Here on The Pulse, we exploring United States in the aftermath of the Supreme Court of the United States (SCOTUS) decision on the Dobbs versus Jackson Women’s Health Organization abortion case. We’re touring the country, state-by-state, because because the US is now a patchwork of different legal systems when it comes to abortion and even pregnancy care overall. The Dobbs case concerned Mississippi’s Gestational Age Act, written to prohibit all abortions subsequent to 15 weeks gestation, with very few exceptions. Along with upholding the Mississippi law, the SCOTUS used the case to overturn the 1973 Roe v Wade decision, with a 5-4 majority. This means that SCOTUS no longer agrees that the US Constitution, by way of the Due Process Clause of the Fourteenth Amendment, protects privacy in a way that should prevent all states from prohibiting abortion. Ironically, Mississippi’s 15-week abortion ban that caused the overturning of Roe did not even go into effect, because the state already had a trigger law that took precedence, banning abortion throughout pregnancy, rather than just beyond 15 weeks. Other US states, such as Tennessee, Georgia, Alabama, Arizona, and Missouri, also are extremely hostile to the right to choose. Other states, such as New York, Connecticut, Illinois, Oregon, and Washington have been extremely supportive of abortion rights, making efforts help out-of-state abortion seekers. There also are in between states, such as Florida, where you can have an abortion up through the 15th week, but even that right stands on shaky ground that depends a lot on outcomes of the November election (which may have taken place by the time that this post publishes). Interestingly, there are some states in which abortion rights are being upheld, despite strong majorities of anti-choice Republican politicians in the state legislatures and governors, because of either the state constitution or the court system. Such states include Kansas, Alaska, Montana, and Ohio. In Kansas, despite its strong Republican leanings and active anti-abortion politicians and organizations, the people out and voted strongly on a ballet measure in favor of keeping a guarantee of the right to choose in the Kansas state Constitution. Today, our tour takes us to Kansas’ northern neighbor, Nebraska, where abortion is still legal as of the writing of this post in late October, but where this right stands on shaky grounds, because of politics.
The Cornhusker State, as Nebraska calls itself, allows abortion up to 20 weeks gestation, throughout the state, although two places have banned abortion by local ordinance. These are Hayes Center, Nebraska, and in the city of Blue Hill, Nebraska, each with a population below 1,000 people. Other than in those two places, you can have a medication abortion in Nebraska up to 77 days (11 weeks) passed the first bleeding day of your last menstrual period, if medication abortion makes sense for you. Otherwise, and from 12 weeks to 20 weeks, you can have a procedural abortion in Nebraska. A procedural abortion means an abortion in which the provider works with instruments to terminate the pregnancy. One such procedure is called a D&C, which stands for dilatation and curettage. Curettage is a kind of scraping of the inner lining of the uterus. Extracting a pregnancy, either viable or not, is only one of several reasons for performing a D&C. D&Cs can be performed for diagnostic reasons, such as when there’s a suspicion of abnormal cell growth in the endometrium. Therapeutic D&Cs can be performed for removing products of conception, but also for removing overgrowth of the uterine lining. D&C by itself is adequate only early in pregnancy, so after a certain point the next option is dilatation and suction. This means that, after the cervix is dilated, the doctor suctions out the products of conception.
Nebraska’s limit of 20 weeks falls short of freedom granted by states that put the limit at fetal viability (generally 24-26 weeks) or that have no set cut-off point at all. However, 20 weeks represent a significant amount more wiggle room compared with the 15-week cutoff that’s in effect in Florida and that anti-abortion politicians have proposed trying to implement across the entire United States through federal legislation.
In practice, an overwhelming majority of elective abortions are performed during the embryonic stage of pregnancy, meaning during the first ten weeks from the last menstrual period. But there are logical reasons why the option for later abortions must be preserved, on top of the obvious scenario in which the mother’s life and health depends on it. This past summer, there was a case involving an 11 year-old Florida girl, after Florida had implemented the 15-week ban. Impregnated by her stepfather, the girl did not understand what was happening, and her mother did not figure out the problem, test the girl and discover the pregnancy, until she was already in the 20th week. This made the girl ineligible for an abortion in Florida, given the state’s lack of exceptions for rape and incest. Notably, a similar incest/rape victim with such extenuating circumstances, living in Nebraska, might miss the time window, but another thing about 20 weeks is that the time window for amniocentesis typically runs up to about 18 weeks. Amniocentesis is a procedure in which a sample of amniotic fluid (the fluid surrounding the fetus) is drawn through a needle. Analysis of cells from the amniotic fluid can reveal severe chromosomal anomalies that might lead a pregnant woman to decide to terminate her pregnancy and try again.
Like various other middle ground states, despite allowing abortion, Nebraska requires parental or legal guardian consent for a minor to have an abortion. If parental consent is not possible, the minor must obtain a judicial bypass in which a judge may decide to allow the abortion without parental consent. The judge can decide that the young woman is not mature enough to choose abortion, but this places the judge in the situation of implying that the young woman is mature enough to become a parent. Given this absurdity, most judges grant the bypass, but this is by no means a guarantee.
Nebraska’s right to choose during the first half of pregnancy does not stand on solid ground. Several months ago, prior to the Dobbs decision, anti-abortion politicians in the state legislature came within a couple of votes of prohibiting abortion in a bill that would have become a trigger law, and thus would have gone into effect following Dobbs. This means that pro— and anti-choice political forces are fairly equal in the Cornhusker state, making the November 8 midterm election all the more important when it comes to reproductive rights.