A new white paper published by the ACLU of Nebraska adds to existing concerns about Nebraska's suspect abortion "reversal" law based on results of a public records request.
For over 50 years in Nebraska, the ACLU has worked in courts, legislatures, and communities to protect the constitutional and individual rights of all people. With a nationwide network of offices and millions of members and supporters, we take up the toughest civil liberties fights. Beyond one person, party, or side — we the people dare to create a more perfect union.
In 2019 the Nebraska Legislature passed a biased counseling law that requires doctors to tell their patients that medication abortion could be stopped mid-way through the process. This type of suspect law has been passed in other states. The ACLU of Nebraska has carefully explored the implementation of these laws in our sister states and published that research in 2019. Abortion “reversal” is not backed by science and now there is a growing concern that attempting “reversal” is dangerous. Further, similar laws are facing costly civil rights litigation that has blocked them from going into effect.
In addition to requiring doctors tell patients about the possibility of “reversal”, the Nebraska law also requires the Nebraska Department of Health and Human Services (NDHHS) to post language on its website about “reversal” and provide contact information for a “medical professional who can help her continue her pregnancy after taking mifepristone.”
In order to learn more about how LB 209 would be implemented, the ACLU of Nebraska sent an open records request to NDHHS. We already knew that LB 209 was not grounded in evidence-based medicine, but what our request uncovered leaves us even more concerned about additional aspects of good governance such as transparency about costs, a lack of thoughtful research and analysis about how to implement the substance of the law, and an arbitrary decision to eschew the rigors of the Administrative Procedures Act.
- An estimated $75,000 of implementation costs were not included in the bill's fiscal note.
- NDHHS leadership wrote to program staff that including an anti-choice abortion reversal helpline “has been agreed to” without indications of who has agreed or the policy reasons for the agreement.
- NDHHS developed a survey to send to medical providers to find those who would participate in abortion “reversal”, but never sent it out to Nebraska providers.
- NDHHS elected not to utilize the Nebraska Administrative Procedure Act and failed to promulgate new rules and regulations potentially violating the act. As such, no rules were developed regarding what contact information or other materials would be published on the website despite Nebraskans relying on this information. No rules were developed regarding the reporting form for uses of “abortion reversal” despite statutory language requiring NDHHS to keep these reports “pursuant to such rules and regulations as established by the department.” No public process was provided for stakeholders to weigh in on these critical matters.
Our open records request shines a harsh light on the concerning implementation of this suspect legislation. We already knew that LB 209 was just the latest in a long line of attacks from politicians to insert themselves into the deeply personal abortion decision. Abortion “reversal” laws seek to confuse and shame women who have already made a decision to end their pregnancy, undermine patient health, implicate serious first amendment concerns, and the response to our records request tells us that legislating without science can also eliminate the transparency and sound procedure central to effective governance in Nebraska.
The time is right to repeal LB 209 via LB 872 in the 2020 legislative session to protect women’s health, restore medical ethics, and mitigate the risks to Nebraska taxpayers for costly, lengthy civil rights litigation.