A year in, Nebraska doctors say 12-week abortion ban has changed how they care for patients

Supporters of state’s 12-week ban say the law has been good for Nebraskans amid doctors’ concerns over legal gray area.

Brittany Harper and her husband knew they wanted a third baby. Last fall, they decided it was time – and, within a month, she was pregnant.

After some high blood pressure readings and spotting early on, she visited her Omaha OB-GYN’s office for a routine test. When Harper shared that she had some additional spotting, Dr. Annie Leishman-Barb ordered an ultrasound.

It revealed a complication that can cause miscarriage or stillbirth.

She and Leishman-Barb – her doctor for a decade, who delivered her two other children – hugged and wept.

Amid the flood of emotion and information, there was another hard truth: Harper, 11 weeks and four days into her pregnancy, was bumping up against Nebraska’s 12-week abortion ban. 

A couple days later, a specialist told her there was an 80% chance that her baby wouldn’t make it. The news was “devastating,” Harper said.

She felt angry and “hung out to dry,” she said, during one of her family’s most trying moments.

“Can we have a senator come sit in this doctor’s office with me and watch us cry and weep over finding out all of this information?” Harper said. “Like, you tell me what you think is best for me and my family and my body.”

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The Flatwater Free Press spoke with 11 doctors specializing in pregnancy and childbirth-related fields to learn if the state’s 12-week ban has affected their work since it became law a year ago. Nearly all said it has changed how they care for patients.

Some physicians reported an uptick in patients seeking contraception and sterilization. Others said they’ve had to send patients out of state for abortion care after complications jeopardized an otherwise wanted pregnancy. And almost all of the doctors who care for pregnant patients said the law has created a legal gray area that looms over their work in rare, difficult situations.

A Lincoln maternal-fetal medicine specialist said the effects of the ban have been overblown. And anti-abortion advocates pushed back against the doctors’ concerns. The abortion law, they say, is saving lives. 

“The law is good for Nebraska women, girls, and preborn babies,” said Marion Miner with the Nebraska Catholic Conference. “It protects them from unsafe, coercive, and barbaric abortion practices … the preborn child … is a human being and is owed duties, care, and a right to life.”

These are rare situations, doctors agreed. But it should always be about the standard of care and what’s best for the patient, said Emily Patel, a maternal-fetal medicine specialist in Omaha who testified against restrictions. 

“Instead, we’re sitting here scouring a law and deciding what is the right thing to do with a committee and lawyers. And that is not a place that medicine should be.”

*** 

Libby Crockett started noticing more patients seeking contraception and sterilization shortly after Nebraska lawmakers passed the 12-week ban in May 2023.

These patients hadn’t considered it before, said Crockett, a Grand Island OB-GYN who testified against abortion restrictions last year. But now, some of those patients were scared about situations outside of their control, like sexual assault.

Leishman-Barb said she now makes sure her patients are aware of the restrictions and their options.

“It has significantly changed my counseling for patients … when they’re pregnant or when we’re discussing contraception and sterilization options,” she said.

When a patient with a wanted pregnancy encounters potential complications early on – like in Harper’s case – Leishman-Barb said there’s new pressure to make a fast decision.

“Nobody wants to talk to people about terminating their pregnancy,” she said. “We are in the business of making sure people are having a healthy pregnancy and a healthy baby. The other side of the job is making sure they have all the options and all the information available. And we are being slowly limited.”

Doctors can conduct an initial screening for signs of genetic anomalies at about 10 weeks. If it shows a potential anomaly, a more invasive test can be done at 16 weeks to confirm and diagnose.

But anomalies are often diagnosed after 20 weeks when doctors conduct a detailed ultrasound known as an “anatomy scan.”

Most of the time, these scans offer reassurance that a pregnancy is progressing healthily. Occasionally, it leads to further testing, which confirms something is wrong. And, sometimes, a patient learns that the fetus will likely die.

Deciding whether to carry one of these pregnancies to term is deeply personal and complex, doctors told the Flatwater Free Press.

“None of them are a first choice, and none of them are ideal, and none of them are going to be easy,” Crockett said of the choices she presents to patients.

Some families want to spend whatever moments they can with a baby as part of their grieving process. But, for some, carrying the pregnancy is a daily source of anguish, doctors said. Comments from a well-meaning stranger in the grocery store can leave deep wounds.

Another factor: The longer a woman carries a pregnancy, the higher the risk for complications like preeclampsia or postpartum hemorrhaging, said Mary Kinyoun, an Omaha OB-GYN who testified against proposed abortion restrictions.

Prior to the 12-week ban, Nebraska banned most abortions after 22 weeks gestation. That left some women in these situations with a small window to get confirmation and decide whether they wanted to terminate their pregnancies.

“Nobody wants to talk to people about terminating their pregnancy. We are in the business of making sure people are having a healthy pregnancy and a healthy baby. The other side of the job is making sure they have all the options and all the information available. And we are being slowly limited.”Dr. Annie Leishman-Barb

Many of the doctors who spoke to Flatwater said they did not perform the termination themselves in these situations, instead referring their patients to another hospital or clinic, and sometimes out of state. Now, they all have to send their patients to other states if they want to terminate.

Kinyoun called these interactions “gut-wrenching,” and said she feels a sense of abandonment as she sends them to an unfamiliar doctor in another state on one of the hardest days of their lives. 

Kinyoun said she has had at least three of those conversations since the law passed and has helped her colleagues coordinate with other patients. 

“We were able to take care of our patients and provide that continuity and that safe space for them,” Kinyoun said. “We can’t anymore.”

Sean Kenney, a maternal-fetal medicine doctor in Lincoln who testified in support of restrictions, said he hasn’t seen a lot change since the law passed. 

He didn’t perform those terminations before the 12-week ban, he said, due to his beliefs. The window for decision-making in most of these situations was already so narrow, he said, that patients were rarely candidates for him to refer to the Bellevue abortion clinic. 

And, he said, most of them chose to continue the pregnancy anyway.

“We all are essentially born with lethal anomalies in the fact that we’re eventually going to die,” he said. “We just don’t go around killing people because they’re going to die eventually.”

His “heart goes out” to people who encounter these issues, he said, and those situations are always difficult. 

“I just tell them, you know, that you sometimes have to get through this pregnancy and look for the other one,” he said. “And if we get through it four months sooner, it doesn’t, a lot of times, make them feel that much better.”

The Nebraska Right to Life and Nebraska Catholic Conference suggested that termination in these cases is equal to abandonment.

Sandy Danek, Nebraska Right to Life’s executive director, said she had a stillbirth at about 20 weeks in 1991. Doctors discovered the fetus had no heartbeat and induced labor. An autopsy revealed a trisomy 18 anomaly. 

Danek said the time she got to spend with her daughter was invaluable, and that prenatal hospice can offer women the support they need during a child’s natural death.

“Why would you support aborting a child that simply has a disability?” said Danek. 

Those families deserve support and care, the Catholic Conference’s Miner said.

****

Medical professionals who violate the law are at risk of having their licenses revoked. 

There’s an exception for medical emergencies, which the law describes as a situation where, using “reasonable medical judgment,” it’s decided that terminating a pregnancy would keep a pregnant woman from dying or risking significant harm to a major bodily function. 

To determine whether their judgment complies with the law, doctors are consulting with their hospitals’ ethics committees before acting, some doctors said. 

One hospital formed a new committee of lawyers, ethicists and physicians that’s on call at all hours for these cases, according to doctors who work there.

A doctor at that hospital said she has consulted with the committee a handful of times in the last year, and estimated the committee is consulted by doctors at least once a month.

She said her hospital has received transfers of extremely ill women who are in need of abortion care from other hospitals that have decided not to take the risk.

Several doctors also talked about the fear they feel before taking action in these situations. 

“When you’re faced with your patient’s life in front of you and being told you can’t do it, or being scared you can’t impact that – that’s a really profound thing in medicine, and it’s a thing that physicians should not have to be faced with,” Crockett said.

Abortion opponents disputed that there’s any gray area in the law.

The state’s chief medical officer, Timothy Tesmer, issued guidance last year on situations that could arise under a proposed six-week ban, which included the same definitions around medical emergencies. Tesmer called the definition of reasonable medical judgment “a wide safe harbor for the judgment of an individual physician.” 

As of early June, the state hadn’t taken any action against any licensee for violating the new law, according to the Department of Health and Human Services. It’s not clear if there have been any complaints or investigations – citing state law, a DHHS spokesperson said the department could not provide that information.

“There is no legal gray area whatsoever,” Miner said. “Health providers who do not provide health care to women suffering a miscarriage or severe complications are abandoning their patients unnecessarily.”

“We all are essentially born with lethal anomalies in the fact that we’re eventually going to die. We just don’t go around killing people because they’re going to die eventually.”Dr. Sean Kenney

State Sen. Joni Albrecht, a Republican from Thurston who has introduced abortion-limiting bills, said the medical judgment standard now is the same that existed in previous state law.

The new law, she said, “ensures mothers can always receive the care they need while protecting the lives of precious baby boys and girls.”

Kenney, the maternal-fetal medicine doctor, referenced cases when patients have had ruptured membranes and infection. He said he has signed off on terminating pregnancies because of the risk to the mother in those situations.

If a doctor says they’re not willing to take action because they’re worried about the consequences under the law, it feels like they’re “just using that patient as an example, and that’s just wrong,” Kenney said.

Elizabeth Constance, an infertility specialist in Omaha, said nobody has been disciplined because doctors are avoiding procedures to avoid the risk. 

“In medicine there is a lot of gray area,” said Constance, who testified against restrictions, “and anyone who doesn’t acknowledge this is either being disingenuous or does not have adequate medical knowledge to be commenting on this.”

****

Harper and her husband decided not to terminate after that initial screening, knowing they had the resources to travel out of state later in the pregnancy if needed. 

They went through multiple tests, and weeks-long waiting periods that followed, to learn more about the potential complication. 

They were constantly braced for terrible news, and kept their pregnancy to themselves. 

They scheduled a termination in Colorado for about a week after their 20-week anatomy scan. She and her husband took off work and booked a hotel for three days.

Brittany Harper with her husband and their newborn baby girl, Brystal. Screening detected a potential abnormality that could have jeopardized Harper’s pregnancy. The “devastating” situation was further complicated by the state’s 12-week abortion ban, Harper said. Courtesy photo

That scan, and another test at 24 weeks, showed no defects. They canceled their Colorado appointment and their hotel reservations. They finally told their kids, family and friends they were welcoming a new baby. They put celebrations “into overdrive.” 

About six weeks ago, they welcomed a healthy baby girl, Brystal. She has “chunky cheeks” and is giving Harper “a run for her money.” Her siblings argue over who gets to hold her next. 

“I still, like, pinch myself every now and again while I’m holding her,” Harper said, “and I’m like, ‘Wow. I didn’t think that I was gonna be doing this right now.’”

By Sara Gentzler

Most recently, Sara was an enterprise reporter at the Omaha World-Herald, where she covered the ultra-dramatic 2022 gubernatorial primary race. Before that, as a state government reporter, she broke stories on Nebraska footing the bill (and refusing to admit it) for deploying state troopers to the southern border and its practice of inking millions in no-bid pandemic contracts with an out-of-state company. She graduated from Gretna High School and Creighton University and ultimately returned to Nebraska from Washington state, where she covered state government for The Olympian and three other newspapers. She and her husband, Alex, welcomed identical twin boys in June. They’re excited to introduce them to Omaha’s parks and music scene.

By Yanqi Xu

Yanqi Xu (pronounced yen-chee shu) most recently covered courts and law for NC Newsline in North Carolina, focusing on criminal justice, voting rights, housing justice and redistricting. Prior to that, she was part of a team at the Investigative Reporting Workshop that developed the Public Accountability Project, a newsroom search tool that hosts more than 1 billion public records in one place. She hails from China, where she first developed an interest in telling stories that resonate with people, no matter where they are.

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