Just a week before the election in which Nebraska voters will decide on two competing ballot initiatives regarding abortion rights, the state Department of Health and Human Services sent a warning to physicians about what it called “misleading information” in radio and television ads.
Nebraska’s chief medical officer, Dr. Timothy Tesmer, wrote in the warning that recent ads had caused confusion about Nebraska’s law banning abortions after 12 weeks of pregnancy, though he did not specify which ads.
He noted some exceptions to the policy, including that Nebraska law does not prohibit removing an ectopic pregnancy. Abortions are permitted in the state in cases of rape or incest, the advisory said, and when there is a threat to a woman’s life or a risk of irreversible damage to a major bodily function.
Nebraska’s two abortion-related ballot measures are called Initiative 439 and Initiative 434. Initiative 439 would allow abortions up to the viability of the fetus — usually around 22 to 24 weeks, though it doesn’t specify the gestational age — or when necessary to protect the life or health of a pregnant woman.
Meanwhile, Initiative 434 would amend the state constitution to ban abortions in the second and third trimesters — in other words, after 12 weeks — with some exceptions. It is supported by Nebraska Right to Life, an anti-abortion rights group. Nebraska already bans most abortions after 12 weeks, so the measure wouldn’t make major changes at the ground level. But if it passes, it could make it harder to challenge the state’s abortion law and could open the door to further restrictions.
Allie Berry, the campaign manager for Protect Our Rights — a campaign to vote “yes” on Initiative 439 and end Nebraska’s abortion ban — said she believes Initiative 434 was designed in part to sow confusion so people would vote against 439.
Berry also suspects the Health Department’s advisory was in response to ads from her group, even though the text did not specifically describe the ad.
She said the Health Department and Gov. Jim Pillen — who held a press conference last week about what he called “misinformation” about abortion — “were trying to disguise the fact that there is an abortion ban in Nebraska.”
Pillen, a Republican, and Tesmer “are using their positions of power to further confuse voters,” Berry said.
In response to a question, Pillen’s office referred to a summary of his press conference last week, when he said he didn’t want “misinformation” to discourage women from seeking help for miscarriages and ectopic pregnancies. He said his concerns were not related to Nebraska’s ballot initiatives.
Jeff Powell, communications director for the Nebraska Department of Health and Human Services, said the intent of the health warning was to “clarify the current law.”
Advertisements from Berry’s group in support of Initiative 439 suggest that Nebraska’s abortion ban could threaten women’s lives, prevent doctors from treating patients properly and force women to carry pregnancies to term with no chance of survival.
One ad features a woman named Kimberly Paseka, who was told she was going to lose her pregnancy shortly after the abortion ban went into effect last year. In the first trimester, the fetus was not developing properly and had a decreased heart rate, but her doctor refused to intervene, Paseka told NBC News.
“Because the law had just passed, there was a lot of confusion because there was still cardiac activity,” she said. “So instead of doing anything, I was sent home for expectant management, which is basically just waiting for a miscarriage.”
Paseka said she struggled with nausea and painful contractions as she waited for her miscarriage. She went for more ultrasounds, which she described as “its own level of torture, just watching something you wanted to see die so badly.”
She eventually suffered a miscarriage late in her first trimester.
“I ended up delivering our baby in our bathroom, and it was just horrible and devastating,” Paseka said.
In response to the state Department of Health’s warning, two doctors in the state said there is no confusion among doctors about how to treat ectopic pregnancies or miscarriages.
But it can be difficult to determine what to do if a fetus still has a heartbeat, they said.
Nebraska’s abortion ban does not include an exception for fetal abnormalities that prevent survival outside the womb, so if life-threatening abnormalities are discovered after 12 weeks, “we can’t talk to you about terminating that pregnancy,” said Dr. Abigail Drucker, president of the Nebraska chapter of the American College of Obstetricians and Gynecologists. Her organization opposes Initiative 434 and promotes 439.
Drucker said doctors are also confused about when it is legal to intervene in certain cases where a patient’s amniotic sac ruptures prematurely, which can pose a risk of infection.
“These are the issues that the governor didn’t talk about,” Drucker said. “We are limited here in the state of Nebraska in when and how you treat that patient because of the law.”
Dr. Mary Kinyoun, an obstetrician-gynecologist in Omaha, said the recent comments from state officials minimize the burden doctors face as a result of the state’s abortion ban.
“It makes us as obstetricians a little bit of a bad guy in the community that’s fighting for reproductive rights,” she said. “I worry that it undermines the trust of obstetricians in our community.”
Powell wrote in an email that the Department of Health and Human Services did not intend to “discredit Nebraska’s gynecologists or other medical professionals” and that “DHHS has great respect for both the medical profession and the doctor-patient relationship.”
The back-and-forth in Nebraska is reminiscent of a similar controversy in Florida this month. The Florida Department of Health and Human Services sent cease-and-desist letters to several radio stations that aired an ad supporting a vote on abortion rights. The attorney who wrote the letters on behalf of the department subsequently resigned.
The department threatened criminal charges against stations that did not stop the ad, but a federal judge put an end to the threats by issuing a temporary restraining order against the state’s Surgeon General, Joseph Ladapo. On Thursday, the judge extended the restraining order for two weeks, until after the election or until the court rules on a request for a preliminary injunction to prevent the Department of Health and Human Services from further threatening TV stations.