Abortion-related ads in Nebraska are causing tension between the health department and doctors

The summary

• There are two competing abortion-related measures on the agenda in Nebraska.

• This week, the state health department issued an advisory to doctors suggesting that recent ads about Nebraska’s abortion restrictions had caused “confusion.”

• Reproductive rights advocates and gynecologists in Nebraska have pushed back against the department’s message.

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

Nebraska’s chief medical officer, Dr. Timothy Tesmer, wrote in the warning that recent ads had caused confusion about Nebraska’s law restricting abortions after 12 weeks of pregnancy, although he did not specify which ads.

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

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

Initiative 434, meanwhile, would amend the state constitution to ban abortions in the second and third trimesters — in other words, after 12 weeks — with some exceptions. It is supported by Nebraska Right to Lifean anti-abortion rights group. Nebraska bans most abortions after 12 weeks, so the measure would not make any major changes on the ground. But if passed, it could make it harder to challenge the state’s abortion law and could open the door to further restrictions.

Allie Berry, the campaign director of Protect Our Rights — a campaign to vote yes on Initiative 439 and end Nebraska’s abortion ban — said she believes Initiative 434 is partly intended to sow confusion so people oppose 439 votes.

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

She said the Department of Health and Governor Jim Pillen — who held a news conference last week about what he called “disinformation” regarding abortion — were “trying to camouflage 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 investigation, Pillen’s office pointed it out a summary of his press conference last weekwhen he said he didn’t want “misinformation” to deter women from seeking care for miscarriages and ectopic pregnancies. He said his concerns were not related to the ballot initiatives in Nebraska.

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

Berry’s group’s ads in support of Initiative 439 suggest that Nebraska’s abortion ban may threaten women’s lives, prevent doctors from treating patients appropriately And forcing women to carry out pregnancies without any chance of survival.

One ad features a woman named Kimberly Pasekawho learned shortly after the abortion ban came into effect last year that she would lose her pregnancy. In the first trimester, the fetus was not developing properly and its heart rate had decreased, but her doctor refused to intervene, Paseka told NBC News.

“Because the law had just been passed, there was a lot of confusion because there was still cardiac activity,” she said. “So instead of doing anything, I was sent home on watchful waiting, which is basically just waiting for a miscarriage.”

Paseka said she suffered from nausea and painful contractions while waiting for her miscarriage. She went in for more ultrasounds, which she described as “it’s torture in itself, just looking at something you wanted to die so badly.”

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

“I ended up coming across our baby in our bathroom, and it was just horrifying and devastating,” Paseka said.

Reacting to the health department’s warning, two doctors in the state said there is no confusion among doctors over the treatment of ectopic pregnancies or miscarriages.

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

Nebraska’s abortion ban has no exception for fetal abnormalities that prevent survival outside the womb, so if life-threatening abnormalities are discovered after 12 weeks, “we can’t talk to you about terminating that pregnancy,” said Dr. Abigail Drucker, president of the Nebraska Section of the American College of Obstetricians and Gynecologists. Her organization opposes Initiative 434 and promotes 439.

Drucker said doctors are also confused about when it is legal to intervene in certain cases where a patient’s amniotic sac ruptures prematurely, 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 in when and how you treat that patient because of the law.”

Dr. Mary Kinyoun, a gynecologist in Omaha, said the recent comments from state officials minimize the burden doctors face as a result of the state’s abortion ban.

“It kind of angers us as gynecologists in the community fighting for reproductive rights,” she said. “I’m afraid it will erode the confidence of gynecologists in our community.”

Powell wrote in an email that it was not the health department’s intent “to villainize Nebraska’s gynecologists 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. Florida Health Department sent cease and desist letters to multiple broadcast stations which aired an ad in support of 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 ended 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 decides on a request for a preliminary injunction to ban the Health Ministry from further threatening TV stations.