Abortion-related ads in Nebraska prompt tension between health department and doctors

Just a week before an election in which Nebraska voters will decide on two competing ballot initiatives related to abortion rights, the state health department sent doctors an alert about what it called “misleading information” in radio and TV ads.

Nebraska’s chief medical officer, Dr. Timothy Tesmer, wrote in the alert that recent ads had generated confusion about Nebraska’s law restricting abortions after 12 weeks’ gestation, though he did not specify which ads.

He listed some exceptions to the policy, among them that Nebraska law does not prohibit removal of an ectopic pregnancy. Abortions in the state are allowed 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 harm to a major bodily function.

Nebraska’s two abortion-related ballot measures are called Initiative 439 and Initiative 434. Initiative 439 would allow abortions until fetal viability — usually around 22 to 24 weeks, though it does not specify a gestational age — or when needed to protect a pregnant person’s life or health. 

Initiative 434, meanwhile, would amend the state constitution to prohibit abortion 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 prohibits most abortions after 12 weeks, so the measure would not cause major changes at the ground level. But if it is passed, it might make it harder to challenge the state’s abortion law and could open the door for further restrictions.

Allie Berry, the campaign manager of Protect Our Rights — a campaign to vote “yes” on Initiative 439 and end Nebraska’s abortion ban — said she believes that Initiative 434 is in part designed to sow confusion so people vote against 439. 

Berry also suspects the health department’s advisory was a response to ads from her group, even though the language did not describe a specific ad.

She said the health department and Gov. Jim Pillen — who held a news conference last week about what he called “misinformation” pertaining to abortion — were “trying to camouflage that there is actually an abortion ban in Nebraska.” 

Pillen, a Republican, and Tesmer are “using their position of power to try to further confuse voters,” Berry said. 

In response to an inquiry, Pillen’s office pointed to a summary of his news conference last week, when he said he did not want “misinformation” to prevent women from seeking care for miscarriages and ectopic pregnancies. He said his concern was 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 alert was to “clarify the current law.”

The ads from Berry’s group in support of Initiative 439 suggest that Nebraska’s abortion ban can threaten women’s lives, prevent doctors from properly treating patients and force women to carry pregnancies with no chance of survival.

One ad features a woman named Kimberly Paseka, who learned shortly after the abortion ban took effect last year that she would lose her pregnancy. In the first trimester, the fetus was not developing properly, and the heartbeat had diminished, 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 to miscarry.” 

Paseka said she contended with nausea and painful contractions as she awaited her miscarriage. She went in for more ultrasounds, which she described as “its own level of torture, just watching something that you wanted so badly die.” 

She eventually miscarried at the end of her first trimester.

“I ended up passing our baby in our bathroom, and it was just horrific and devastating,” Paseka said. 

In response to the health department alert, two doctors in the state said there is no confusion among physicians about how to treat ectopic pregnancies or miscarriages.

But it can be difficult to determine what to do when a fetus still has a heartbeat, they said.

Nebraska’s abortion ban does not have an exception for fetal anomalies that prevent survival outside the uterus, so if life-threatening anomalies are detected after 12 weeks, “we cannot talk to you about termination of that pregnancy,” said Dr. Abigail Drucker, chair of the American College of Obstetricians and Gynecologists’ Nebraska section. Her organization opposes Initiative 434 and promotes 439.  

Drucker said doctors are also confused about when it is legally permissible to intervene in certain cases in which a patient’s amniotic sac breaks early, which could 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 with when and how you treat that patient because of the law.”

Dr. Mary Kinyoun, an OB-GYN in Omaha, said the recent comments from state officials minimize the burden physicians face as a result of the state’s abortion ban.

“It kind of villainizes us as OB-GYNs in the community fighting for reproductive rights,” she said. “I worry that it kind of eats away at the trust of OB-GYNs in our community.”

Powell wrote in an email that it was not the health department’s “intent to villainize Nebraska’s OBGYNs or any other medical professional” 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 Health Department sent cease-and-desist letters to multiple broadcast stations that aired an ad supporting an abortion-rights ballot measure. The attorney who wrote the letters on behalf of the department subsequently resigned.

The department threatened criminal charges against stations that did not stop playing the ad, but a federal judge put a stop to the threats by issuing a temporary restraining order against state Surgeon General Joseph Ladapo. On Thursday, the judge extended the order for two weeks, until after the election or until the judge makes a decision about a request for a preliminary injunction to bar the health department from further threatening TV stations.