A bill that would have banned abortion in Nebraska after about six weeks failed to advance on Thursday after falling one vote short of the threshold needed to invoke cloture.
Sen. Joni Albrecht of Thurston was only able to muster 32 of the 33 votes needed to shut off debate and force a vote on her priority legislation (LB626) prohibiting doctors from performing abortions if cardiac activity was detected in an embryo during an ultrasound.
Omaha Sen. Merv Riepe, a co-sponsor of the bill who later said he harbored concerns about it, did not cast a vote on the motion to invoke cloture, which came inside a hushed legislative chamber just after 3 p.m.
After previously voting the bill out of the Health and Human Services Committee and supporting it during the first round of consideration, Riepe was present not voting on Thursday.
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Another lawmaker, Omaha Sen. Justin Wayne, also announced he was not voting after about 15 seconds of silence.
Together, Riepe and Wayne’s votes kept LB626 from advancing, which keeps abortion legal until 20 weeks after fertilization with some restrictions in Nebraska.
Gov. Jim Pillen, who backed Riepe and donated to his legislative campaign, said in a statement he was “profoundly disappointed” after the Legislature adjourned.
“It is unacceptable for senators to be present not voting on such a momentous vote,” Pillen said. “I call on Senator Merv Riepe to make a motion to reconsider and stand by the commitments to life he has made in the past.”
It’s unclear if that will happen this year. With 20 days remaining in the legislative session, Speaker John Arch did not say if he would bring LB626 back to the agenda to be considered again.
Opponents of the bill, many dressed in green, celebrated in the Rotunda for more than an hour after the cloture vote, cheering senators who voted against LB626 as they emerged from the chamber.
“I knew this was possible, I knew there was a window for this outcome,” said a tearful Omaha Sen. Megan Hunt, who has led opposition to several abortion-related bills, “but I knew it would be really, really, really hard and really close and that it was moment-to-moment.”
At the start of the four-hour debate, Hunt withdrew a handful of procedural motions typically used in a legislative filibuster to allow an amendment introduced by Riepe reducing Nebraska’s existing 20-week ban on abortions to 12 weeks to come to the floor for consideration.
Riepe said he believed his amendment, which also added fetal anomalies to the list of exceptions included in LB626 — rape, incest and medical emergencies — was more in line with the kind of policy Nebraskans wanted.
The registered Republican, who was defeated by former Sen. Steve Lathrop in 2018 but returned to the Legislature this year after his Democratic opponent decided not to seek reelection, also said the amendment would reduce blowback if an unpopular bill was signed into law.
Riepe warned that LB626 would face legal challenges like similar abortion laws have in other states, or could be the subject of a citizen referendum, which could ultimately undo any restrictions passed by the Legislature this year.
Lincoln Sen. Danielle Conrad, who said she considered any restriction on abortion a restriction on human rights, called LB626 “a near total ban because it would ban abortion before many women know they are pregnant” and was unclear on how exceptions for rape and incest would be handled.
Conrad said the bill was also vague on how doctors who would perform an abortion after cardiac activity was detected would be penalized; Albrecht said they would not face criminal prosecution but could have their medical licenses revoked.
The civil rights attorney said Riepe’s amendment was a better step forward than Albrecht’s legislation.
“We cannot and should not impose an extreme ban on all Nebraska women,” Conrad said. “I trust Nebraska women and doctors, I stand for human rights. It is not the role of government to judge, shame or criminalize women or doctors, and this provides a more humane path.”
But supporters of LB626 rejected those arguments. Albrecht said previously she would not support the bill if Riepe’s amendment was attached, and Sen. Julie Slama of Dunbar said Riepe was operating in good faith, but added his amendment “would sink the bill” if adopted.
With a little more than an hour left in the debate, Riepe attempted to call the question and force a vote on his amendment, but was ruled out of order by Lt. Gov. Joe Kelly, the presiding officer.
Meanwhile, opponents of the bill pulled themselves out of the speaking queue in an attempt to get to a vote on the amendment before cloture. Supporters kept the debate going, however, in order to vote for cloture before the amendment.
LB626 supporters' legislative maneuvering did not pay off, however.
And for the second year in a row, a bill to further restrict abortion in Nebraska failed. Last year, a bill (LB933) also introduced by Albrecht that would have enacted an abortion ban if the U.S. Supreme Court overturned Roe v. Wade, fell two votes short of invoking cloture.
Several groups that opposed the bill said Thursday’s outcome was the right outcome for Nebraskans because it kept abortion safe and legal.
“I think what we saw is what we knew all along,” said Andi Curry Grubb, executive director of Planned Parenthood Advocates of Nebraska. “There were multiple senators who had a problem with this bill, and all it took was one to stand up.”
Scout Richters, senior legal and policy counsel for the ACLU of Nebraska, credited “the hundreds of Nebraskans” who testified at hearings, or emailed or called their senators urging them to vote no.
“It is beyond clear that most Nebraskans support legal access to abortion, and it is past time that state senators’ votes reflect that reality,” Richters said in a statement. “We will continue doing all we can to ensure that decisions about our lives, bodies and futures stay with Nebraskans and their medical providers, not politicians.”
Backers of LB626 said Albrecht’s latest attempt addressed the concerns raised by opponents in the previous debate, who said the bill did not have carve-outs for ectopic pregnancies or in vitro fertilization, or other medical procedures that result in the termination of a pregnancy.
They also said an opinion authored by Nebraska Attorney General Mike Hilgers — who as a state senator supported restricting abortion — and Solicitor General Eric Hamilton showed LB626 would not put physicians at risk of being prosecuted for performing abortions.
A letter from Dr. Timothy Tesmer, Nebraska’s chief medical officer, outlining the guidance the Department of Health and Human Services would provide to hospitals and health care professionals to handle abortion cases also demonstrated how “friendly to women and doctors” LB626 was, according to supporters.
Sen. Ben Hansen of Blair said Tesmer’s letter indicated in several places that doctors would not have to wait until death was imminent for a woman in order to take action on whether or not to perform an abortion — only that death would be foreseeable if they did not act.
Ultimately, the majority of senators who spoke in support of Albrecht’s bill on Thursday said it accomplished their long-held goal of banning “elective abortions” in Nebraska.
Marion Miner, associate director of pro-life and family policy for the Nebraska Catholic Conference, said they were disappointed in Riepe’s vote.
The former hospital administrator had previously signaled he was “100% pro-life without exceptions,” Miner said, appeared in marketing materials supporting the bill and voted to advance it several times previously this year.
Miner said the Nebraska Catholic Conference plans to work with senators to sponsor legislation in the future to further restrict abortion in the state.
“We’ll be back at the earliest possible opportunity and we intend to keep coming back until every human life is respected for its dignity and protected under the law,” Miner said.
Opponents of the bill said Thursday’s vote could be a bellwether for the remainder of the session.
With a final-round vote on a bill (LB574) banning certain care for transgender youth on the horizon, Hunt said the vote on LB626 signals “hope is not gone.”
“In the Legislature, we still have reasonable lawmakers, we still have people who are willing to listen to science and experts,” she said. “I think it has injected some courage into the hearts of my colleagues for the difficult fights that are still before us.”
The motion to invoke cloture is UNSUCCESSFUL
— Chris Dunker (@ChrisDunkerLJS)