Abortion remains partially legal in Nebraska, but small towns are trying to ban it anyway
Several small Nebraska towns have decided to take vote on banning abortion locally. While legal experts say the move is merely symbolic — abortion providers are only in metro areas — the moves do send a signal to state lawmakers in the state capitol.
For three weeks this July, Pastor Bill Forbes left his house around 5 p.m. and didn’t return until sundown.
The Lutheran pastor went door to door his western Nebraska town asking his neighbors the same question: Would they sign a petition in support of banning abortions in Paxton?
Paxton, pop. 516, doesn’t have an abortion clinic. It is 230 miles from the nearest abortion provider, located in Denver. It’s further from Lincoln, the closest Nebraska provider.
Forbes said 138 people signed the petition. This November, Paxon residents will get to decide.
Six Nebraska towns, including Paxton, will vote this year on whether to ban abortion within city limits, as the national debate over abortion makes its way into small-town ballot boxes. Three Nebraska towns have already passed their own bans. More cities are gathering signatures to try the same – including Bellevue, home to one of the state’s three abortion clinics.
If passed, these ordinances allow citizens to sue clinics, doctors and nurses for performing abortions in city limits. Many also allow lawsuits against Nebraskans suspected of “aiding or abetting” an abortion – acts like driving a woman to a faraway abortion clinic, or even donating to an abortion fund.
What these efforts have in common: Mark Lee Dickson, an anti-abortion preacher from Texas. Armed with pre-written ordinances, a knowledge of local government procedures and a team of volunteers to collect signatures, Dickson criss-crosses the country, spreading abortion bans from town to town.
The proposed ordinances vary slightly. The goals are the same: Ban abortions and abortion-inducing drugs. Make it unlawful to perform or help someone get an abortion. Some go so far as to try limiting Internet access to abortion-related websites.
In practice, these ordinances may not change much. Except for Bellevue, none of the cities and villages have an abortion clinic. Getting abortion pills in the mail through telehealth is illegal in Nebraska. Law experts say the ordinances may be unenforceable in a state where abortions are legal up to 20 weeks after gestation.
“There’s a very strong argument that even if local governments have some authority, they would be preempted by…state legislation,” said Anthony Schutz, a law professor at the University of Nebraska College of Law. “I think it’s fairly clear that cities don’t have the authority to regulate this.”
Pro-choice advocates in these towns worry that the ordinances – enforceable or not – will create a chilling effect for women trying to find care.
“I’ve seen people do it on their own terms. I’m worried about those lives,” said Erin Pascoe, a registered nurse in Curtis, one of the towns voting on a ban in November. “Making it more inaccessible is just going to worsen that.”
For locals urging the issue, like the Lutheran pastor in Paxton, the proposed bans serve as a message to the rest of Nebraska. About what they believe. About the disconnect they feel from the state’s eastern metro. And about what they want: a Nebraska that’s abortion free.
“We in the Panhandle get shoved around by eastern Nebraska,” Forbes said. “Changes that need to take place to protect our country won’t come from Washington, and they won’t come from Lincoln. Real changes are going to come down here where the grass grows.”
When Laurie Viter’s pastor asked if she wanted to try and ban abortion in her town of Brady, she said yes.
Viter is a counselor at the Women’s Resource Center in North Platte, an anti-abortion pregnancy health center that doesn’t provide or refer people to abortions. She was disappointed when Gov. Pete Ricketts didn’t call a special session to pass some type of ban after the Supreme Court overturned Roe v. Wade in June.
Viter had seen what the village of Hayes Center had done, and she wanted to do the same in Brady.
In April 2021, Hayes Center became the first village in Nebraska to declare abortions illegal within city limits.
The southwest Nebraska town of 224 people joined a group that calls itself “Sanctuary Cities for the Unborn” – a group that now includes 49 towns around the country.
Like Hayes Center, these places are mostly rural, sparsely populated and hundreds of miles away from a brick-and-mortar abortion clinic.
And like Hayes Center, they all passed abortion bans after connecting with Dickson, the preacher from Texas.
Dickson, the director of Right to Life of East Texas, first proposed a local abortion ban three years ago in Waskom, Texas.
The ordinance came with a unique legal twist — it would be carried out through private enforcement. Individual citizens would be the ones to sue clinics, doctors and nurses for performing abortions, or regular citizens suspected of “aiding or abetting” one by, for example, driving a woman to a clinic.
The local policy went on to become state law in Texas, a law Supreme Court Justice Sonia Sotomayor said “deputized the state’s citizens as bounty hunters.”
In Nebraska, versions of the original ordinance have now been adopted in Hayes Center, Blue Hill and Stapleton.
Through the summer, local residents and Dickson’s group gathered enough signatures to put the ban to a vote in six other Nebraska towns this November – Arnold, Brady, Curtis, Hershey, Paxon and Wallace.
The boards and councils in these towns could have passed a ban themselves — that’s Dickson’s preferred route — but instead chose to let voters decide at the ballot box.
Regardless of what the ordinances claim to do, cities and towns in Nebraska likely lack the power to enforce an actual abortion ban, legal experts said.
With Roe v. Wade overturned, whether the ordinances have the force of law behind them becomes a question of state law. The Nebraska Legislature has to explicitly authorize what cities and villages — other than Lincoln and Omaha — have the power to regulate.
State constitutional law experts don’t think that currently includes abortion.
“The one thing I think is relatively clear is that cities have no authority to regulate this sort of thing under Nebraska law,” Schutz said.
Even if they did, ordinances that conflict with state law are unenforceable, the legal expert said.
That makes the proposed bans more like “virtue signaling,” said Richard Rosen, law professor at Texas Tech University.
“If this violates state law, the cases aren’t going to go that far,” Rosen said.
Reached through a spokesman, the office of Nebraska Attorney General Doug Peterson declined comment on the matter.
Dickson insists the ordinances are enforceable. Cities and villages have the power to regulate health and welfare, and he thinks abortion would fall under that purview.
“This is an ordinance that’s meant to protect these communities and the culture of these communities,” he said. “There are people that are wanting Nebraska to be more like Texas.”
Dickson is working with at least 10 more Nebraska towns still gathering signatures. Most are concentrated along the I-80 corridor near North Platte. Interest from Nebraskans grew after he spoke at a fundraising banquet for the Women’s Resource Center last year, he said.
The overturning of Roe v. Wade accelerated those efforts, he said.
Forbes, a registered Democrat and Paxton pastor, said most of the 35 people who regularly attend his Sunday services signed his petition.
Viter, in Brady, had never done anything in politics or spoken before her city council before. Dickson and his volunteers collected all of the signatures in the town of 383, she said.
In Curtis, Melanie Standiford helped collect 47 signatures. Standiford is the news director of KNOP, a TV station and NBC affiliate that serves the area around North Platte. She has extensively covered the very issue she helped petition for in her town.
Curtis calls itself the Easter City of Nebraska. Three crosses overlook the town of 806 from a nearby hill. Everyone she knows is Christian and anti-abortion, Standiford said in an interview with the Flatwater Free Press. In her mind, the ordinance would be so widely supported that it wouldn’t be controversial.
When asked if it was appropriate for a reporter to cover an issue they were politically involved in, Standiford said: “You’re probably right, I probably, maybe shouldn’t have even done that. But who knew it would be an issue?”
This isn’t the first time the city of Curtis has contemplated passing an abortion ban.
Last fall, when Roe v. Wade was still the law of the land in the United States, Dickson presented his ordinance before Curtis City Council. Worried it violated the law, they struck it down.
During that meeting, Erin Pascoe stood before the five men on the city council, explaining why she believed an abortion ban had no place in the town she has called home for 41 years.
Abortion access is already limited in southwest Nebraska, she said. A volunteer EMT and registered Republican, she’s scared a ban could cause legal nightmares for herself and other first responders treating miscarriages.
“This was not in the best interest of women. This was not something that the City of Curtis should even be thinking about,” the nurse said.
Afterwards, she said friends and neighbors that she’d never discussed abortion with thanked her for saying something.
Enforceable or not, the potential abortion bans will still have a chilling effect, said Scout Richters, a lawyer for the ACLU of Nebraska. None of the ordinances actually penalize a woman for having an abortion, but rather target the person performing or aiding an abortion.
The confusion itself is a deterrence, she said.
“They really just sow this spirit of fear and confusion about people’s access to abortion,” Richters said. “The strategy is to do anything possible to limit access to abortion through any means they can.”
How and when the ordinances will be tested by the courts is uncertain, Schutz said. Typically, the Nebraska Supreme Court waits until after a measure has passed to determine its validity. Who the challenge would have to come from is uncertain as well.
“How do we get to the point where the court says, ‘No, city, you can’t do this’? That’s a difficulty, and that’s by design,” Schutz said. “The folks who wrote this have written it in such a way that they can raise as many difficulties as they can.”
Jonathan Mitchell, the lawyer who helped write the ordinances and former solicitor general of Texas, has told towns that he would represent them for free if the ordinances are challenged in court. So far, no ordinance has been struck down in other states. But some towns have walked back which aspects of the law they’ll actually enforce. Two of the 51 towns who have thus far passed an abortion ban actually rescinded their ordinances within months of passing that ban.
Three years of spreading local abortion bans has turned into national prominence for Dickson. He goes from state to state, where he’s become a household name among those fighting to end abortion.
He was in Washington on Jan. 6, 2021, when insurrectionists stormed the Capitol. On Saturday, he spoke at a Nebraskans for Founders’ Values event, which required at least a $20 donation for entry, before spending the afternoon in Bellevue gathering petition signatures.
With no nearby abortion clinic and likely little legal standing, the six votes happening in Nebraska in November may be largely symbolic – Schutz, the law professor, calls them “at most, a waste of time” and also “a political game.” But they do create an opportunity to have conversations about abortion policies at the local, grassroots level. These conversations could turn into larger, statewide policy responses, supporters hope.
“I’m hoping our votes through these small communities speak volumes to those who are representing us [in Lincoln,]” Viter said. “We want our voice to be heard, that we stand for life. We want to see our whole state become abortion-free.”