 (8th Cir. 1995) (consolidated appeal of Arkansas and Nebraska cases, enjoining enforcement of a previous regulation that prohibited the use of public funds for abortion except in cases of life endangerment), rev'd in part, 516 U.S. 474 (1996).

Restrictions on Young Women's Access to Abortion

Nebraska law restricts young women's access to abortion.

Is the law enforceable?  Yes.

Who is considered a minor?  A young woman under the age of 18 who is not emancipated.

What is required - parental consent or parental notice?  Notice.

Who must be notified?  One parent.

Are there other trusted adults who may be notified instead?  No.

What is the process for providing notification?  A young woman may not obtain an abortion until at least 48 hours after written notice has been delivered personally by the attending physician or by certified mail to one parent, unless she obtains authorization in writing by a person entitled to notice.  If delivery is by certified mail, the time of delivery is noon on the next day on which regular mail delivery takes place.

May the parental mandate be waived if a young woman is a victim of rape or incest?  Yes, by declaring to the proper authorities that she is a victim of sexual abuse.

May the parental mandate be waived if a young woman is a victim of child abuse?  Yes, by declaring to the proper authorities that she is a victim of abuse or neglect.

May the parental mandate be waived if a young woman's health is threatened?  Yes, but only if the attending physician certifies in writing that "continuation of the pregnancy provides an immediate threat and grave risk to the life or health of the pregnant woman and there is insufficient time to provide the required notification."

May the parental mandate be waived under any other circumstances?  Yes, the young woman may try to obtain permission from a judge.

If a young woman must obtain permission from a judge, what is the process?  She must secure a court order stating either that she is mature and capable of giving informed consent or that an abortion without parental notice is in her best interests.  The minor must prove her case by clear and convincing evidence.  In re Petition of Anonymous 1, 558 N.W.2d 784 (Neb. 1997).

Are there other significant requirements under the law?  No.

Has a court considered the constitutionality of this law?  No.

Other information about the law:  None.

Neb. Rev. Stat. §§ 71-6901 to -6905, -6907 (Enacted 1991), -6906 (Enacted 1991; Last Amended 2005), -6908 (Enacted 1991; Last Amended 2006).

Targeted Regulation of Abortion Providers (TRAP)

Restrictions on Who May Perform Abortions

Nebraska prohibits certain qualified health care professionals from performing abortions.

Only a physician licensed by the state to practice medicine in the state may perform an abortion. Neb. Rev. Stat. §28-326(3) (Enacted 1978), Neb. Rev. Stat. § 28-335 (Enacted 1977).