Ban on gender-altering procedures expanded to include abortion restrictions, returned to final reading

A bill on final reading that would ban “gender-altering” procedures for minors in Nebraska was modified and expanded to include a 12-week abortion ban after senators voted to return it to select file May 16.

LB574, as introduced by Omaha Sen. Kathleen Kauth, would prohibit physicians in Nebraska from performing or referring an individual under the age 19 for gender-altering procedures, including surgical procedures, hormone therapy and puberty blockers.

A physician who knowingly violates the bill’s provisions would be subject to review by the state’s medical licensing board. An individual who received a gender-altering procedure while under the age of 19, or their parent or guardian, could bring a civil action against the physician within two years of discovery.

The bill also would prohibit the distribution or use of state funds for any entity, organization or individual that provides gender-altering procedures for minors in Nebraska. The provisions of the bill would take effect on Oct. 1, 2023.

LB574 was advanced to the final stage of debate April 14 following a pledge from Kauth to work toward a compromise to be considered on the last round of debate. Bills on final reading cannot be amended, but senators may vote to return a bill from final reading to select file for consideration of a specific amendment.

Senators voted May 16 to return the bill to select file to consider an amendment introduced by Sen. Ben Hansen of Blair. The amendment would modify LB574 and add provisions to enact a 12-week ban on abortion in Nebraska.

The amendment would retain the ban on gender-affirming surgeries for individuals under age 19, Hansen said, but regulations around the use of hormone therapy and puberty blockers for minors would be established by the state’s chief medical officer and the state Department of Health and Human Services.

The amendment also would allow individuals who began receiving gender affirming care prior to the bill’s effect date to continue treatment.

Kauth supported Hansen’s amendment. Calling gender incongruence a “social contagion” that is spreading among young people, she said it is the state’s responsibility to set necessary guidelines to protect children from making life-altering decisions — such as prohibitions already in place against underage smoking and drinking.

“We put in restrictions to protect kids from themselves,” Kauth said, “restrictions that even parents can’t override.”

Kauth also emphasized what she called a lack of scientific consensus about the short- and long-term effects of gender affirming care and said many European countries are rethinking the use of puberty blockers and hormone therapy.

Hastings Sen. Steve Halloran also spoke in support of LB574 and the amendment, saying he was against allowing children to make decisions that would surgically or chemically “mutilate” their bodies.

Lincoln Sen. George Dungan spoke in opposition to the bill and the Hansen amendment, citing concerns regarding the constitutionality of banning medical care only for certain individuals. Federal courts recently ruled a nearly identical ban on gender-affirming care in Arkansas to be unconstitutional, he said, because it discriminates against transgender youth.

“The state’s goal in passing [that bill] was not to ban treatment, it was to ban an outcome that the state deems undesirable,” Dungan said.

Omaha Sen. Machaela Cavanaugh, who has engaged in extended debate on almost every bill this session to express opposition to LB574, said the proposal would set a precedent of prioritizing the government over parents when it comes to decisions about medical care for children.

Hansen’s amendment also includes provisions that would change Nebraska’s current 20-week post-fertilization abortion ban to a 12-week post-gestation ban. The change would calculate a pregnancy from the first day of a pregnant individual’s last menstrual cycle rather than from the moment of fertilization.

Omaha Sen. John Cavanaugh, speaking in opposition to the amendment, pointed out that the difference between the two definitions could be as much as two weeks, which he said actually would make the amendment a 10-week ban.

An attempt earlier this session by Thurston Sen. Joni Albrecht to effectively ban abortion at around six-weeks under her LB626 stalled on the second-round of debate April 27 when it fell one vote short of an attempt to cut off debate and force a vote on the bill.

Ralston Sen. Merv Riepe had attempted to amend LB626 during select file debate. His proposal would have changed the state’s current 20-week post fertilization ban to a 12-week ban and included an exception for a fetal anomaly incompatible with life — defined as one diagnosed before birth that cannot be treated and would, with all reasonable certainty, result in the death of an unborn child within three months.

Riepe’s amendment also would have repealed sections of existing state law outlining criminal penalties for providing unauthorized abortion care. A cloture motion on LB626 failed before lawmakers could consider Riepe’s amendment.

Hansen’s amendment to LB574 would retain exceptions for sexual assault, incest and medical emergencies but does not include exceptions for fetal anomalies. The abortion provisions of the amendment would take effect immediately.

Niobrara Sen. Barry DeKay spoke in support of LB574 and the Hansen amendment. Of the 2,360 abortions performed in Nebraska in 2021, DeKay said, 309 were performed at 12 weeks gestation or later.

“As I see it, the [amendment] would reduce the number of abortions in Nebraska by about 13 percent,” he said, “potentially [saving] the lives of between 300 and 400 children each year.”

Sen. John Cavanaugh of Omaha expressed concern that the Hansen amendment would not repeal existing provisions in Nebraska law that provide criminal penalties for doctors who perform an unlawful abortion.

Riepe supported the amendment, but asked Hansen to commit to work with him next year to address the issue of criminal penalties currently in state law. Hansen agreed.

“I believe most Nebraskans feel that 12 weeks, with reasonable exceptions, is a sensible, reasonable compromise that protects the unborn, protects reproductive rights and is legally defensible,” Riepe said.

Several procedural motions from opponents — including points of order and attempts to overturn rulings from the presiding officer and to return the bill to committee for a public hearing on the Hansen amendment — were unsuccessful.

Lincoln Sen. Danielle Conrad expressed frustration with the debate process and that divisive, national issues had made their way into the Nebraska Legislature.

“I think today was a very sad day where you saw citizens crying out for autonomy and dignity, and you saw the majority bend the rules — if not break the rules — at every turn in order to achieve a desired result,” Conrad said.

After several hours of discussion, Kauth offered a motion to invoke cloture, adopted 33-14, which ended debate on the bill and forced a vote on the Hansen amendment and LB574. Thirty-three votes were needed.

Senators then voted 33-15 to adopt the Hansen amendment and advanced LB574 to final reading on a vote of 33-14.