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ACLU Sues Over Nebraska Law That Restricts Abortion and Gender-Affirming Care

The lawsuit asserts that combining the issues into one bill violates the state’s constitution.

People display signs reading "BANS OFF OUR BODIES" and "DEFEND MEDICATION ABORTION" during an outdoor protest in Washington, D.C., on April 15, 2023.

When a six-week abortion ban failed to pass in Nebraska, Republicans added a 12-week ban into a measure on gender-affirming care. But a new lawsuit argues that such legislation violates the state constitution by combining “two distinct and unrelated subjects” into one bill.

The bill, originally focused on restrictions for gender-affirming care for transgender youth, was amended to include a 12-week abortion ban with exceptions for rape and incest. That abortion ban went into effect immediately upon the bill’s signing, while limits on gender-affirming care for youth under 19 years old are set to go into effect in October.

The national ACLU and the ACLU of Nebraska are suing to block enforcement of Nebraska’s law. Their lawsuit lists two plaintiffs: Planned Parenthood of the Heartland and Sarah Traxler, an obstetrician and gynecologist who provides reproductive services to Planned Parenthood patients.

Nebraska’s attorney general has 30 days to respond to the lawsuit, which was filed Tuesday morning. The ACLU is seeking immediate injunctive relief that could be granted by a judge prior to that 30-day time period.

Chelsea Souder, founder and director of Nebraska Abortion Resources (NEAR), a state abortion fund, told reporters Tuesday that the new law has exacerbated challenges for Nebraskans seeking abortion services. Since Roe v. Wade was overturned last year, Nebraskans have been grappling with a lack of health care providers and limited appointment availability; some have been waiting three to six weeks to get care.

This new law has made it worse, she said. In the first week after the bill was passed, NEAR worked with Planned Parenthood and Chicago Abortion Fund to help nine people leave the state to get reproductive care, Souder said. These were patients who had been scheduled to get abortions in Nebraska before the bill passed.

The impact of the 12-week ban has been immediate, Traxler told reporters Tuesday. Nebraskans are confused about whether they can receive an abortion in the state and afraid to tell those closest to them if they are seeking an abortion, she said.

The new law outlaws abortions after 12 weeks except in cases of sexual assault or incest or when the patient is at risk of dying or suffering major impairment. The law also bans all surgeries for transgender youth, though they typically do not undergo surgery procedures. It would allow trans youth to continue taking puberty-blocking drugs or hormone therapy if treatment began before the law goes into effect and still allows trans youth to seek treatment if they meet requirements that are already standard for most practitioners, like experiencing persistent gender dysphoria.

However, the law places the state’s chief medical officer — an ear, nose and throat doctor appointed by the governor — in control of setting further rules for how minors can access care.

Ruth Richardson, CEO of Planned Parenthood North Central States, said at Tuesday’s news conference that Nebraska’s legislature used “unprecedented” tactics to pass a 12-week abortion ban. Within the lawsuit, the ACLU lays out a timeline of how the bills came to be combined: a Nebraska bill to ban abortion after approximately six weeks of pregnancy stalled. Meanwhile, a bill to restrict gender-affirming care continued to advance.

The gender-affirming care bill was amended with language that resembled the previous abortion ban “in nearly every respect, except it banned abortion at 12 weeks,” the lawsuit says — requiring lawmakers to either vote for or against both proposals simultaneously.

“In my time here, I don’t think we’ve seen a bill like this,” said Jane Seu, legal and policy counsel who has been with the ACLU of Nebraska for two years. To combine these issues “in one bill in order to gain passage on both issues is an unconstitutional maneuver,” she said Tuesday.

Fights for abortion access and gender-affirming care are seen by many advocates of those procedures as inherently linked campaigns for bodily autonomy. In the fight over Nebraska’s new law, those viewpoints are reversed — as proponents of the law argue that banning abortion and targeting gender-affirming care both serve to protect children.

The law’s passage comes after Democratic lawmakers stonewalled the state’s legislative session for weeks in response to efforts to ban gender-affirming care. State Sen. Machaela Cavanaugh, the driving force behind the effort, has continued her filibuster even after the governor signed the new law and as Republicans in the state’s unicameral legislature have been able to advance more bills.

Dr. Alex Dworak, a family medicine doctor based in Omaha, spoke to The 19th this month about the strain of providing gender-affirming care in Nebraska right now — and how watching political attacks on medical care has been the worst moment of his career.

“The amount of pure hatred and animus towards a vulnerable marginalized community, and also the amount of hate directed at doctors like me … it hurts differently than the other things I’ve been through,” said Dworak.

Helping patients through the early days of the pandemic felt like fighting a natural disaster — something that couldn’t be controlled. Now, trying to protect patients means going to the capitol to testify against anti-trans bills — and watching “human cruelty” hurt his patients.

Two of Dworak’s adult transgender patients, a couple, have already moved to Illinois to escape Nebraska’s increasingly anti-trans political environment. He’s written a reference letter for one family of a young trans patient in case they decide to leave the state and try to find a new doctor.

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