Abortion-related ads in Nebraska raise alarm at state health department

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

Nebraska's chief medical officer, Dr. Timothy Tesmer, wrote in the warning that recent ads have sparked confusion about Nebraska's law restricting abortions after 12 weeks of pregnancy, but did not specify which ads were involved.

He listed some exceptions to the policy, including that Nebraska law does not prohibit the removal of an ectopic pregnancy. Abortions are permitted in the state in cases of rape or incest, the statement said, and when there is a threat to a woman's life or there is a risk of irreversible damage to an important bodily function.

The two abortion-related ballot measures in Nebraska are called Initiative 439 and Initiative 434. Initiative 439 would allow abortions until fetal viability – usually around 22 to 24 weeks, although no gestational age is specified – or when necessary to protect the life of a pregnant person or necessary Health.

Initiative 434, meanwhile, would amend the state constitution to ban abortions in the second and third trimesters – i.e. after 12 weeks – with some exceptions. It is supported by Nebraska Right to Life, an anti-abortion group. Nebraska already bans most abortions after 12 weeks, so the measure wouldn't make any major changes locally. 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 that votes “yes” on Initiative 439 and ending Nebraska's abortion ban — said she believes Initiative 434 is aimed in part at causing confusion so that people against 439 votes.

Berry also suspects that the Health Department's recommendation was in response to ads from her group, although the wording did not describe a specific ad.

She said the Department of Health and Gov. Jim Pillen — who held a news conference last week about what he called “misinformation” surrounding abortion — were trying to “hide the fact that there is actually 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 an inquiry, Pillen's office pointed to a summary of his press conference last week in which he said he did not want “misinformation” to discourage women from seeking treatment for miscarriages and ectopic pregnancies. He said his concern had nothing to do with Nebraska's ballot initiatives.

Jeff Powell, communications director for the Nebraska Department of Health and Human Services, said the intent of the health alert is to “clarify current law.”

Berry's group's ads supporting Initiative 439 suggest that Nebraska's abortion ban can endanger women's lives, prevent doctors from properly treating patients and force women to carry pregnancies to term with no chance of survival.

One ad features a woman named Kimberly Paseka, who learned she would lose her pregnancy shortly after the abortion ban went into effect last year. In the first trimester, the fetus wasn't developing properly and the heartbeat had slowed, but her doctor refused to intervene, Paseka told NBC News.

“Because the law was 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 to care for a pregnant woman who was basically just waiting to miscarry.”

Paseka said she struggled with nausea and painful contractions while waiting for her miscarriage. She had more ultrasounds, which she described as “a whole new level of torture, just watching something you wanted so badly die.”

She ended up suffering a miscarriage at the end of her first trimester.

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

Responding to the health department's warning, two doctors in the state said there was no confusion among doctors about how to treat ectopic pregnancies or miscarriages.

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

Nebraska's abortion ban does not provide an exception for fetal abnormalities that prevent survival outside the womb. So if life-threatening abnormalities are detected after 12 weeks, “we cannot talk to you about terminating that pregnancy,” Dr. Abigail Drucker, chair of the Nebraska Section of the American College of Obstetricians and Gynecologists. Your organization is against Initiative 434 and supports 439.

Drucker said doctors are also confused about when it is legally permissible to intervene in certain cases where a patient's water ruptures early, which could pose a risk of infection.

“These are the issues the governor hasn’t talked about,” Drucker said. “We have limited options here in the state of Nebraska because of the law as to when and how you treat this patient.”

Dr. Mary Kinyoun, an Omaha gynecologist, said recent comments from state officials minimize the burden placed on doctors by the state's abortion ban.

“It denigrates us as gynecologists in the community fighting for reproductive rights,” she said. “I worry that it undermines gynecologists’ trust in our community.”

Powell wrote in an email that it is not the health department's intent to “denigrate 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 sent cease-and-desist letters to several 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 to file criminal charges against broadcasters that did not stop airing the ad, but a federal judge stopped the threats by issuing an injunction against state Surgeon General Joseph Ladapo. On Thursday, the judge extended the order for two weeks, until after the election or until the judge rules on a request for an injunction to bar the health department from further threatening television channels.