Nebraska is the only state with two abortion measures on the ballot. Confusion is the point.

Voters in 10 states will weigh in on abortion-rights ballot measures this November, but only Nebraskans will cast ballots on two competing initiatives. Initiative 439 would establish a state constitutional right to abortion up to fetal viability or when necessary to protect the “health or life” of the pregnant patient. Initiative 434, however, would ban abortion in the second and third trimesters, with exceptions for sexual assault, incest, or medical emergencies.

“We hear all the time how confusing the two measures are and folks are very afraid of accidentally checking the wrong one,” said Shelley Mann, the executive director of Nebraska Abortion Resources (NEAR), the only statewide abortion fund in Nebraska.

Much of the confusion surrounding the competing proposals is intentional, and likely a preview of new tactics in the evolving anti-abortion playbook. 

Since May 2023, abortion in Nebraska has been banned past the first trimester, and last fall reproductive choice advocates launched a ballot measure campaign to restore and expand access. Anti-abortion leaders introduced a competing measure four months later. (The proposed anti-abortion ballot measure wouldn’t expand current restrictions, but it would embed existing second- and third-trimester bans into Nebraska’s state constitution. This would make it significantly more difficult for the legislature or courts to roll back those restrictions later.)

While collecting signatures, some canvassers from the Protect Women and Children campaign misrepresented themselves as being in favor of expanding abortion access, leading hundreds of Nebraskans to erroneously sign their petition. 

Upon realizing their mistake, more than 300 of those voters signed affidavits to have their names removed from the anti-abortion petition, marking the highest number of removal requests in the state’s history. (Over 205,000 people signed the anti-abortion petition in total.) 

More recently, Catherine Brooks — a neonatal pediatrician who filed legal objections to block the pro-abortion rights measure from appearing on Nebraska’s ballot — appeared in a TV ad in which she portrayed herself as an advocate for reproductive freedom fighting against government intrusion in medicine. 

“As a doctor, I want compassionate, clear, scientific standards of care,” Brooks said in the ad. “As a mom, I want to keep the government out of the relationship between a woman and her physician. Initiative 439 pretends to protect our rights but it does the opposite. It lets government officials interfere in medical decisions and takes care out of the hands of licensed physicians, when women in crisis need them most.”

There’s little doubt that Republicans in Nebraska hope to restrict abortion beyond the existing 12-week ban, which was passed shortly after lawmakers narrowly failed to impose a six-week limit. Nebraska’s Republican Gov. Jim Pillen has publicly pledged to continue fighting until abortion is fully banned in his state. 

The outcome of these dueling ballot proposals could affect not just those in Nebraska but pregnant people nationwide. Abortion rights activists have been sounding the alarm, warning that if Initiative 434 succeeds in November, anti-abortion leaders will export their winning strategy elsewhere — using the language of reproductive freedom to advance seemingly moderate measures that obscure long-term goals of deeper bans.

Nebraska’s 12-week abortion ban is already causing harm

The 12-week abortion ban Nebraska lawmakers passed in May 2023 included exceptions for pregnancies caused by rape or incest, or to save the life of the mother.

As in other states, these exceptions have proved ambiguous for doctors on the ground, and many patients who need abortion care have been unable to get it. 

Kim Paseka, a 34-year-old woman based in Lincoln, Nebraska, was one of those patients. Paseka lives with her husband and their 3-year-old son, and though they wanted at least two children, they were unsure about pursuing that in Nebraska after Roe was overturned.

“We knew it was probably inevitable that our state government was going to work on banning reproductive health care in some capacity and it definitely gave us pause, like should we move, do we stay and fight? Those were our dinner table conversations,” she told Vox. In the summer of 2023, just after Nebraska lawmakers passed their 12-week ban, Paseka learned she was pregnant again. 

Initial blood tests looked fine, but following a routine ultrasound, Paseka was informed that her baby’s heartbeat was slower than expected. In subsequent appointments, the doctors determined the heartbeat was diminishing and that Paseka was carrying a nonviable pregnancy. 

Because of the new ban and the fact that Paseka’s life was not immediately threatened, her doctors weren’t comfortable ending the pregnancy. They sent her home with instructions for “expectant management” — meaning to wait until she’d bleed out eventually with a miscarriage. 

“I had to go back to the hospital for three more scans, where I had to see the heartbeat weaken further week by week, and during this whole time I’m so nauseous, I’m tired, I’m experiencing all the regular pregnancy symptoms, but I was carrying a nonviable pregnancy,” she said. It took roughly a month for Paseka to finally bleed out the pregnancy at home.

“In Nebraska, we have these exceptions, but in my situation it wasn’t assault, it wasn’t incest, and my life wasn’t in immediate danger, so I automatically just lose health care,” she said. “They’re forgetting how detrimental that can be to mental health, that it’s not just about physical endangerment. … I felt like a walking coffin.” 

Mann, the executive director of Nebraska’s statewide abortion fund, emphasized that the 12-week ban has had far-reaching consequences that most people underestimate. 

“Not only are folks now restricted in how and when they can get the care they need, but it’s additionally problematic that these rules are designed to be confusing and were brought about during a time when confusion was at an all-time high,” she told Vox. “We talk to callers and members of the community all the time who have no idea when and if abortion is even legal here in Nebraska.”

There are two remaining abortion clinics in the state, though both only perform abortions part-time, meaning there sometimes are not enough appointments to go around, including for patients traveling in from states with near-total bans like Iowa and South Dakota.

“This means that not only are patients who are past the 12-week mark forced to flee the state for care, but even patients under that ban restriction are sometimes having to travel just to get an appointment in a timely manner,” Mann explained. “These patients are going to places like Minneapolis, Chicago, and Denver … this travel is often expensive, inconvenient, and overall an enormous burden on pregnant people.”

Anti-abortion leaders plan to push for further restrictions in Nebraska

Initiative 434, also known as the Prohibit Abortions After the First Trimester Amendment, sounds almost like a measure to protect abortion access in the first 12 weeks of a pregnancy. The proposal, which is being primarily funded by Nebraska billionaire and US Sen. Pete Ricketts, does not in fact do that.

On top of codifying the state’s existing ban on abortion past 12 weeks into Nebraska’s constitution, the measure allows lawmakers to pass further legislative bans on top. Put differently, it strengthens abortion bans but provides no meaningful increase in abortion access. 

Marion Miner, the associate director for “pro-life and family policy” at the Nebraska Catholic Conference, emphasized in a video posted over the summer that he does not see Initiative 434 as “an acceptable final resolution” because it does “not protect all unborn children” including those born from sexual assault or incest.

“It is an imperfect proposal … an incremental pro-life initiative that takes a small step to protect unborn life without restraining us from doing more,” Miner said, stressing Initiative 434 would “allow for additional protections to be passed in the future.” 

Over a century ago, Nebraska lawmakers enacted a law stating that if two conflicting state constitutional ballot measures pass, the measure with the most votes will be adopted. According to Nebraska Secretary of State Bob Evnen, if both Initiative 439 and Initiative 434 pass, it would mark the first time this 1912 law could be used.

“It’s possible that one of the proposals could get approved and not be adopted,” Evnen told NPR in May. “It’ll come down to, whichever one receives the most votes is the one that would go into Nebraska’s constitution.”

Even the existing 12-week ban, often described by conservatives as a moderate compromise, appears out of step with what Nebraskans want. The ACLU of Nebraska found in late 2022 that 59 percent of respondents opposed lawmakers enacting abortion bans, with opposition in both rural and urban areas and every congressional district.

In the more than two years since the Supreme Court overturned Roe v. Wade, abortion rights ballot measures have succeeded in all seven states in which they’ve appeared, including red and purple states like Kentucky, Ohio, Kansas, Michigan, and Montana. This year, high-profile abortion rights measures are on the ballot in states like Florida, Arizona, and Missouri. Nebraska’s contests, relative to these other states, have received less attention. 

“They know public opinion is on our side so they’re doing everything they can to muddy the waters,” said Allie Berry, the manager for the Protect Our Rights campaign, which is leading Nebraska’s ballot measure to expand abortion rights. While Berry feels cautiously optimistic, she understands her opponents are striving to trip up voters. “If they succeed here,” Berry predicts, “they’ll try this in every other state.”