NEBRASKA – One of the most tightly contested issues in the state during the 2024 election is abortion rights.

Two abortion-related measures stand before Nebraska voters, but for this story we dive deeper into Initiative 439 that aims to strike down the current abortion ban after 12 weeks, and replace it to give women a right to abortion until fetal viability.

Unless you’re a fetal medicine specialist or something similar in nation, the big question, or questions many people may not know is what is fetal viability? When is a fetus considered viable?

"Fetal viability can be a moving target. said Fetal Medicine Specialist Dr. Emily Patel. "In general when we're talking about fetal viability, this is typically given a gestational age limit."

According to Nebraska State Statute 28-326, Viability means: "that stage of human development when the unborn child is potentially able to live more than merely momentarily outside the womb of the mother by natural or artificial means."

A vote ‘for’ initiative 439 would enact a right to abortion up to fetal viability, and a vote ‘against’ would keep Nebraska’s current 12-week abortion ban intact.

Dr. Emily Patel is a Maternal Fetal Medicine Specialist in Omaha who says that window for most unborn fetuses is around the 22-24 week range of gestation, but it depends on the baby’s growth for each case.

"There are so many other factors that play into that, that require us to use our medical knowledge and background in conjunction with our neonatalogy colleagues to council patients about in their particular situation if they have a fetus that is actually viable." said Patel.

This means the separation between the state’s current abortion ban and average age of fetal viability is roughly 10-12 weeks apart.

In normal practice, Dr. Patel says two tests are performed on fetuses to detect anomalies or complications during pregnancies. One occurs near Nebraska’s current abortion deadline, and the other, well after it.

"We will routinely do what we call an anatomy ultrasound where we look at the fetus head-to-toe and diagnose any fetal anomalies. That typically happens around 20 weeks," said Patel. "We also have genetic testing that's available that's often done around 11-12 weeks, and that test takes about a week to come back."

The main supporting group for this measure is Lincoln-based ‘Protect our Rights’ who wants to give women their own choice of abortion , and to help prevent some women from being forced to carry non-viable pregnancies to term after the current 12-week cut-off.

There are multiple opposing groups who say the definition of fetal viability is too vague, and the new ‘fetal viability law' would allow some abortions at later than 24 weeks.

The final thing to note is that Initiative 439 is competing with Initiative 434 to keep the 12-week abortion ban in place. 

Since they are two separate measures, both could theoretically pass. 

If that happens, Nebraska Secretary of State Bob Evnen says the measure with the most votes of the two will trump the other, and become law. 

If both measures fail, the legislature can continue to regulate abortion as they see fit, subject to the courts. 

View breakdowns of the other ballot initiatives below: