Six-week abortion ban on doorstep of becoming law, tally shows

The Nebraska Legislature stands at the precipice of passing a six-week abortion ban. 

Based on interviews and a tally by the Flatwater Free Press, the bill appears to need just two Republican votes to have enough support to become law.

Twenty-nine state senators, including Omaha Democrat Sen. Mike McDonnell, have signed onto the bill as co-sponsors. Two more Republicans told Flatwater they support it. 

That leaves Legislative Bill 626 two supporters shy of the 33 votes needed to overcome a filibuster.

One remaining Republican, Sen. Tom Brandt of Plymouth, said in an interview he’s strongly leaning toward voting for it. The other, new Sen. Christy Armendariz of Omaha, has privately expressed her support, according to Sen. Joni Albrecht, a Republican from Thurston who introduced the bill.  

Assuming all the bill’s co-sponsors maintain their support, votes from Brandt and Armendariz would clear the way for the bill to pass – a move that would end most legal abortions after about six weeks. 

Albrecht told the Flatwater Free Press she’s feeling good about the bill. But she stopped short of 100% confidence.

“I won’t know until the day that eight hours (of debate) are up, you know, whether they just give me cloture (to end a filibuster) or they vote for the bill,” she said. “… I don’t have a crystal ball, but I’m still confident that those that did sign on are still with me.”

There are still several steps before the proposal could reach a final vote. Sen. Megan Hunt, Democrat of Omaha – who successfully led a filibuster against a “trigger ban” abortion bill last year – said that the ending isn’t preordained. If supporters successfully push the bill across the finish line, she said, she’s determined to make it come at a cost.

“I know it’s gonna be a tight vote,” said Hunt. “But I know that there are four or five senators who have conflicted personal feelings about abortion … I feel like the work I have to do – that we have to do – between now and when we take that final vote is making sure that these lawmakers who might be on the fence really consult their conscience and they really understand that this is the most devastating bill for women in the history of our state.”

Nebraska currently outlaws abortion 20 weeks after fertilization. Last year, Albrecht proposed a bill that would have effectively banned all abortions if the U.S. Supreme Court overturned Roe v. Wade. 

That bill barely failed to overcome a filibuster on a 31-15 vote. 

After the session adjourned, the Supreme Court did overturn Roe v. Wade, turning decisions on limiting abortion over to individual states. 

This year, Albrecht is the lead sponsor on LB 626, which would require doctors to check for cardiac activity in an embryo and prohibit abortions after activity is detected. Other differences between it and last year’s proposal include intended exceptions for sexual assault and incest and language meant to explicitly exclude in vitro fertilization and ectopic pregnancies. Potential consequences for doctors who violate the law would be professional rather than criminal.

As of December 2022, abortion was unavailable in 14 states, with courts blocking ban enforcement in eight more, according to the Guttmacher Institute, a pro-abortion rights organization that tracks state policies.

Pew last polled Nebraskans on the issue in 2014, finding that 50% believed abortion should be legal in all or most cases, while 46% thought it should be illegal in all or most cases. 

The ACLU of Nebraska, which opposes LB 626, said a poll it commissioned in November showed 59% of respondents opposed “state senators enacting more restrictive abortion bans.” A poll of 400 Nebraska voters commissioned by Holland Children’s Institute in October found a majority of respondents believe abortion should be legal in most cases.

A survey commissioned by Susan B. Anthony Pro-Life America, which supports abortion restrictions, found a majority of Nebraskans supported “a bill outlawing abortions once a heartbeat is detected or in the case of rape, incest, or to save a mother’s life,” according to a polling memo.

Legislative Bill 626 had an hourslong public hearing in the Health and Human Services Committee on Feb. 1. Committee chair Sen. Ben Hansen, Republican of Blair, said the committee plans to vote on the bill in an executive session next Wednesday.

McDonnell, the registered Democrat from Omaha who is among the 29 co-sponsors, described his stance as “pro-life from conception to natural death and in between.” He confirmed that he’s considering a run for mayor of Omaha after Jean Stothert’s term ends in 2025, but said that doesn’t affect his support for the six-week abortion ban.

“If I decide to run for mayor, if I decide not to run for mayor, it’s not going to change my position,” he said.

Two senators who are registered Republicans and didn’t co-sponsor the bill are in leadership positions: Hansen and Speaker John Arch of La Vista. Both told the Flatwater Free Press that they support the bill.

The two registered Republicans whose votes are less certain, Brandt and Armendariz, also did not sign onto the bill as co-sponsors. 

Brandt was hesitant to comment, but told the Flatwater Free Press he’s “leaning toward (supporting) it, heavily.”

In an interview with radio station KWBE in August, Brandt said he was in Wichita, Kansas, a couple weeks before voters there soundly rejected a proposed constitutional amendment that would have eliminated the right to an abortion.

“You just sort of get a sense from talking to people that they have some reasonableness on rape, incest, life of the mother…healthcare…how far should a policy making organization like a legislature interfere with what goes on between a doctor and his (or her) patient,” he’s quoted saying.

Armendariz was endorsed by Nebraska Right to Life in her 2022 race and said on Facebook: 

“Now more than ever, Nebraskans are wanting to learn where their candidates are on the issue of life, and I want you to know that I believe that all life is precious!

I have received the sole endorsement from Nebraska Right to Life, and also greatly thank them for their work. I humbly ask the pro-life citizens of LD18 for their vote on May 10th, and I will make you proud, blessings!”

She told the Flatwater Free Press that she’s not comfortable being characterized as leaning one way or another on the six-week abortion ban. As a new senator, Armendariz said she wants to watch and listen to what happens during the legislative process.

“For this one, it’s just so important that I really want to spend all of the time I can possibly spend listening to everybody,” she said. 

But Albrecht said Armendariz told her “she’s definitely going to vote for the bill” but wants to listen to all debate.

Even if the supporters of further restricting abortion in Nebraska lose a Republican, they have two more registered Democrats, Sens. Justin Wayne of Omaha and Lynne Walz of Fremont, who may go either way. 

Walz said she struggled with the vote to block last year’s proposal. She did ultimately vote against ending the filibuster, but said she “cried all day.” It’s a “faith issue” for her, she said, and not clearcut. 

In 2020, she voted in favor of a bill that banned abortions by dilation and evacuation. Walz told the Flatwater Free Press she doesn’t know yet how she’ll vote this year. 

Wayne was marked “excused not voting” for votes on last year’s bill and the 2020 bill.

Albrecht told the Flatwater Free Press that, after last year’s vote, Wayne told her he would not be able to vote for a bill during a special session on abortion but would “give her cloture” – that he would help a bill overcome a filibuster and therefore become law. 

Wayne said he didn’t remember that conversation. A special session didn’t happen. Abortion is a “personal choice,” Wayne said, and it’s tough to write a bill that reflects “the gravity of that choice.”

He’s chair of the Judiciary Committee and said he hasn’t had time to read bills that are under consideration in other committees. But, he’s heard things about the proposal that concern him.

“If some of the issues in the bill – or some of the things that I’ve heard in the bill – are true I’m probably not supporting it,” he said. “I generally wouldn’t support a six-week ban, I think some people don’t even recognize that they’re pregnant by then. But, again, I haven’t read this bill.”

Sen. Carol Blood of Bellevue has made clear that her views on abortion are nuanced. However, she suggested in a text message that she won’t vote for this year’s proposal.

“I feel we have a good balance in Nebraska that respects life and protects our medical community and that at this time we have good middle ground without new legislation,” she said.

It doesn’t appear that registered Democrats who might vote contrary to the party platform – like McDonnell – are going to face significant pressure from the state’s Democratic Party. 

The party is making sure its members know how to push for bills consistent with the party’s platform, party chair Jane Kleeb said. While they have conversations with Democrats in the Legislature, she said, the party gives them “space to govern.”

“Sen. McDonnell and any other of our fellow Dems that are pro-life because of their faith, we obviously respect that,” she said. “And we also make it very clear that our platform and our base and our voters all want to protect women’s reproductive rights.”

If a Democrat votes for the ban, Kleeb confirmed that a senator wouldn’t necessarily lose the party’s support, in part because it does not take sides in primary races.

CJ King, chair of the Douglas County Democrats, said he talked to McDonnell and planned to talk to Wayne. But there’s nothing punitive in any of the local party’s documents that would allow it to take action against a Democrat in the Legislature. And, while the state party can withhold access to resources, the local party does “little to no financing” of campaigns. 

On issues like abortion, which can stir up deeply personal and faith-based convictions, the choice to vote yes or no can be fraught. Former Sen. Mark Kolterman, a registered Republican from Seward, would know: He voted to repeal the death penalty in 2015 and helped that bill overcome a veto from then-Gov. Pete Ricketts. 

“It boils down to: What are your true convictions, and are you party line or not?” Kolterman said. “It shouldn’t come down to party lines, because (the Legislature) is supposed to be unicameral and nonpartisan. Obviously that’s not the case.”

Over 85% of current abortions in Nebraska happen at six weeks gestational age or later, according to data reported to the state in 2021. That severe restriction of abortion has abortion rights supporter Hunt promising that she’ll do whatever she can to stop it.  

She said that every bill debated this year will have consequences for the outcome of the abortion bill – every bill, she said, essentially “becomes an abortion bill.”

“Whatever happens, we cannot let them get away with this easily,” Hunt said. “… Not just the abortion debate needs to be bad. Every debate needs to be bad. Every day at work needs to be bad. They have to dread coming here every day because they know it’s going to be bad. And until they can expect that, I mean, that’s just – I feel like that’s the only tool I have.”