At a coffee shop in Omaha, Allie Berry stands before a group of volunteers, clipboard in hand. She’s explaining Nebraska’s two abortion ballot measures to the group before they go door-knocking in a nearby neighborhood.
Berry is the campaign manager for Protect Our Rights, which is trying to expand abortion rights in Nebraska. They’re running against a rival initiative that’s trying to put Nebraska’s current abortion limit in the state constitution.
“The big work we have ahead of us before the election is just making sure people understand the difference between the two when they get out there and vote,” she told the group.
What are the ballot measures?
Nebraska is one of 10 states voting on abortion rights this election. But it’s the only state where voters will choose between expanding abortion access or enshrining current restrictions in the state constitution. And people on both sides of the issue can agree: it’s confusing.
Here’s what it looks like on the ballot: Initiative 434 will ask if you want to ban abortions in the second and third trimesters, with exceptions for sexual assault, incest and medical emergencies. It puts Nebraska’s current 12-week ban into the state constitution while allowing for further restrictions.
Initiative 439 asks if you want to constitutionally guarantee abortion access until fetal viability, with exceptions for life and health. That would expand Nebraska’s abortion limit from 12 to around 24 weeks.
Recent polling from the Midwest Newsroom and Emerson College suggests it could be a close race when votes are counted on Nov. 5. Both proposals need approval from more than 50% of voters to pass.
If neither clear that threshold, Nebraska keeps its current 12-week law. If both pass, there’s a chance it’ll come down to whichever initiative got the most “yes” votes.
Voter outreach
“It is insanely complicated,” said Sandy Danek, executive director of anti-abortion group Nebraska Right to Life.
Danek and her group are supporting the 12-week measure. To them, the viability initiative has overly broad exceptions, lenient medical standards and not enough room for regulation.
Nebraska Right to Life is reaching out to voters with emails, signs, events and ads. But she said that only goes so far for such a complicated issue.
“Most voters will not have all this information,” Danek said. “And as hard as we try, the reality is many will not have a clue about what any of this means.”
She hopes Nebraska will reverse the pattern in other states where voters have usually backed abortion rights. To her, the 12-week limit gives voters another choice at the ballot box.
“I think Nebraska could be the first state to reject the trend,” Danek said. “This competing measure helps to reveal the difference between the two amendments, and people will go to that more common-sense approach.”
The viability campaign argues 12 weeks doesn’t provide enough time, especially for complicated pregnancies.
One of their TV ads features Kimberly Paseka, a Lincoln woman who learned late in her first trimester that her baby had a non-viable heartbeat. She said she didn’t get proper medical care.
“I lost that pregnancy at home while caring for my young child,” Paseka said in one ad. “I suffered with pain and bleeding for weeks. So please, vote against 434 and for 439.”
Dr. Elizabeth Constance – an Omaha-based fertility doctor – has seen other cases like Paseka’s in her practice since Nebraska banned abortions past 12 weeks. She said the law affects families who want their babies but encounter complications.
“These are families who have started decorating a nursery. They’ve been picking out baby names,” Constance said. “Then the worst moment of their life happens and they get a terrible diagnosis that changes their lives.”
The 12-week measure is also running ads to reach voters. One features Catherine Brooks, a Lincoln-based doctor who specializes in caring for newborns. Earlier this year, she unsuccessfully sued the Secretary of State to keep the viability initiative off the ballot.
“Initiative 439 pretends to protect our rights. But it does the opposite. It lets government officials interfere in medical decisions,” Brooks says in the ad. “And takes care out of the hands of licensed physicians, when women in crisis need them the most. Protect our patients. Vote no on initiative 439.”
Ashlei Spivey, a campaign leader with Initiative 439, points out the ad only asks for one vote.
“It’s not a vote for theirs, it’s a vote only against ours,” she said. “They are intentionally trying to confuse voters who actually want autonomy and choice and government out of these healthcare decisions.”
In a statement, Brooks said she opposes Initiative 439 because its “fetal viability” standard is unclear.
“Fetal viability is a gray area for medical practitioners,” Brooks said. “Women expect precision from their healthcare professionals, but fetal viability has no precise definition. 439 is not clear, not scientific, and leaves the door open for government interference in women's healthcare."
New strategy
The Brooks ad makes no mention of “unborn life” or “protecting the innocent,” and instead “takes progressive talking points about abortion and flips them for a pro-life message,” according to Rachel Rebouché, a reproductive and family law expert and dean of Temple University’s law school.
Rebouché said the messaging is a new strategy from abortion opponents and follows abortion rights’ unbroken winning streak among voters, even in red states like Kansas.
“The anti-abortion movement has learned a lesson,” she said. “They have learned that they are in a dog fight, and they are losing. It's a new approach knowing that you can't count on people to vote no because they don't believe it.”
She said the ad’s language can speak to people on both sides of the issue, and could foreshadow future strategy for abortion opponents across the country.
“If it’s successful, it is a blueprint for what's coming next, regardless of what the election laws and ballot initiative laws are,” Rebouché said. “This is a new era of crafting an alternative campaign that re-messages what people are actually voting on. They’re taking the offense, not the defense.”