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In Nebraska, abortion rights are safe — for now

Another measure that would have completely banned abortion in South Carolina also failed this week.

A crowd of people stands in a room. One person holds a protest sign that says “Defend Choice.” Two women, Pat and Neal, stand at the forefront, wearing matching black T-shirts printed with the words “Shame, Shame, Shame, Shame: Melody Sent Me”
Pat Neal, left, and Ann Fintell, both of Lincoln, celebrate in the Nebraska Capitol rotunda after the failure of a bill that would have banned abortion around the sixth week of pregnancy, Thursday, April 27, 2023.
AP Photo/Margery Beck
Ellen Ioanes covers breaking and general assignment news as the weekend reporter at Vox. She previously worked at Business Insider covering the military and global conflicts.

The Nebraska legislature defeated a bill Thursday that would have restricted abortions in the state to six weeks after fertilization, protecting the right to abortion in a solidly Republican state. South Carolina, too, defeated a similarly restrictive piece of legislation Thursday, in another win for abortion rights in a red state.

As conservative states like Florida enact near-total abortion bans, the ongoing battles around abortion in states like South Carolina and Nebraska reinforce the complexities of legislating abortion access and force legislators to acknowledge the effect that limiting this access has on the lives of their constituents, outside of political tribalism.

In Nebraska, Gov. Jim Pillen, a Republican whose campaign website describes him as “proudly prolife,” said after the vote that he was “profoundly disappointed” in the outcome, according to the New York Times. Though Pillen supported the legislation, it will not come up again this year after its narrow defeat in Thursday’s cloture vote. Nebraska currently allows abortion up to 20 weeks of gestation.

State Sen. Joni Albrecht introduced the bill, called the Nebraska Heartbeat Act, in January “to save the lives of unborn children,” according to a statement of intent, and “to encourage greater respect for human life in society and to preserve the integrity of Nebraska’s medical profession.” The bill mandates that doctors must test for fetal cardiac activity before performing an abortion and that performing an abortion if such activity is present would suspend the doctor’s medical license except in the case of rape, incest, or a medical emergency.

The Nebraska Heartbeat Act failed in a cloture vote, which ends debate on a bill and brings it to the floor for a yes-or-no vote. In Nebraska’s nonpartisan unicameral legislature, it takes 33 votes to end debate and force a vote; only 32 senators voted in favor of cloture, with 15 voting against and two abstaining. Pillen later chastised the two senators who did not vote, Republican Merv Riepe and Democrat Justin Wayne, saying it was “unacceptable for senators to be present not voting on such a momentous vote.” The legislature’s policy is to consider a bill dead for the rest of the session if it doesn’t pass the cloture vote.

Though Republican legislators had 33 votes to force cloture, Riepe’s abstention ended up being the decisive factor in the outcome. Riepe, a former hospital administrator representing a district in Omaha, initially backed the bill, though he later announced his intention to introduce an amendment allowing abortion up to 12 weeks of gestation, for fear that a six-week ban would amount to a “total ban” on the procedure.

“At the end of the day, I need to look back and be able to say to myself, ‘Did you do the best?’” Riepe told the Flatwater Free Press in March. “No group came to me, asking me to do this. This is of my own beliefs, my own commitments.”

Abortion is safe in Nebraska for now — but what about the future?

According to Sen. John Fredrickson, a Democrat representing an Omaha district, Thursday’s outcome is a testament to the fact that “we still have thinking people” in the legislature, despite Nebraska’s deep-red bona fides.

“Just having very direct and frank conversations about the nuance, the reality of [abortion] and not falling into the traps of hyper-partisan framing or language about it — just coming to the table and having direct, frank conversations about what this actually means — that was our path to victory here,” he told Vox.

Nebraska’s legislature is unicameral, so there’s no chance for the bill to be picked up in a different chamber, and it’s nonpartisan. Legislators don’t caucus with their parties, Fredrickson told Vox, so there’s not reliably a hard party-line vote, even on culture war issues like abortion.

Just last year, the legislature blocked a trigger law that would have banned abortions when Roe v. Wade was overturned. In a similar maneuver to Thursday’s, a cloture vote prevented the bill from going to the floor.

Those two abortion rights victories, though, aren’t affirmative or definitive — they don’t explicitly uphold the right to abortion either legislatively or in Nebraska’s constitution, and they won’t stop more legislation from coming forward in the future.

Though Fredrickson told Vox there was some organizing around a ballot measure protecting abortion rights, it’s challenging for abortion rights advocates in the legislature to explicitly protect that right. “From a legislative perspective, it’s very difficult for us to codify protections surrounding abortion, given the makeup of the [legislative] body, but we are able to play defense and protect against additional restrictions,” he said.

Riepe’s future 12-week ban could be the next challenge for Fredrickson and abortion rights proponents. Though a proposed amendment to the Albrecht bill contains exceptions for the life and health of the mother, fetal anomaly, rape, and incest, a previous iteration of the 12-week ban did not provide exceptions for rape and incest. Riepe previously expressed concern that an exception for rape would unfairly target men and open them up to potential prosecution.

South Carolina reaffirmed its stance on a harsh abortion ban

In another surprise, South Carolina’s senate failed to pass a total abortion ban on Thursday, defeating the measure 22 to 21. Though abortion remains legal through 22 weeks of gestation in South Carolina, the legislature has repeatedly attempted to severely curtail or ban the procedure, or introduce draconian punishments for having an abortion.

The chamber’s five women senators — three Republicans, one Democrat, and one Independent — held a multiday filibuster against the bill, which would outlaw abortion at the point of conception.

“Abortion laws, each and every one of them, have been about control. It’s always about control, plain and simple. And in the senate, the males all have control. We, the women, have not asked for ... nor do we want your protection. We don’t need it. There is not a single thing I can do when women such as me are insulted except make sure that you get an earful,” Republican Sen. Sandy Senn, who represents parts of Charleston and Dorchester counties, said to her colleagues on Thursday.

The Senate in September defeated a similar measure; it passed a separate abortion ban, which was then declared unconstitutional by the South Carolina Supreme Court.

The Court’s January ruling protecting the right to abortion isn’t absolute, however; according to the majority’s decision, that right “must be balanced against the State’s interest in protecting unborn life.” That opens the door for legislators to continue proposing abortion bans.

In February, the Senate passed a bill that would ban abortion after fetal cardiac activity. That bill is now in the state House, a staunchly hard-right chamber that includes the so-called “Freedom Caucus.” That group, as Senn told NPR, is “just hell-bent that it is going to be zero abortion or nothing, they say that they’re not going to go within six weeks, not going to go 12 weeks, it’s going to be zero or nothing.” Senate Minority Leader Brad Hutto echoed that sentiment, telling Vox that the February ban was unlikely to pass the House for that reason.

One member of the Freedom Caucus, Rep. Rob Harris, introduced a fetal personhood bill in March that would make abortion punishable by life in prison or the death penalty. “Legislators in South Carolina have tried in every legislative session to introduce a fetal personhood bill” for over two decades, as Vicki Ringer, South Carolina director of public affairs for Planned Parenthood South Atlantic, told Vox at the time — but Harris’s legislation was “the craziest” she had seen in her career.

Thursday’s vote against the abortion ban is a step, but it’s not far enough, as Hutto told Vox. “If it were a permanent victory, it would be wonderful. But it’s just going to keep coming back and coming back, so we’re doing it over and over again, and hopefully as we go along, educate more people and pick up more momentum.”