Sam Brown misleads on Nevada abortion referendum limits

Republican Nevada Senate candidate Sam Brown recently expressed disapproval of a Nevada ballot measure to enact constitutional protections for abortion.

Brown said the ballot measure would put “essentially no limit on access to abortion.”

The Nevada Independent obtained a recording of Brown answering a question about his stance on the ballot measure at an Aug. 28 meet and greet in Las Vegas. The statement was the most direct position Brown has taken on the ballot measure as he wages a competitive race to defeat incumbent Democrat Jacky Rosen. 

“I’m not for changing our existing law,” Brown said in the recording. “Our existing law has been in place for over 34 years. The ballot measure would change the law and essentially (create) no limit on access to abortion,” the Independent reported that he said.

Legal and policy experts say Brown misstates what the constitutional amendment would do.

The proposed constitutional amendment places a clear limit on abortions: after fetal viability — the point at which a fetus is likely to survive outside the womb, typically considered to be around 24 weeks of pregnancy — the state can ban abortion unless it is needed to protect the  pregnant woman’s health or life.

Nevada voters will weigh the amendment on their November ballots. It would prohibit the state from restricting abortion access before fetal viability. 

That language is very similar to Nevada’s current law. Voters approved the current law in a 1990 ballot measure; it allows abortion until 24 weeks of pregnancy, and after that if a doctor determines the abortion is “necessary to preserve the life or health of the pregnant woman.”

We contacted Brown’s campaign to ask for evidence and received no reply. 

How the proposed amendment affects Nevada’s abortion access 

If passed, the amendment would constitutionally protect abortion access during the first trimester of pregnancy, and throughout most of the second trimester. Although the existing law protects abortion up to 24 weeks, the amendment would prohibit the state and local governments from infringing on that right without a “compelling state interest.” 

That will largely codify the protections already in place under state law, said David Orentlicher, health law program director at the University of Nevada, Las Vegas law school and a Democratic representative in the Nevada Legislature. That means before viability, there would be few limits on abortion access, he said.

After fetal viability, though, the state could restrict abortion access. 

Brown “seems to be just referring to subsection one (of the amendment) and ignoring subsection two,” Orentlicher said.

The constitutional amendment would also be harder to repeal than the existing Nevada law, Orentlicher said. The ballot measure would need to be approved by a majority of voters in November and again in 2026 in order to be added to the state’s constitution. 

Gretchen Ely, a University of Tennessee, Knoxville social work professor who studies abortion access, said Brown’s statement that the amendment places “no limit” on abortion access is wrong.

The amendment “does actually put limitations on abortion in a similar way to what the current law does,” she said. “The limit is up to viability … unless there’s a medical reason for needing one after that point in time.” 

The proposed amendment defines “viability” as the point at which “there is a significant likelihood of the fetus’ sustained survival outside the uterus without the application of extraordinary medical measures,” as determined by a health care provider. 

The proposed amendment’s opponents, including Nevada Right to Life, have argued the language will let physicians determine that pregnancies are not viable later in pregnancy, allowing for abortions after 24 weeks. 

Abortions late in pregnancy are rare

Abortions after 21 weeks of pregnancy are rare, accounting for 1% of all abortions in the U.S., according to KFF, a health policy research organization. In 2021, 93% of abortions happened in the first 13 weeks of pregnancy, according to Centers for Disease Control and Prevention data. 

Abortions after 24 weeks’ gestation are almost all the result of medical problems that endanger the fetus or the pregnant woman, Orentlicher and Ely said.

“This person’s experiencing some kind of an unexpected medical situation that either puts their life at risk or their health at risk, or they know for some reason that the fetus won’t develop into a viable infant,” Ely said.

Our ruling

Brown said Nevada’s proposed constitutional amendment would place “essentially no limit on access to abortion.”

The amendment does place a limit: abortions after fetal viability, typically around 24 weeks, would be restricted unless needed to protect the pregnant woman’s health. 

We rate this claim False.