By ZACH WENDLING
Nebraska Examiner
LINCOLN — The session-long fight in some Nebraska lawmakers’ efforts to further restrict abortion and gender-affirming care for minors could be decided Tuesday evening with a decisive amendment to pair the measures as one proposal.
State Sen. Ben Hansen of Blair unveiled the amendment last Monday to marry two of the most divisive issues this session into Legislative Bill 574, proposed by State Sen. Kathleen Kauth of Omaha. Hansen’s change would add an approximate 12-week abortion ban (though shorter because it’s based on gestation) to the restrictions on gender-affirming care for minors.
Senators who had previously supported, but expressed concerns about, either proposal told the Nebraska Examiner the amendment is an improvement, potentially netting a necessary 33 votes.
The amendment revives efforts to further restrict abortion after State Sen. Merv Riepe of Ralston voted “present” on April 27, killing LB 626, the proposal to ban abortion after an ultrasound detects embryonic cardiac activity. Now, an abortion bill is back in a new form.
Seventy-seven days into the 90-day legislative session, tension and uncertainty have dominated previous stages of debate for these respective measures.
During the final hours of first-round debate on LB 574, opponents blocked supporters from speaking, and during second-round debate, opponents forced consideration of a narrowing amendment that led to a 45-minute pause in deliberations.
Kauth pulled that narrowing amendment in retribution but led “listening sessions” on LB 574, which informed parts of the Hansen amendment.
The fight over LB 574 has also included rules changes that did not weaken or slow the now 11-week filibuster, a threat of censure and an ethics complaint after one lawmaker detailed how the bill would harm her son, who is transgender.
Tuesday’s debate — scheduled for 7-9 p.m. — will likely follow a similar, contentious path, and the vote may not be clear until the last second.
What’s on the table
LB 574 intended to prohibit genital or non-genital surgeries, puberty blockers and hormone therapies before the age of 19. But, if amended, it would prohibit only surgeries.
Instead, the chief medical officer and Nebraska Department of Health and Human Services would regulate the medications.
Thirty national and international organizations endorse gender-affirming care, and the Nebraska Medical Association opposed LB 574.
The Hansen amendment would ban abortions two to three weeks earlier than the 12-week ban offered by Riepe and does not include an exception for fetal anomalies incompatible with life. Exceptions for rape, incest and the life of the mother are included.
Opponents have doubted whether these would be “real” exceptions or just be “lip service.”
The two-hour Tuesday debate sets the stage as a conservative majority is determined to flex its muscles to restrict abortion and gender-affirming care, all in one fell swoop.
Debate roadmap
Debate on LB 727, a sales and use tax exemption proposal, is up first Tuesday and could last up to eight hours. However, a change in filibuster tactics could force LB 574 at any earlier point.
The following is a list of motions that could be offered for Tuesday’s debate in addition to the Hansen amendment. All require 25 votes except for cloture (a move that ends debate), which requires 33.
Motion to recommit to committee: This would return the bill to the Health and Human Services Committee.
It’s also possible there could be a motion to return to Enrollment and Review to fix an error. Known as E&R, this is a quasi-committee and procedural middle ground to prepare bills between stages of debate. However, it’s unclear whether opponents would use this or any other procedural motions in efforts to block the Hansen amendment.
Motion to reconsider: A lawmaker on the successful side of the recommit vote or those who vote “present” could file this. These procedural motions could prevent the following stages, including any consideration of the Hansen amendment.
However, hopes that debate on these procedural motions could last two hours may be short-lived as senators can “call the question,” or force a vote, before all senators wishing to speak have done so. Senators have used this tactic in previous debates to get through motions. Five senators must demand that debate cease, followed by at least 25 votes to do so.
Motion to return for a specific amendment: Any senator could immediately raise a “point of order” and request the presiding officer to rule on the germaneness, or relevance, of the Hansen amendment. If nongermane, consideration would cease because “no motion, proposition or subject, different from that under consideration, shall be admitted under color of amendment,” under the legislative rules.
“Germane amendments relate only to details of the specific subject of the bill and must be in a natural and logical sequence to the subject matter of the original proposal,” the rules continue. “A nongermane amendment includes one that relates to a substantially different subject.”
If the amendment is ruled germane, opponents may seek to overrule the chair, (25 votes, or a majority of those present, are required). The same would be true if the presiding officer ruled the amendment nongermane.
A nongermane ruling is unlikely from Lt. Gov. Joe Kelly (the president of the Legislature) or supporters of the measures who may be presiding in Kelly’s absence. Such a ruling could strengthen a legal challenge down the line.
Kelly is Gov. Jim Pillen’s right hand, and Pillen had a role in crafting the Hansen amendment.
State Sen. Machaela Cavanaugh of Omaha criticized the proposed merging and vowed to call out the relevance of other amended legislation. Some proposals now contain upwards of 20-25 bills.
The Hansen amendment: This cannot be “divided” into its distinct sections as it otherwise could during earlier rounds of debate. The legislative rules forbid this on a motion to return.
A dueling amendment offered by State Sen. John Cavanaugh of Omaha would list specific rules and regulations for puberty blockers and hormones. The same list, with a 12-month waiting period, would allow surgeries to continue in rare circumstances. However, the amendment does not address abortion.
Only one amendment may be adopted on a motion to return, so State Sen. John Arch of La Vista, the speaker of the Legislature, would need to reschedule LB 574 if there are 25 supporters of the Cavanaugh amendment.
Or, if the Hansen amendment failed, the Cavanaugh amendment would be next for consideration.
Motion to return to final reading: LB 574 would need to sit for review for at least one legislative day. This could set final approval of an amended bill for Thursday.
Cloture: This can be done after two hours to end debate, forcing a vote on anything pending.
There is a scenario in which lawmakers can’t amend LB 574 so they attempt to pass it — as is — and send it to Pillen’s desk for approval. However, passage may be unlikely as some supporters have various concerns about the original bill.
Expect extra security
The Nebraska State Capitol will remain open Tuesday night as long as the Legislature is in session. But expect extra security, given the combination of the divisive proposals.
The Nebraska State Patrol wouldn’t discuss details about Capitol Security, but there has been a stronger law enforcement presence during earlier debate on either of these bills.
Supporters and opponents can watch the debate in person but will be divided into different legislative balconies. This effort is to minimize potential conflict and has worked before, Arch said.
Doing so Tuesday could prove complicated if there are people who support or oppose limiting abortion but not gender-affirming care for minors, or vice versa.
Three new issues emerge
Single subject rule: The Nebraska Constitution requires legislative proposals to be focused on a “single subject,” which has raised questions on the Hansen amendment.
Some argue the attempt opens the state up to a possible lawsuit, legal and political experts told the Nebraska Examiner last week.
Expect state senators opposed to one or both proposals to work to lay the legislative history groundwork for a potential legal challenge on the “single subject rule” and supporters to counter that they belong together for different reasons.
Read more about the single subject here.
The chief medical officer and DHHS: The Hansen amendment would authorize the chief medical officer to craft regulation of puberty blockers and hormone therapies. The chief medical officer is a political appointee who was part of the State Board of Health when it issued a statement in support of LB 574. DHHS would set enforcement parameters.
Under the Hansen amendment, no new minors could receive these medications for transition services after Oct. 1 unless new rules are in place. This sets up a timeline of potentially 2025 until new medications can be issued, though there is a “grandfather” clause for minors to continue care.
Opponents worry that delegating regulations to HHS could lead to a “backdoor” ban and that LB 574 is discriminatory in nature because it restricts gender-affirming care only for trans youth, not their cisgender peers.
Expect a fight over who should have the final say in regulating puberty blockers and hormones and what rules and regulations should be in place.
Read more about the proposed roles for the chief medical officer and DHHS.
Fatal fetal anomalies: Riepe proposed an alternative abortion ban timed 12 weeks from fertilization, with specific language allowing abortions later in the cases of fetal anomalies incompatible with life. However, both aspects have changed.
The Hansen amendment instead ties its 12-week ban to gestational age, meaning it is two to three weeks shorter than Riepe’s proposal. Hansen said this would reduce the number of total abortions and follows much of the medical community that times pregnancy by gestation.
Hansen also said he and others who prefer a stricter ban chose to leave out the Riepe language on fetal anomalies because they do not believe that someone should be able to end a life because it is unlikely to live long — or at all — after being born.
Meanwhile, doctors who support abortion rights have argued it is cruel to force women to carry a baby without a brain or lungs to full term, knowing it cannot survive outside of the womb.
Expect a floor fight over leaving out this language and for conservatives to threaten to withdraw support if there is an effort to add it back in.