Ballot initiatives have been a winning strategy for abortion rights advocates in their push to prevent or override statewide abortion bans. But anti-abortion activists are now on the cusp of finding a way to challenge them: adding conflicting measures to the ballot.
Nebraska is the only state this year where voters are set to decide the fate of two abortion-related initiatives. One would codify abortion access until fetal viability in the state’s constitution, and the other, which was designed in response to the first, would leave the state’s 12-week ban in place.
“I believe that having a competing initiative will be the tool that is necessary to stop the abortion advocacy groups and their efforts,” said Sandy Danek, president of Nebraska Right to Life, one of the groups organizing behind the anti-abortion initiative. “I hope that we ring through with success so well that the other states say, ‘Maybe this is a possibility for us.’”
After certifying both ballot initiatives, the Nebraska secretary of state said that it was the first time in the state’s history that two conflicting measures would be on the ballot. As a result, since it’s possible both measures are approved by the electorate, the initiative with the most “yes” votes will be the one that is adopted.
Anti-abortion advocates, in general, say they’re not bothered by ballot initiatives enshrining abortion rights because there’s a light at the end of the tunnel: Less than half of states allow signatures to be collected to add constitutional amendments on the ballot. But overall, a dueling initiative might be the strategy the movement needs to fight measures even in those states where abortion rights succeed.
A poll conducted by Split Ticket and SurveyUSA in late August found that both measures received more people saying they would vote “yes” for each than “no,” but the anti-abortion initiative had more support — with 56% saying they’d vote for it compared to 45% for the abortion rights one.
“Nebraska is still socially conservative, and the abortion restrictions tested, while restrictive, by no means equate to a total abortion ban, which we would expect to fare significantly worse,” the pollsters said. (In fact, a petition seeking to grant personhood rights to a fetus, which would effectively ban abortion overall, failed to get enough signatures to get on the ballot.)
Americans’ opinions on abortion are nuanced. The Pew Research Center found that while most people support maintaining access to the procedure, few Americans have absolutist views. Most believe it should be “mostly” legal or illegal or say there are exceptions to their support or opposition.
The way Nebraska’s anti-abortion measure — called the Protect Women and Children initiative — is written touches on that nuance, advocates say.
“The benefit of it is that it matches … how we see public opinion stratified,” Frank Pavone, national director of the anti-abortion organization Priests for Life, told NOTUS. “It gives the voter a sense that they’re not voting for something that is going to go beyond … what they really want.”
The measure wouldn’t codify Nebraska’s 12-week ban into law. Instead, it states that “unborn children shall be protected from abortion in the second and third trimesters.” So if it’s ultimately adopted, it would maintain the status quo in the state while still allowing the state Legislature to pass a more severe abortion ban, Danek said.
“It’s not phrasing it as it will, you know, shall prohibit abortion,” Pavone added. “That way of putting it, it’s very powerful as well. People are going, who doesn’t want to protect children, right? This is where, you know, even undecided folks who look at this can say that sounds pretty good.”
The campaign gathering signatures for the anti-abortion measure said in July it gathered more than the necessary amount of signatures in less time than the abortion rights campaign did for their initiative, called the Protect the Right to Abortion, which is seeking to protect abortion rights until fetal viability and prevent state politicians from regulating abortion before that point.
However, abortion rights advocates say anti-abortion activists managed to get the signatures by misleading voters.
“We did see a lot of misleading information from the opposition during the signature collection,” said Allie Berry, campaign manager for Protect the Right to Abortion. “They claimed that their initiative would protect abortion access. They would say, if you want to protect women’s rights, like this is a petition you should sign.”
Some Nebraska voters have said the anti-abortion campaign misled them to back their cause, including by asking them to sign a “pro-choice petition,” the Associated Press reported in July.
The Nebraska secretary of state said that the office received 312 affidavits from people seeking to have their signatures removed from the anti-abortion petition, compared to 14 affidavits from the abortion rights one. Berry told NOTUS they suspect there were more people who were “tricked” by their opponents, but only a “small percentage” successfully removed themselves from the petition.
When asked why there were more people who removed their names from the anti-abortion petition, Danek said that the numbers were “insignificant.” She added that she had received only one call from someone who wanted to remove her name from the petition, but after she said that “abortion will remain legal for the first 12 weeks” and there were exceptions, the woman decided to leave her name on the petition.
NOTUS obtained materials that Nebraska Right to Life plans to use to campaign in favor of the anti-abortion initiative. The three documents — a palm card, a flyer and an election guide — focus on how the measure “protects” or “safeguards” the state’s 12-week ban, although only two of the three mention that the petition would allow the state Legislature to pass stronger anti-abortion policies, including a more severe ban.
“Our message really needs to hang on public support for 12 and 15 weeks,” John Mize, CEO of Americans United for Life, a national anti-abortion law firm and advocacy group not directly involved with Nebraska’s initiative, told NOTUS. “[Abortion rights advocates] can bark all they want, but if there’s a large public support for 12 and if it’s voted in a ballot initiative, we have public sentiment for this.”
Mize added that a win for the measure maintaining Nebraska’s 12-week restriction would be an “incremental win for the movement.”
Kelsey Pritchard, state public affairs director for Susan B. Anthony List Pro-Life America, another organization campaigning for the anti-abortion measure, said in a statement that the anti-abortion amendment is “very specific to Nebraska because the state has a new 12-week protection in place” so it “isn’t being replicated elsewhere.”
GOP Sen. Pete Ricketts, who donated $500,000 to Protect Women and Children, told NOTUS that Nebraska is a “pro-life state” and said voters would support the anti-abortion measure because it protects the 12-week ban, which is “what our legislature did.”
He said the measure is a “great alternative,” but “whether or not that’s a successful strategy to replicate will depend on how successful we can be in November.”
Other anti-abortion advocates say it can still be imitated.
Steven Aden, chief legal officer and general counsel for Americans United for Life, said Nebraskans think of abortions later in pregnancy as “bad” and “dangerous,” so the trimester approach for the anti-abortion measure was “ideal” and “could be implemented really anywhere in a state that’s looking for a good, solid legislative-style compromise.”
“If pro-life folks come to view the 12-week measure as not a pro-abortion vote, and as most Nebraskans come to recognize that it represents the legislative compromise the state has already hashed out, I like its chances. I really do,” Aden added. “We’ll have to wait and see, but I like its chances.”
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Oriana González is a reporter at NOTUS.