Abortion Providers: Restrictions
Restrictions on Who May Provide Abortion Services
Nebraska prohibits certain qualified health-care professionals from providing abortion services.
Only a physician licensed by the state to practice medicine in the state may provide abortion care. Neb. Rev. Stat. §28-326(8) (Enacted 1978), Neb. Rev. Stat. § 28-335 (Enacted 1977).
No abortion may be provided after viability unless necessary to preserve the woman’s life or health. In accordance with the physician’s sound medical judgment, all reasonable precautions shall be taken to ensure the protection of the fetus, compatible with preserving the woman’s life or health. Neb. Rev. Stat. §§ 28-329 (Enacted 1977; Last Amended 1984), 28-330 (Enacted 1977; Last Amended 1984).
A court held that a previous version of this law was unconstitutional because it lacked a sufficient scienter (intent) requirement and the law’s previous definition of viability was overly broad. Schulte v. Douglas, 567 F. Supp. 522 (D. Neb. 1981), aff’d sub nom. Women’s Servs., P.C. v. Douglas, 710 F.2d 465 (8th Cir. 1983).
NARAL Pro-Choice America supports the legal framework established in Roe v. Wade. Regarding the right to abortion in the third trimester, Roe allows for restrictions on post-viability abortion so long as they contain adequate exceptions to protect the woman’s life and health. However, many states have bans with inadequate exceptions, no exceptions at all, or define viability as occurring at a particular point in pregnancy. A state may not prohibit abortion prior to viability, which is that point at which a fetus is capable of "meaningful life" outside a woman’s body. Roe v. Wade, 410 U.S. 113, 163 (1973). Because viability is a point that varies with each pregnancy, states may not declare that it occurs at a particular gestational age.
NARAL Pro-Choice America does not oppose restrictions on post-viability abortion, such as Nebraska’s, that contain adequate exceptions to protect the woman’s life and health.
Abortion Bans Throughout Pregnancy: Ban by Week
Nebraska outlaws abortion after 20 weeks without an adequate exception to protect women’s health or for cases in which the pregnancy was the result of rape or incest. Neb. Rev. Stat. §§ 28-3,102 to 111 (Enacted 2010).
Nebraska’s law makes abortion after 20 weeks a felony, unless necessary to preserve the woman’s life or to avert serious risk of substantial and irreversible physical impairment of a major bodily function. Physicians in violation of the law would also be subject to up to five years imprisonment and/or fines up to $10,000, and disciplinary action which may include license suspension or revocation. In addition, the law allows the parents or husband of the pregnant woman to bring a civil suit for damages against the physician. It also allows the woman, her parents, her husband, her siblings, her other health-care providers, or the state attorney general to file for injunctive relief blocking the abortion provider from providing future abortion care after 20 weeks. Neb. Rev. Stat. §§ 28-3,102 to 111 (Enacted 2010).
Abortion Bans Throughout Pregnancy: Procedure Ban
Nebraska also has an unconstitutional and unenforceable ban that outlaws abortion procedures as early as 12 weeks, which makes any abortion procedure that falls within a broad definition a felony, and subjects physicians who provide such a procedure to automatic license suspension, license revocation, or other professional sanction. The law has an exception if an abortion is necessary to save a woman’s life 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 (Enacted 1997), 28-328 (Enacted 1997), 38-179(7) (Enacted 1997), 38-196 (Enacted 1997).
The U.S. Supreme Court struck down this ban because it: (1) imposed an undue burden upon a woman’s right to choose because it banned more than one procedure and (2) had no 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.
There is also a Federal Abortion Ban, which applies nationwide regardless of state law. The federal ban prohibits certain second-trimester abortion procedures and has no 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.
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; (3) the medical risks associated with carrying the pregnancy to term; (4) that she cannot be forced or required by anyone to have an abortion and is free to withold or withdraw her consent for an abortion; and (5) that research indicates that mifepristone alone is not always effective in ending a pregnancy and that she may have a viable pregnancy after take mifepristone. If she changes her mind and wants to continue her pregnancy after taking mifepristone, information on finding medical assistance is available on the web site of the Department of Health and Human Services. 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. Neb. Rev. Stat. § 28-326 (Enacted 1993; Last Amended 2000); Neb. Rev. Stat. § 28-327 (Enacted 1993; Last Amended
2019); Neb. Rev. Stat. § 28-327.01 (Enacted 1993; Last Amended 2019).
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.
Furthermore, the state mandates that a health-care provider evaluate a patient for any "physical, psychological, emotional, demographic, or situational" risk factors that have been found in any peer-reviewed journals to be statistically associated with abortion. The provider must then inform the woman and the physician who will provide the abortion care of the results of the evaluation and inform the woman of any complications associated with any risk factors identified. In order to proceed with the abortion, the physician must determine that continuing the pregnancy would pose a greater risk than providing abortion care. Failure to identify all of the possible risk factors exposes the physician to civil suits and other penalties.
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 2010); Neb. Rev. Stat. § 28-327.01 (Enacted 1993; Last Amended 2010).
Additionally, the Department of Health and Human Services must track every attempt at continuing a pregnancy after taking mifepristone as discussed in the counseling. Neb. Rev. Stat. Ann. § 28-345 (Last Amended 2019).
Nebraska requires a woman seeking an abortion to wait at least 24 hours between the time she receives biased-counseling materials and when she can get the procedure. Neb. Rev. Stat. § 28-326 (Enacted 1993; Last Amended 2000); Neb. Rev. Stat. § 28-327 (Enacted 1993; Last Amended 2010); Neb. Rev. Stat. § 28-327.01 (Enacted 1993; Last Amended 2010).
Insurance Coverage for Abortion
Prohibits Abortion Coverage in the State
Does Nebraska prohibit statewide private insurance coverage of abortion services?
Yes. Private health-insurance plans, contracts, and policies offered in the state may not include abortion coverage, with an exception only to save a woman’s life. Abortion coverage may be obtained only through an optional rider for which an additional premium is paid. However, insurers are not required to offer such riders and there is no evidence that such separate policies exist. (Even if they did exist, offering women the "option" to pay for separate abortion coverage is a false promise because no one plans for an unplanned pregnancy.) Neb. Rev. Stat. §§ 44-8402, -8403 (Enacted 2011).
Prohibits Abortion Coverage in the Insurance Exchange
Does Nebraska expressly prohibit plans in its state exchange from covering abortion services?
Yes. Health-insurance policies offered in the state health-insurance exchange may not include abortion coverage, with an exception only to save a woman’s life. Nothing in the law prohibits the purchase of abortion coverage outside the exchange through an optional rider for which an additional premium is paid. However, insurers are not required to offer such riders and there is no evidence that such separate policies exist. (Even if they did exist, offering women the "option" to pay for separate abortion coverage is a false promise because no one plans for an unplanned pregnancy.) Neb. Rev. Stat. §§ 44-8402, -8403 (Enacted 2011).
Prohibits Abortion Coverage for Public Employees
Does Nebraska expressly prohibit insurance plans for public employees from covering abortion services?
Yes. Group-insurance contracts and health-maintenance agreements providing health-care coverage paid for in whole or in part with public funds may not include abortion coverage, with exceptions only to save a woman’s life or to cover medical complications arising from an abortion. Nothing in the law prohibits the purchase of abortion coverage outside the exchange through an optional rider for which an additional premium is paid solely by the employee. However, insurers are not required to offer such riders and there is no evidence that such separate policies exist. (Even if they did exist, offering women the "option" to pay for separate abortion coverage is a false promise because no one plans for an unplanned pregnancy.) Neb. Rev. Stat. § 44-1615.01 (Enacted 1981).
Abortion Coverage for Low-Income People
Restricts 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), at http://www.sos.state.ne.us/rules-and-regs/regsearch/Rules/Health_and_Human_Services_System/Title-471/Chapter-10.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).
Young People & 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? Notarized consent.
Who must give consent? One parent and the minor woman.
Are there other trusted adults who may give consent instead? Yes. If the young woman declares in writing that she has survived sexual or child abuse by one of her parents, the attending physician can obtain notarized written consent from one of her grandparents.
What is the process for providing notification? A young woman may not obtain an abortion until the attending physician has obtained notarized parental and patient consent.
May the parental mandate be waived if a young woman is a survivor of rape or incest? Yes, by declaring to the proper authorities that she is a victim of sexual abuse by her parent or guardian. She then must either obtain consent from a grandparent or through judicial bypass.
May the parental mandate be waived if a young woman is a survivor of child abuse? Yes, by declaring to the proper authorities that she is a victim of abuse or neglect by her parent or guardian. She then must either obtain consent from a grandparent or through judicial bypass.
May the parental mandate be waived if a young woman’s health is threatened? Yes-in the case of an immediate medical emergency or through judicial bypass.
May the parental mandate be waived under any other circumstances? Yes, the young woman may try to obtain permission from a judge (judicial bypass).
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 sufficiently mature and well-informed to give consent, was recently physically or sexually abused or neglected by a parent or guardian, or that an abortion without parental consent 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, but in In re Anonymous 5, Justice Connelly states that a portion of the law that preducates minors in forster care from accessing abortion in the state is unconstitutional. 286 Neb. 640, 838 N.W.2d 226 (2013).
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 2011).
Insurance Coverage & Contraception
No state measure.
Contraception Coverage for Low-Income People
No state measure.
No state measure.
Other Important Issues
No state measure.
Refusals & Guarantees
Refusals of Medical Care
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? Allows individuals to refuse to participate in abortion services. 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.
Allows hospitals, institutions, and other facilities to refuse to admit a woman for the purpose of providing abortion care or to allow the provision of abortion services. The refusal of a hospital, institution, or facility to provide abortion services 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. Ann. § 28-337 to 341.
Counseling & Referral Bans
Counseling & Referral Ban
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 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. Neb. L.B.657 (2015).
No funds expended or received by or through the Women’s Health Initiative Fund shall be used for abortion or referrals. Neb. Rev. Stat. 71-705 (Enacted 2000; Last Amended 2005).
No funds disbursed under the federal Title X program may be distributed to an organization that refers for abortion. Neb. L.B. 944 (2018).