On November 8, 2022, citizens from six different communities throughout the State of Nebraska will vote on ordinances declaring their communities “sanctuary cities for the unborn,” outlawing abortion within their city limits. Those six communities are the Villages of Arnold (pop. 597), Brady (pop. 428), Hershey (pop. 665), Paxton (pop. 523), and Wallace (pop. 366), as well as the City of Curtis (pop. 939).
While these six communities are the only communities on the November 8 ballot in Nebraska, they are not the only communities in the United States who will be voting on local abortion bans. In Texas, the cities of Abilene (pop.124,407), Athens (pop. 13,121), Plainview (pop. 22,343), and San Angelo (pop. 101,612) will also be voting on bans further restricting abortion access.
While none of the cities voting on abortion bans in Nebraska this November have abortion facilities, residents throughout Nebraska are concerned about the expansion of abortion access into their community. Even before Roe vs. Wade was overturned, the Biden Administration stated its commitment to making sure everyone has abortion access in every zip code. Now, since Roe vs. Wade has been overturned, residents are even more concerned – especially since their state is being recognized more and more as a State whose Legislature is struggling to ban abortion.
Attorney Mike Seibel is a Creighton School of Law graduate who now serves as general counsel for Abortion On Trial. Although he currently lives in New Mexico, Seibel has close ties throughout the cornhusker state and has been paying close attention to the effort to ban abortion at the local level. Seibel shared, “Since Roe v. Wade has been overturned, many states now have total bans on abortion, unfortunately, Nebraska is not one of them. It has been four months since the fall of Roe v. Wade. Other states have outlawed abortion, but not Nebraska. This reality sends a strong message to the abortion industry that Nebraska is not ready to outlaw abortion.”
When asked about his thoughts on small communities outlawing abortion Seibel shared, “Dobbs v. Jackson Women’s Health Organization returned the authority to the people and their elected representatives. That authority to protect the safety and morality of the community extends to even the most basic levels of Government such as the legislative bodies: municipalities and counties.” Seibel continued, “The abortion industry does not seem to care about how small or conservative a community is. When abortion starts being outlawed in entire states, every village and every city in a state which doesn’t restrict abortion can become a target for the abortion industry.”
In his state of New Mexico, former Texas abortion provider Whole Woman’s Health is looking to relocate to Hobbs, New Mexico in Lea County – a county where 79% of voters favored Trump. Seibel continued, “The abortion industry really will go anywhere, and what they do not do with brick-and-mortar, they will do through the mail.”
Abortion Access in Nebraska
Currently, Nebraska has three abortion facilities. Both Planned Parenthood Lincoln South in Lincoln and Planned Parenthood Northwest Center in Omaha are providing the abortion pill through 11 weeks, 0 days, and surgical abortions through 16 weeks, 6 days. C.A.R.E. – Clinic for Abortion and Reproductive Excellence in Bellevue is providing the abortion pill through 10 weeks, 6 days, and surgical abortions through 21 weeks, 6 days.
While it is true there is a ban which seeks to address “telemedicine abortions” in the State of Nebraska, it is not true that the “abortion pill by mail” is banned in Nebraska under state law.
Through their joint-website Nebraskans For Abortion Access, the ACLU of Nebraska, I Be Black Girl, Nebraska Abortion Resources, Planned Parenthood Advocates of Nebraska, and Women’s Fund of Omaha are encouraging Nebraska residents to consider self-managed abortion and receiving abortion-inducing drugs by mail. As they state on their website, “If you or someone you know needs access to abortion care, consider these resources: AbortionPillInfo.org and PlanCPills.org.”
On October 25, Nebraskans For Abortion Access issued a press release about a new tool-kit they are providing to “equip local advocates as they work to stop bans in their cities, towns and villages.” Erin Feichtinger, policy director at Women’s Fund of Omaha wrote, “If there’s ever been a time to get involved in local politics, it’s now. Out-of-state extremists are trying to tell Nebraska communities what they can and cannot do when it comes to abortion care, and this resource will help Nebraskans protect their communities and their neighbors.” Nebraskans For Abortion Access’ new toolkit fighting abortion bans is proof that the abortion lobby wants abortion access in every community.
What do the village “sanctuary for the unborn” ordinances do?
The local abortion bans on the ballot in Arnold, Brady, Hershey, Paxton, and Wallace are almost identical to one another — with the only change being in the names of the communities which they represent. The “sanctuary for the unborn” ordinances for the five villages outlaw abortion and outlaw aiding or abetting an abortion within the jurisdiction of their villages.
The Arnold ordinance states “It shall be unlawful for any person to procure or perform an abortion of any type and at any stage of pregnancy in the Village of Arnold, Nebraska” (D1) and “It shall be unlawful for any person to knowingly aid or abet an abortion that occurs in the Village of Arnold, Nebraska.” (D2) The ordinance is clear, “This section does not prohibit referring a patient to have an abortion which takes place outside the territorial boundaries of Arnold, Nebraska.”
Abortion is defined by the ordinances as “the act of using or prescribing an instrument, a drug, a medicine, or any other substance, device, or means with the intent to cause the death of an unborn child of a woman known to be pregnant. The term does not include birth-control devices or oral contraceptives, and it does not include Plan B, morning-after pills, or emergency contraception.” The ordinances are clear, however, that an act is not an abortion if the act is done with the intent to “save the life or preserve the health of an unborn child; remove a dead, unborn child whose death was caused by accidental miscarriage; or remove an ectopic pregnancy.”
Besides outlawing abortion, the “sanctuary for the unborn” ordinances for the villages declares abortion-inducing drugs to be contraband. (C3) The Brady ordinance states, “It shall be unlawful for any person to possess or distribute abortion-inducing drugs in the Village of Brady, Nebraska.” (D4) The ordinance defines “abortion-inducing drugs” as “mifepristone, misoprostol, and any drug or medication that is used to terminate the life of an unborn child.”
The ordinances are clear to state that they do not include birth-control devices, oral contraceptives, Plan B, morning-after pills, emergency contraception, or drugs or medication that are possessed or distributed for a purpose that does not include the termination of a pregnancy of a human being.
Like the other “sanctuary city for the unborn” ordinances across the state, the village ordinances are enforceable. The Hershey ordinance states, “any person, corporation, or entity who commits an unlawful act described in Section D shall be subject to a fine of $500.” (E1) These fines are immediately enforceable and contain only one exception. “Under no circumstance may the penalty described in Section E1 be imposed on the mother of the unborn child that has been aborted.” (E2) This fine is administered in the same way their village administers any other fine in their village. Some villages have determined that if the law is ever violated in their village, the village clerk would be authorized to send the fine in the mail to the individual in violation of the offense.
What does the Curtis “sanctuary city for the unborn” ordinance do?
The “sanctuary city for the unborn” ordinance which is being considered in Curtis is similar to the village “sanctuary for the unborn” ordinances, but it also adds additional sections with prohibitions and policies and allows citizens to sue those who violate different prohibitions which are outlined in the ordinance.
What is Similar?
Like the “sanctuary for the unborn” ordinances in Arnold, Brady, Hershey, Paxton, and Wallace, the Curtis ordinance outlaws abortion and outlaws aiding or abetting an abortion. Like the aforementioned ordinances, the Curtis ordinance also outlaws abortion-inducing drugs. Under Section 2(a), the Curtis ordinance reads, “It shall be unlawful for any person to procure or perform an elective abortion of any type and at any stage of pregnancy in the city of Curtis, Nebraska. The prohibition in this section extends to drug-induced abortions in which any portion of the drug regimen is ingested in the city of Curtis, Nebraska, and it applies regardless of where the person who performs or procures the abortion is located.” The Curtis ordinance continues in (b) to read, “It shall be unlawful for any person to knowingly aid or abet an abortion described in subsection (a).”
Like the village ordinances, the Curtis ordinance provides a clear penalty for anyone who violates these provisions of the Curtis ordinance. The Curtis ordinance states, “Whoever violates this section shall be subject to a fine of $500.”
What is Different?
The Curtis “sanctuary city for the unborn” ordinance is the only ordinance being considered on the November 8 ballot in Nebraska which includes both a fine and a private enforcement mechanism which allows lawsuits to be filed against those who are found in violation of the ordinance. Section 6(a) states, “Any person, other than the city of Curtis, and any officer or employee of the city, has standing to bring and may bring a civil action against any person or entity that: (1) violates any provision of Sections 2, 3, 4, or 5; or (2) intends to violate any provision of Sections 2, 3, 4, or 5.”
While Curtis is the only Nebraska municipality whose residents are voting this November 8 with an ordinance like this, they are not the only ones in the United States which will be voting on local abortion restrictions which contain a private enforcement mechanism. The ordinances which are being considered by Texas voters in the cities of Abilene, Athens, Plainview, and San Angelo, are similar to the Curtis ordinance in that they have both the fine and the private enforcement mechanism allowing lawsuits as a part of their ordinances.
Unlike the village ordinances, the Curtis Ordinance also prohibits Curtis residents from aiding elective abortions regardless of where those abortions take place. Section 3(a) states, “It is the policy of the city of Curtis to prevent its residents from aiding or abetting the killing of unborn children, regardless of where the abortion occurs.” This section, however, is not enforced by the City of Curtis at all, but only through the private enforcement mechanism outlined in Section 6.
This provision, which prohibits the aiding or abetting of the killing of unborn children – regardless of where the abortion takes place, is similar to provisions which are on the ballot in the Texas cities of Abilene, Athens, Plainview, and San Angelo.
In Section 4(a) the Curtis ordinance forbids anyone to “Manufacture, possess, or distribute abortion-inducing drugs in Curtis; Mail, transport, deliver, or provide abortion-inducing drugs in any manner to or from any person or location in Curtis; or Engage in any conduct that would make one an accomplice to the conduct described in subsections (a)(1) and (a)(2) under the principles of complicity set forth in section 28-206 of the Nebraska Revised Statutes.” Like Section 3, Section 4 is also not enforced by the City of Curtis, but only through the private enforcement mechanism in Section 6.
And lastly, in Section 5(a), the Curtis ordinance states, “No person, corporation, or entity that enters into a contract with the city of Curtis or that receives any grant or funding from the city of Curtis may: (1) Pay for, reimburse, or subsidize in any way the costs associated with an elective abortion . . . (2) Violate any of the abortion laws of the United States, any state or local government, or any foreign jurisdiction . . . Engage in any conduct that would make one an accomplice to an elective abortion under the principles of complicity set forth in section 28-206 of the Nebraska Revised Statutes . . . (4) Use race or sex preferences of any type in employment, board membership, or contracting decisions.” This part of the ordinance also forbids the City of Curtis from funding any contractor in violation of federal, state, and local laws. Like Section 3 and 4, Section 5 is also not enforced by the City of Curtis, but only through the private enforcement mechanism in Section 6.
In addition to these laws, the Curtis ordinance would put into place several policies relating to internet service providers and internet service in public libraries and city-owned buildings.
In Section 7, the Curtis ordinance states, “Every internet service provider that provides service in the city of Curtis shall make all reasonable and technologically feasible efforts to block its users from accessing: (1) Child pornography as defined in 18 U.S.C. § 2256(8); (2) Obscenity that falls outside the protections of First Amendment as interpreted by the Supreme Court of the United States;; and (3) Information or material that is intended to assist or facilitate efforts to obtain elective abortions or abortion-inducing drugs, including but limited to the following websites: (A) aidaccess.org; (B) heyjane.co; (C) plancpills.org; (D) any website operated by an abortion provider or abortion fund; (E) any website or platform for downloading any application or software for use on a computer or electronic device that is designed to assist or facilitate efforts to obtain elective abortions or abortion-inducing drugs; and (F) any website or platform that allows or enables those who provide or aid or abet elective abortions, or those who manufacture, mail, distribute, transport, or provide abortion-inducing drugs, to collect money, digital currency, or other resources.”
Unlike Section 2, the City of Curtis cannot issue any fines against those who violate this section and unlike Sections 2-5, no resident of Curtis can file any lawsuit against anyone who violates this section as this is just a policy and not a law. The Curtis ordinance states, “No direct or indirect enforcement of this section may be taken or threatened by the city of Curtis, or by any officer or employee of this city, by any means whatsoever. The city of Curtis and its officers and employees may, however, ask or encourage internet service providers to comply with the provisions of this section.”
In Section 8, the Curtis ordinance states, “Every public library in Curtis and every government-owned building in Curtis that provides internet service shall operate a technology protection measure with respect to each of its computers with Internet access that protects against access through such computers to any of the following: (1) Child pornography as defined in 18 U.S.C. § 2256(8); (2) Obscenity that falls outside the protections of First Amendment as interpreted by the Supreme Court of the United States; and (3) Information or material that is intended to assist or facilitate efforts to obtain elective abortions or abortion-inducing drugs, including but limited to” the same websites listed previously.
The Curtis ordinance goes on to state, “An administrator, supervisor, or other authority may disable a technology protection measure under subsection (a) to enable access for bona fide research or other lawful purposes” and also states that “Any person who becomes aware that information or material described in subsection (a) is accessible through internet service provided by a public library or government-owned building in Curtis may notify an administrator, supervisor, or other authority and request that it block access to that information or material” but does not provide any penalty or consequence to the violation of this policy.
Do second-class cities and villages really have the authority to pass ordinances outlawing abortion?
All of the Nebraska cities on the November ballot are either in the category of a second-class city (Curtis) or the category of a village (Arnold, Brady, Hershey, Paxton, and Wallace). Nebraska Revised Statutes Section 17-505 states, “In addition to their special powers, cities of the second class and villages shall have the power to make all such ordinances, bylaws, rules, regulations, and resolutions, not inconsistent with the laws of the state, as may be expedient for maintaining the peace, good government, and welfare of the corporation and its trade, commerce, and manufactories, and to enforce all ordinances by inflicting fines or penalties for the breach thereof, not exceeding five hundred dollars for any one offense, recoverable with costs.”
The proposed Paxton “sanctuary for the unborn” ordinance states, “To maintain the peace, good government, and welfare of the village, the Board of Trustees finds it necessary to outlaw abortion within the Village of Paxton. See Nebraska Revised Statutes § 17-207(11).” Paxton is a village. Nebraska Revised Statutes Section 17-207(11) states, “The village board of trustees shall have power to pass ordinances . . . (11) to maintain the peace, good government, and welfare of the village and its trade and commerce;”
The proposed Curtis “sanctuary city for the unborn” ordinance states, “To maintain the peace, good government, and welfare of the city, the City Council finds it necessary to outlaw abortion within the City of Curtis. See Nebraska Revised Statutes § 17-123.” Curtis is a Second Class City. Nebraska Revised Statutes Section 17-123 states, “A city of the second class shall have the power to make regulations to secure the general health of the city, to prevent and remove nuisances within the city and within its extraterritorial zoning jurisdiction, and to provide the city with water.”
For years the State Legislature has treated abortion as an issue that impacts a woman’s health and the Nebraska statutes are clear that “cities of the second class and villages shall have the power to make all such ordinances, bylaws, rules, regulations, and resolutions, not inconsistent with the laws of the state, as may be expedient for maintaining the peace, good government, and welfare of the corporation and its trade, commerce, and manufactories.”
Cities and villages in Nebraska have the ability to make laws which are stricter than the laws of the state of Nebraska as long as those laws do not conflict with state law.
What if the communities are sued for passing ordinances outlawing abortion?
The Village of Hayes Center and the City of Blue Hill both passed their ordinance in April 2021 and the Village of Stapleton outlawed abortion in August 2022. So far not one of the three municipalities has been sued over their abortion ban. However, if any of those communities were to be sued over their ban, a well-experienced attorney has already agreed to represent the cities at no cost to the cities and taxpayers for any litigation which may arise from the passage of their ordinances.
As the architect behind the Texas Heartbeat Act, who defended the law before the Supreme Court of the United States, Attorney Jonathan F. Mitchell is well qualified at defending strong pro-life legislation. The former solicitor general for the State of Texas, who once clerked for Antonin Scalia, has agreed to represent the Villages of Arnold, Brady, Hershey, Paxton, and Wallace, along with the City of Curtis, for any litigation which may result for the passage of their ordinances outlawing abortion at no cost to the city and taxpayers.
In May 2020, when seven cities in East Texas that had passed the ordinance were sued by the ACLU, Mitchell represented the cities, and after three months, the ACLU withdrew their lawsuit. The lawsuit did not cost the cities or the taxpayers one cent and abortion remains outlawed in every city which was sued.
In May of 2021, Planned Parenthood and the ACLU filed a lawsuit against the City of Lubbock for outlawing abortion within their city limits. The lawsuit was filed before the Honorable Judge James Wesley Hendrix of the United States District Court for the Northern District of Texas.
Since the ordinance had been passed by the citizens of Lubbock and not by their Mayor and City Council. Despite the offer for free representation by Mitchell, the Mayor and City Council of Lubbock rejected Mitchell’s offer and hired attorneys in Austin and Lubbock at the expense of the City of Lubbock. Wanting to make sure that Mitchell’s arguments were heard in the case, the citizens of Lubbock requested that Mitchell file an amicus brief with the court. Upon reading the amicus brief, Judge Hendrix invited Mitchell’s arguments to be heard by the court at the May 28, 2021 hearing.
On June 1, 2021, Judge Hendrix ruled in Planned Parenthood of Greater Texas Surgical Health Services, et al. v. City of Lubbock, Texas with a 50-page ruling dismissing Planned Parenthood’s lawsuit for a lack of jurisdiction. This was a great victory for life in Lubbock, Texas. While Planned Parenthood eventually chose to appeal the court’s decision in November 2021, they withdrew their case in January 2022 — the day before the March For Life in Washington, D.C.
In May 2022 the City of Lebanon, Ohio was sued by abortion supporters. While Attorney Jonathan F. Mitchell agreed to represent the City of Lebanon at no cost to the city and taxpayers, and he is doing so, the City of Lebanon chose to also hire an additional attorney in Ohio at the expense of the city and taxpayers. Litigation is currently ongoing, but the pro-life leaders in the community are optimistic that their city will see a victory just as the other cities have experienced.
Will the “sanctuary for the unborn” ordinances prevent women from obtaining necessary healthcare in their communities?
None of the “sanctuary for the unborn” ordinances prevent women from obtaining necessary healthcare in their communities. There is, however, much misinformation out there attempting to convince women that these ordinances “will prevent women from obtaining necessary healthcare in their communities. “
On September 30, 2022, the Nebraska Flatwater Free Press published an article written by Natalia Alamdari entitled “Six Nebraska towns are trying to ban abortion. Will it change anything?” The article, while full of misinformation about the ordinances, contained a window into the perspectives of several Nebraskans “for” and “against” the local abortion bans. One Nebraskan interviewed in opposition to the abortion bans was Curtis resident Erin Pascoe, who serves as a volunteer EMT in her community.
Erin shared with the Flatwater Free Press that she was “scared a ban could cause legal nightmares for herself and other first responders treating miscarriages.” Pascoe said the ordinance “was not in the best interest of women”
Erin’s statements, however, are more based on fear than actual truth. The Curtis “Sanctuary City for the Unborn” ordinance outlaws elective abortions — not abortions which are performed or induced in response to a medical emergency.
The Curtis ordinance, which says, “It shall be unlawful for any person to procure or perform an elective abortion of any type and at any stage of pregnancy in the city of Curtis, Nebraska,” defines “elective abortion” as “any abortion that is not performed or induced in response to a medical emergency” and defines “medical emergency” as “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.”
The village ordinances are also clear in their ordinances that “An act is not an abortion if the act is done with the intent to: save the life or preserve the health of an unborn child; remove a dead, unborn child whose death was caused by accidental miscarriage; or remove an ectopic pregnancy.”
The life of the mother is addressed in the village ordinances under D-3 Affirmative Defense, which state, “It shall be an affirmative defense to the unlawful acts described…if the abortion was in response to a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.”
While many will argue that elective abortion is healthcare and that elective abortions are beneficial to women, the truth is that elective abortion is never healthcare and elective abortions always hurt women.
Dr. Karysse Trandem, an obstetrician and gynecologic surgeon who serves as the National Medical Director for Save the Storks and the International Medical Director for Canopy Global Foundation, has found that research shows that abortion puts women at a greater risk for several health problems.
At the Lubbock March For Life, in January 2021, Dr. Trandem shared that “Healthcare is not abortion.” explaining,
“The risks to women are four-fold. (1) Breast Cancer. Women who have one abortion have a 30 – 40% increased risk of breast cancer in their lifetime. (2) Preterm Birth. Women who have a surgical abortion have a 36% increased chance of having a preterm birth because their cervix was damaged from an abortion. (3) Uterine Damage. There can be a hemorrhage that occurs when an active pregnancy is separated from the wall of the uterus. That can lead to severe hemorrhage, even death, and scarring that prevents future pregnancies. (4) Mental Health Issues. Women who have one abortion have an 81% increased risk of having emotional health problems that stays with them for the rest of their life. Like depression, anxiety, post-traumatic stress disorder, and a higher rate of suicide.”
Abortion hurts women and kills their children. This is why so many across Nebraska are wanting to do their part and make sure that this practice never becomes a reality in their communities.
Could the provision of the ordinances which prohibit “abortion-inducing drugs” negatively impact veterinarians and veterinary clinics?
In the Village of Wallace, Nebraska a concern was raised that the passage of the ordinance would negatively impact the veterinarian and veterinary clinic in Wallace due to the drugs they use for the purpose of animal abortions.
Of course, the village of Wallace is not the first to consider passing a “sanctuary city for the unborn” ordinance which has a veterinarian and a veterinary clinic. As long as no veterinarian or veterinary clinic in Wallace is giving abortion-inducing drugs to other human beings with the intent to cause an abortion on another human being then neither veterinarians nor veterinary clinics should have anything to fear about their businesses being negatively impacted.
The ordinance is clear: What is being banned by this ordinance are drugs that are used with the purpose to terminate the life of an unborn child. The village ordinances define “abortion-inducing drugs” in Section B-5 as . . .
“mifepristone, misoprostol, and any drug or medication that is used to terminate the life of an unborn child.”
According to Section B-3 an “Unborn child” is defined to be, “a natural person from the moment of conception who has not yet left the womb.” No Judge, in their right mind, would ever interpret the Wallace ordinance to be about abortions which are performed on animals. The Wallace “sanctuary for the unborn” ordinance is about abortions which are performed on human beings.
The first three findings of the ordinance are unmistakable on this point:
“(1) Human life begins at conception;
(2) Abortion is a murderous act of violence that purposefully and
knowingly terminates an unborn human life;
(3) Unborn human beings are entitled to the full and equal protection of the laws that prohibit violence against other human beings.”
The village ordinances further define “abortion-inducing drugs” in Section B-5 as not including, “drugs or medication that are possessed or distributed for a purpose that does not include the termination of a pregnancy.” As the context shows, this is not talking about anything other than one who is defined as a person and that which Finding #3 calls an “unborn human being.”
After Hayes Center became the first city in Nebraska to outlaw abortion, Governor Pete Ricketts took notice, commenting,
“Nebraska is a pro-life state, and communities are working to recognize and protect innocent life in a variety of ways. The Biden-Harris Administration is pushing a radical, pro-abortion agenda, and Nebraska must do everything we can to stand against the abortion lobby.”
While it is uncertain what the outcome will be in the communities of Arnold, Brady, Curtis, Hershey, Paxton, and Wallace, especially during a record-breaking primary, one thing is certain, the results of these votes on November 8 will be noticed throughout Nebraska and throughout the United States.
Photos courtesy of Mark Lee Dickson. In the header photo, Katherine Cochran and Katie Helm, Sanctuary Cities for the Unborn ambassadors from Texas, pose with members of the Hershey, Nebraska community interested in seeing abortion outlawed within their village