Some doctors fear abortion ban could have chilling effect that would harm patient care

“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 … 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, roughly six weeks. That’s before many people find out they’re pregnant. It would likely make the vast majority of legal abortions currently performed in Nebraska illegal.

LB626 previously appeared likely to get the 33 votes needed to overcome a filibuster. But on March 15, Republican Sen. Merv Riepe of Ralston introduced an amendment that threw his support of the six-week ban – and its passage – into question.

Riepe’s 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 54% of Nebraskans felt abortion should be legal in most or all cases.

Senators who oppose the bill raised legal concerns surrounding LB626 early during this legislative session.

The bill includes penalties like a doctor losing their medical license. But criminal consequences, while not mentioned in the legislation, also can’t be ruled out, a legal expert said.

“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 some lawmakers and 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.

Another attorney and Democrat, Sen. George Dungan of Lincoln, worried that others involved during an abortion – even a scheduler or nurse – might be legally liable.

“It's ambiguous at best,” 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. This bill doesn’t. A court, then, could assume the Legislature knew about the existing law and intended it to be applied in this new context, he said.

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.

“LB626 has no criminal penalties,” she said. “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, Republican from Dunbar and a 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.”

Albrecht said she believes doctors will be able to practice much as they do now.

“If they've read this bill … and asked questions about it – they shouldn't feel a need to be concerned,” she said.

During its public hearing in the Health and Human Services Committee, five doctors, including one from Texas, testified in favor of the bill. Twenty-two Nebraska doctors and medical students testified against it, often arguing it will harm patient care.

Doctors have also shared 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 LB626, said NMA President Daniel Rosenquist, a doctor in Columbus. The NMA sought legal input on the bill.

“The question is whether it is really, truly protective or not,” Rosenquist said. “And that’s for a judge to decide. That’s the problem.”

Fidler, the law professor who has been critical of LB626, 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.”

Nebraska Attorney General Mike Hilgers declined comment on the bill, saying he wouldn’t weigh in unless a state senator requested an AG opinion on legislation.

The current 20-week post-fertilization ban says that doctors who violate it are guilty of a 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 testified.

A recent NPR report documented a chilling effect in Texas: Fear there is powerful enough that doctors avoid saying the word “abortion” while speaking in code with their patients.

Five Texas women who were allegedly denied abortions during medical crises announced a lawsuit last week.

Idaho has a total abortion ban, but 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 since that ban’s passage – and that a hospital recently stopped offering obstetrical care altogether.

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 she said wouldn’t fall under that exception – 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’s “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 LB626 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.”

Not every Nebraska doctor is worried about the bill’s potential passage.

Sean Kenney, an OB-GYN and maternal-fetal medicine specialist in Lincoln, testified in favor of the bill and also mentioned pregnant women with ruptured membranes.

“LB626 would not compromise the physician’s ability,” to care for these women, he said. “We will do whatever it takes…to provide lifesaving care.”

Albrecht, too, doesn’t buy the concerns around a chilling effect. She said she talked to doctors and an NMA lobbyist before the session and believes she addressed those worries.

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 prescribes misoprostol 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.”

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