Stapleton bans abortion, Curtis sends abortion ban to November ballot

Stapleton Village Board, Stapleton, Nebraska votes 3-1 to outlaw abortion in city limits.
Stapleton Village Board, Stapleton, Nebraska votes 3-1 to outlaw abortion in city limits.(Courtesy)
Published: Aug. 12, 2022 at 12:03 PM CDT
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STAPLETON AND CURTIS, Neb. (KNOP) - On Wednesday two municipalities in Western Nebraska considered ordinances which would make performing an abortion or aiding and abetting an abortion illegal within their city limits.

The ordinances before the Stapleton Village Board in Logan County and the Curtis City Council in Frontier County were both the result of citizen initiatives filed by citizens in their municipalities.

The Stapleton Village Board voted 3-1 to wave all three readings and to immediately pass the Stapleton Ordinance Outlawing Abortion which was brought before them by citizen initiative petition. Curtis is putting it on the November ballot for citizens to decide, rather than the elected officials.

Stapleton:

In Stapleton, the citizen initiative was filed by Wanda Osnes. For a successful petition, Osnes was required to obtain 28 signatures, or 15% of registered voters in the Village of Stapleton. Osnes successfully collected 43 signatures. The village board heard from Stapleton residents Wanda Osnes, Brad Osnes, and Sanctuary Cities for the Unborn founder Mark Lee Dickson, all speaking in favor of the ordinance and what they perceived as the need for its immediate passage.

  • Like the ordinances which were passed in Hayes Center in Hayes County and Blue Hill in Webster County in April of 2021, the Stapleton ordinance outlaws abortion, aiding or abetting an abortion, and the possession and distribution of abortion-inducing drugs within their village. The ordinance defines abortion 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 ordinance further states 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 to remove an ectopic pregnancy.”
  • In addition to this, the ordinance allows for abortions “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” but places the burden of this affirmative defense on the doctor performing the abortion.
  • The penalty for violating the ordinance is a fine of $500, but the ordinance is clear that “under no circumstance may the penalty be imposed on the mother of the unborn child that has been aborted.”

When asked why she led the charge to see abortion outlawed in her village, Wanda Osnes shared, “I have always believed that life begins at conception, that abortion is wrong, and I don’t want it in my community.”

When it came time for the Stapleton Village Board to vote on the abortion ordinance, the debate centered on the question of immediate passage vs. sending the ordinance to the November ballot. In the end, the village board voted 3-1 to wave all three readings and to immediately pass the Stapleton Ordinance Outlawing Abortion which was brought before them by citizen initiative petition.

Upon passage of the ordinance, Stapleton resident Brad Osnes thanked the village board for “listening to their constituents and passing this ordinance.”

Curtis:

While the Village of Stapleton was considering their ordinance, so was the city of Curtis. The citizen initiative in Curtis was filed by Michael P. Moses. In order for his petition to be declared successful, he had to obtain 78 signatures, or 15% of the registered voters in the city of Curtis. With the help of several volunteers, he collected 89 signatures. Of those 89 signatures, 84 were found to be qualified signatures of registered voters in the city of Curtis.

Although the opportunity was offered, no citizen or representative from any organization spoke up regarding the ordinance at Wednesday’s meeting.

  • When it came time to vote on the ordinance, a motion was made to by council member Mark Roblee and seconded by council member Tim Nicholson to adopt Resolution 2022-7 for the ballot initiative to be placed on the general election ballot for 2022, as well as to seek out a district court ruling concerning the legality of the ballot measure.
  • The resolution was adopted 3-0.
  • Section 18-2538 of the Nebraska Municipal Initiative and Referendum Act states, “If the municipality seeks a declaratory judgment, only the chief petitioner or chief petitioners will be required to be served. Any action brought for declaratory judgment for purposes of determining whether a measure is subject to limited referendum or referendum, or whether a measure may be enacted by initiative.”
  • Dickson, who was in Stapleton at the time of the Curtis vote, was pleased the council sent the ordinance to the ballot but disappointed to hear that the city will be taking an unnecessary legal action in the process.
  • This is not the first time the Curtis City Council has considered an ordinance outlawing abortion.
Curtis City Council meets Wednesday and opts to let voters decide on November ballot if...
Curtis City Council meets Wednesday and opts to let voters decide on November ballot if abortion and abortion mailed drugs will be legal in Curtis or not.(Courtesy)

In December 2021, City Attorney Jon Schroeder sought a legal opinion on the constitutionality of a similar anti-abortion ordinance before the city council. At the time Professor G. Michael Fenner, Emeritus Professor of Constitutional Law at Creighton University, took the position the ordinance was unconstitutional and in violation of “the core holding of Roe v. Wade, that there is a right to an abortion.”

At that time Schroeder also pointed out the statements which were made in the Omaha World-Herald which quoted the views of several law professors on the constitutionality of the ordinances. One view given was that of University of Nebraska-Lincoln law professor Eric Beger. At the time Berger claimed that outlawing abortion was “clearly unconstitutional” but argued “If the Court were to overrule Roe and Casey, then a local ordinance outlawing abortion would not violate the U.S. Constitution.”

In the end, Schroeder recommended against the ordinance on grounds that it was unconstitutional and that it could open up the city for costly litigation. The Sanctuary Cities for the Unborn Initiative presented a letter from Attorney Jonathan F. Mitchell, the mind behind the private enforcement mechanism of the Texas Heartbeat Act, which offered representation “at no cost to the city or taxpayers for any litigation” which resulted in the passage of the ordinance, but the offer was still rejected, even with Attorney Andrew M. Bath, General Counsel to the Thomas More Society in Omaha, Nebraska, offering to serve as local counsel alongside Mitchell.

The council ultimately rejected the ordinance in a 3-1 vote December, 2021.

Since the Supreme Court has overturned Roe v. Wade, ruling there to be no right to abortion in the Constitution, citizens across Nebraska have called for the Nebraska Legislature to pass a statewide ban on abortion. Attorney Mike Seibel, a graduate of Creighton University School of Law who serves as general counsel for Abortion On Trial in Albuquerque, New Mexico, has been following the growing trend of local governments passing measures both for and against abortion restrictions.

Seibel shared, “On Wednesday morning Dallas, Texas’ City Council voted in favor of passing a resolution to deprioritize the enforcement of Texas’ laws against abortion. On Wednesday night Stapleton, Nebraska’s Village Board voted to outlaw abortion in its entirety.”

“This is the world we are living in. Some want to make laws to protect life, while others want to take the laws their state has passed and do everything they can to ignore them.”

Attorney Mike Seibel, a graduate of Creighton University School of Law who serves as general counsel for Abortion On Trial in NM

When asked about his thoughts of Curtis seeking a declaratory judgment, Seibel expressed surprise.

Seibel expects the abortion battle to become more and more localized throughout the United States. Currently Seibel is working with Dickson in New Mexico with hopes to see cities in his state follow in the footsteps of cities in Texas and Nebraska.

Curtis will not be the only city considering outlawing abortion this November. Other municipalities whose residents will be voting on ordinances outlawing abortion on November 8 include the Village of Arnold in Nebraska and the cities of Abilene, San Angelo, Plainview, and Athens in Texas. Cities in Nebraska whose residents are currently undergoing the citizen initiative process and may go on the November ballot include: Brady, Cozad, Gothenburg, Hershey, Maxwell, Moorefield, Stapleton, Sutherland, and Wallace. While citizen initiatives for Bellevue and Kearney have begun, petitioners are hopeful for a special election date in January if their councils choose not to pass the ordinances.

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