Uncertainties ahead for abortion issue in Nebraska Legislature

Will special session be called? Can backers of ban on procedure round up the necessary 33 votes?
Abortion rights protest
Posted at 12:38 PM, May 21, 2022
and last updated 2022-05-21 13:38:33-04

LINCOLN, Neb. (Nebraska Examiner) — Forces on both sides of the abortion issue are girding for a likely special session of the Nebraska Legislature later this summer if, as expected, the U.S. Supreme Court strikes down Roe v. Wade.

But many uncertainties lie ahead, including whether a special session will even be called if the high court removes the legal right to abortion.

If a special session is called, it’s expected to happen in late August or early September, after a staunch, pro-life supporter, State Sen. Tom Brewer of Gordon, returns from a humanitarian trip to Ukraine.

Here are some key questions moving forward:

Are there enough votes in the Legislature to pass a ban on abortion?

Because it’s a controversial issue guaranteed to inspire a filibuster, it will take 33 votes in the 49-member Legislature to pass an abortion ban.

State lawmakers fell two votes short of that mark when debating a so-called “trigger” bill — which would have banned abortion if the Supreme Court struck down Roe — during the regular session, which ended last month. It’s unclear whether two more votes have materialized since then.

At least one more vote likely will be available. One opponent of abortion rights, State Sen. Rich Pahls of Omaha, was battling cancer during last month’s abortion debate and wasn’t able to vote on the trigger bill. Because Pahls died, Gov. Pete Ricketts will be able to fill that vacancy, and it’s almost guaranteed the new appointee will oppose abortion rights, as does the conservative Republican governor.

Two other senators, Steve Lathrop and Justin Wayne, were also absent for the vote last month. Whether they might provide a 33rd vote is unclear.

And there’s a wild card. There’s talk around the Capitol that a couple of senators who are term-limited may not want to come back to Lincoln for what would be an emotional special session. That could further cut into the 33 votes needed.

Sandy Danek, executive director of Nebraska Right to Life, said Friday there’s sure to be consideration of whether there are 33 votes to support a ban before incurring the cost of a special session. She said it’s possible it would be wiser strategically to wait until the 2023 regular session, after elections are expected to increase the conservative influence in the Legislature.

“Certainly, we need something on the books,” Danek said. “We also understand the political nature of things. We want the scenario with the best chance of success.” 

Omaha Sen. Megan Hunt, who led the opposition to the trigger bill, Legislative Bill 933, said some departing state senators are “annoyed” by the prospect of interrupting their retirement after an energy-sapping 2022 session. They don’t want to come back to vote on an issue that failed to pass just recently, she said.

A special session, Hunt said, would be “a huge waste of time” and a “political stunt” just prior to the November elections.

Don’t forget, Ricketts declined to call a special session a year ago on vaccine mandates because he didn’t see 33 senators in support of banning such mandates. Could that happen again?

What kind of bill will be introduced?

Danek, the Right to Life official, said a bill like LB 933 is being planned. Amending

the bill to include exceptions to allow abortions in the event of rape or incest, which could possibly draw more support for the bill, is not in the cards, she said.

“We are certainly working to change the outcome,” Danek said. 

Hunt said no amendments would make her a supporter of the ban on abortion.

“I don’t believe in compromising on this stuff,” she said.

Hunt was among the senators who criticized LB 933 as defining conception so broadly that it could outlaw in vitro fertilization and could make felons out of physicians who helped couples with fertility issues.

“If we cast this very wide definition of what abortion is, terminating any pregnancy, and define it when two cells meet, that’s going to have terrible consequences for public health in Nebraska,” Hunt said.

Danek disputed that interpretation of LB 933, saying that in vitro fertilization would not be impacted by the bill.

Will Roe v. Wade be struck down?

The draft Supreme Court opinion, leaked two weeks ago, would remove the legal right to abortion. But there’s also concern that the opinion, written by Justice Samuel Alito, also threatens the legalright to privacy, a right used to allow same-sex marriage and access to contraception. Commentators, though, have said that such drafts can change, and it’s possible the eventual Supreme Court ruling won’t be as sweeping as Alito’s draft.

“You always have to prepare for the worst,” Hunt said.

“Realistically, I don’t expect it to change much,” she said.

The fight to maintain abortion rights will continue, Hunt said, regardless of the ruling or what might happen in a special session.

Danek said what happens next is hard to predict.

“Whatever the Supreme Court justices are doing, we hope they feel they need to correct a wrong,” she said.

Nebraska Examiner is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Nebraska Examiner maintains editorial independence. Contact Editor Cate Folsom for questions: Follow Nebraska Examiner on Facebook and Twitter.

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