Nebraska’s Model for Countering Dangerous Disinformation about Abortion Laws

P ro-life activists in Nebraska were disappointed last month when a Republican state senator who campaigned as a pro-life advocate changed his mind and refused to vote for a bill banning most elective abortions after the first six weeks of pregnancy. While an overwhelming 32–15 majority of the legislature supported the six-week bill, it fell one vote short of breaking a filibuster.

But pro-life Nebraskans will have another opportunity to make a significant incremental gain for life next week, when a twelve-week abortion ban comes up for a vote. And they’ve already accomplished something important: Nebraska has provided a model of how states can counter dangerous disinformation about abortion laws.

Despite the fact that every state abortion law includes language protecting the life of the mother — and no law requires the threat to be imminent — some hospitals in some states have delayed treatment in cases in which the life of the mother is at risk. In anticipation of the passage of the six-week ban, Nebraska’s chief medical officer, Dr. Timothy A. Tesmer, the head of the state’s Department of Health and Human Services, got out ahead of this issue by sending a letter in late April to health-care professionals that explained very clearly what the six-week ban’s exception for protecting the life and physical health of the mother really means:

In other states that have recently passed abortion laws, health care attorneys have recommended inaction when presented with complex situations. As an example, there has been at least one case in Texas where a woman who experienced previable premature rupture of membranes (PPROM). Even though the standard of care is to offer delivery (induction or D&E) and expectant management, the woman was told that the law would not allow delivery until she was infected and at imminent risk of an adverse outcome. PPROM is a complex situation where women can become very sick very quickly and prognosis for the fetus is poor. Recommendations clarifying this and other complex situations are urgently needed to avoid unnecessary adverse outcomes for women in Nebraska.

The letter went on to quote the text of the six-week abortion ban’s exception for protecting the life and physical health of the mother, which applies when a physician determines that in his or her reasonable medical judgment the termination of pregnancy is necessary “to avert her death or for which a delay in terminating her pregnancy will create a serious risk of substantial and irreversible physical impairment of a major bodily function.” The chief medical officer explained that:

Nowhere in LB626 [the six-week bill] is a requirement that the medical emergency be immediate. Physicians understand that it is difficult to predict with certainty whether a situation will cause a patient to become seriously ill or die, but physicians do know what situations could lead to serious outcomes. At the time of diagnosis of a potentially life-threatening pregnancy complication, physicians should exercise their best clinical judgment, and be reassured that the law allows intervention consistent with prevailing national standards of care. LB626 is deferential to a physician’s judgment in these circumstances. It is necessary only that a reasonably prudent physician could have made the same judgment that a medical emergency existed in that case.  

Issuing guidance like this is what pro-life groups have been hoping officials would do to address a crisis that should never have existed in the first place. Life-threatening conditions were routinely treated before Roe; they were routinely treated under 20-week abortion limits on the books before Dobbs; and every abortion law placed on the books after Dobbs has an exception for protecting the life of the mother.

While the problem should not exist, the reality is that it does exist — either due to a misreading of the law or an unreasonable fear of the law. In Missouri, the state’s abortion law says its exception applies whenever “delay” of treatment would create a “serious risk” of permanently hurting the pregnant woman, but a woman suffering from pre-viable premature rupture of membranes was denied delivery despite the fact that the condition put her at high risk of sepsis. When that same woman sought treatment in Kansas — a state where abortion was legal until 22 weeks and abortion law had not changed after Dobbs — she was also turned away because the hospital was worried about the “political climate.” Similar cases have occurred in Texas and Florida, where the law allows treatment, but hospitals have sent women with life-threatening conditions away.

Pro-life officials in every state with laws restricting abortion would do well to follow Nebraska’s example in ensuring that women facing life-threatening pregnancy complications receive the care they need.