Nebraskans on both sides of abortion issue expect special session if Roe v. Wade overturned

A leaked draft of a U.S. Supreme Court opinion suggesting the high court is preparing to strike down Roe v. Wade left Nebraskans on both sides of the issue watching and planning for what comes next.

With no federal law protecting or prohibiting abortion, the leaked opinion, should it become final, would leave a patchwork of state laws to determine the access Americans have to abortion.

In Nebraska, state law allows abortions up to 20 weeks after conception. A measure that would have banned all abortions in Nebraska if the high court overturned the landmark 1973 ruling died in the Legislature this spring.

One thing Nebraska lawmakers are watching for is whether they will see a new version of LB933, a so-called “trigger” bill.

State Sen. Megan Hunt of Omaha said Tuesday that Nebraskans should be prepared for Nebraska Gov. Pete Ricketts to call a special legislative session to pass a law that would ban abortion in the state if the high court’s final opinion remains unchanged from the draft.  

“By blocking the passage of LB933, we just basically bought ourselves some time,” said Hunt, who led the eight-hour filibuster against the measure. The bill died after it failed to gather the 33 votes needed for a filibuster-ending cloture motion. The final vote was 31-15, with three senators excused.

State Sen. Joni Albrecht of Thurston, who introduced the bill, said she hopes Ricketts calls a special session if the ruling comes out as drafted so the Legislature can debate abortion rights again.

Speaker of the Legislature Mike Hilgers of Lincoln said Tuesday that he will work with Ricketts to schedule a special session if the high court overturns Roe v. Wade.

A spokeswoman for Ricketts said Tuesday that the Republican governor likely won’t decide whether to call a special session focused on abortion until the Supreme Court releases its official opinion on the issue. 

Ricketts has said Nebraska needs to be ready to outlaw abortion, and he strongly supported LB933. 

“I don’t anticipate we’ll have a statement on whether we’ll call a special session until the decision is final,” said Alex Reuss, Ricketts’ spokeswoman. “That might change, but I don’t see it changing.”

Albrecht said she hasn’t yet committed to reintroducing the same version of LB933 as a new bill if a special session is called, but she doesn’t imagine she would make any changes.

LB933 would have made it a felony for anyone to provide any medication or undertake any procedure with the intent of ending the life of an unborn child, starting at fertilization. The woman undergoing an abortion, however, could not be charged.

Opponents criticized the bill for putting the penalty on doctors or other professionals who administer an abortion. LB933 would not have provided exemptions, including for rape or incest, but would have allowed licensed physicians charged under the law to use as a defense that the abortion was necessary to prevent the woman’s death or serious, permanent impairment of a life-sustaining organ.

Albrecht said she is confident that the same bill could get passed in a special session; she thinks she has gathered two additional votes to support a cloture motion.

Even if the same bill fails again, Albrecht said she thinks the Legislature eventually will be able to pass an abortion-restricting law next year once new lawmakers are sworn in after the general election.

“I think it could get done,” she said.

Opponents of LB933, however, took to Twitter after the draft opinion leaked. State Sen. Adam Morfeld of Lincoln criticized the decision as “incredibly dangerous.” Sen. Jen Day of Omaha, another LB933 opponent, confirmed on Twitter Monday night that she would continue to fight against abortion-restricting legislation.

“We will never stop fighting,” Day said. “I’m sad tonight but tomorrow, we rise.”

U.S. Supreme Court Chief Justice John Roberts on Tuesday confirmed the authenticity of the draft, which was leaked to Politico. A court statement stressed that the draft isn’t an official ruling.

A final ruling in the case discussed in the draft is expected to come in June or July. The case, known as Dobbs v. Jackson Women’s Health Organization, challenges Mississippi’s ban on abortion after 15 weeks.

The draft opinion, signed by Justice Samuel Alito, a member of the court’s conservative majority, calls the Roe v. Wade ruling, which legalized abortion nationwide, “egregiously wrong from the start.”

Sandy Danek, executive director of Nebraska Right to Life, said the unprecedented breach of the court’s confidentiality is disturbing, no matter where people stand on the issue. 

“We need to proceed with caution and wait for the Supreme Court to speak for itself, giving the official opinion when the final draft is complete,” she said in a statement.

But Danek said a decision to overturn Roe v. Wade would return the abortion question to elected representatives in state legislatures. “Elections matter,” she said. “It’s why we work so hard to elect pro-life officials. Returning this decision back to the states allows for the people to decide, which is where it should have always been.”

Fifty-three Democratic state parties pledged in a statement Tuesday to recruit and support candidates for state and federal offices who will fight for abortion rights. The statement called on federal legislators to immediately codify Roe in federal law.

Sarah Stoesz, president and CEO of Planned Parenthood North Central States, said in a news media call that the organization is prepared to fight and to continue providing abortion care as long as and wherever it is legal. 

“Elections matter, they matter deeply … and now is the time to mobilize,” she said.

Meanwhile, the organization is preparing to provide access to abortion for people living in states where it would become illegal if the high court rules as the opinion suggests. 

Hunt said Nebraska could become a haven for people from surrounding states who are seeking abortion, just as states near Texas did after a law banned most abortions there. 

Stoesz said the Planned Parenthood affiliate, which includes Nebraska, Iowa, Minnesota, North Dakota and South Dakota, is planning for that possibility.

North Dakota and South Dakota both have trigger bans on their books, she said, meaning abortion would immediately become illegal if the high court overturned Roe v. Wade. 

Minnesota, however, has a state Supreme Court decision that protects such access. Iowa bans abortions after 20 weeks, but it has a constitutional measure that protects abortion before that cutoff, at least for now. Opponents have proposed placing a constitutional amendment on the ballot in 2024 to nullify it.

This report contains material from the Associated Press.