LINCOLN — Supporters of two competing abortion-related ballot initiatives spent Monday at the Nebraska Supreme Court seeking rulings by Friday’s deadline to finalize the ballot.
Justices heard oral arguments in three lawsuits: two seeking to block an abortion-rights amendment from the fall ballot and one arguing that the competing measures should both appear on the ballot or else neither should appear.
The lawsuits have drawn national attention, because Nebraska could be the first state since Roe v. Wade was overturned to weigh competing abortion measures on the same ballot.
One initiative favors abortion rights. The other favors abortion restrictions. Thus far, every state that has voted on abortion changes since Roe has sided with abortion rights.
Amendments face legal scrutiny
The abortion-rights amendment, put forward by Protect Our Rights, would codify a right to abortion until “fetal viability,” as defined by a treating health care providers. Those providers could define viability on a case-by-case basis. The proposed ballot measure does not set in law the current scientific standard for viability of about 22-24 weeks gestation.
The abortion-restrictions amendment, put forward by Protect Women and Children, would outlaw most abortions after the first trimester of pregnancy but set no floor on how early they could be banned. It would let the Legislature restrict abortion further or ban it entirely.
Both measures include exceptions: for the life or health of the mother in the abortion-rights initiative and for the life of the mother and in cases of rape or incest in the other.
Because the lawsuit arguing that the ballot should contain both or neither of the measures was defensive in nature, much of the discussion focused on the abortion-rights amendment by Protect Our Rights.
Single subject rule
Attorneys on all sides repeated arguments from briefs previewed Sunday by the Examiner, most of which centered on the Nebraska Constitution’s single subject rule.
The rule requires that ballot initiatives address only one topic. The court has applied it more stringently to ballot initiatives than to laws passed by the Legislature.
For example, the Legislature’s recent 12-week gestational age abortion ban survived a similar lawsuit this summer, which had argued Legislative Bill 574 combined too many unrelated ideas.
During oral arguments in July, Nebraska Supreme Court Justice Lindsey Miller-Lerman questioned whether separate standards should exist for ballot measures from the Legislature and those proposed by citizens through petition initiatives.
On Monday, she again probed whether the court’s reading of the Constitution should continue to so narrowly restrict ballot initiatives but grant wide latitude to the Legislature.
Chief Justice Mike Heavican asked why it was OK for laws passed by the Legislature to contain many of the same combined provisions being questioned for an initiative.
Paul Rodney, defending the abortion-rights amendment, said the initiative covers one subject: “limiting government interference with abortion.”
He said the language would change the State Constitution and define legal terms, which he described as standard practice for ballot initiatives.
He cited case law saying the key “consideration in determining singleness of subject is the initiative’s singleness of purpose and the relationship of the details to the general subject.”
More about lawsuits
Jim Campbell, a former Nebraska solicitor general represented the individual sponsors of the Protect Women and Children initiative. Matthew Heffron for the socially conservative Thomas More Society, represented Carolyn LaGreca, a Douglas County woman who ran a shelter for women facing unplanned pregnancies. Local attorney Brenna Grasz represented Dr. Catherine Brooks, a Lancaster County neonatologist.
Campbell said the abortion-restrictions amendment covers one subject. He said the amendment’s subject is “protecting unborn children,” with a secondary and related purpose of protecting women, since both are physically connected.
“All we have to do is show that the first clause dealing with medical emergencies, sexual assault and incest is naturally and necessarily connected,” Campbell said.
Both lawsuits against the abortion-rights amendment argue that codifying a new right to abortion, along with framing that right to restrict state interference and defining viability differently covers too many subjects.
Questions about logrolling
Grasz argued that transforming a right and then delegating its limits to a health care professional are separate subjects.
“Here the two competing rights lack any connection, let alone a natural one,” she said.
Heffron called the abortion-rights measure textbook logrolling. He said that protecting abortion rights until viability might be popular but that later-term abortion could not pass on its own.
“We simply said the clean reading of this initiative, if you read it against the law that is out there, which is required, will make it several subjects, at least,” he said in a follow up interview.
Rodney, who was defending the proposed amendment, countered that hypothetical concerns about the amendment should be left to voters, not the court, and argued that allowing medical providers to determine viability would keep the decisions with qualified people.
Justices John Freudenberg and William Cassel asked about who qualifies as a health care provider to determine viability and what sort of abortion regulation would be allowed.
Rodney said regulation would be allowed, but he noted that the court might have to one day draw the line between regulation and interference with the right to abortion.
“There will still be prevailing codes of professional conduct and other systems in place to prevent providers from going outside of their lanes,” he said.
Both or none lawsuit
The third lawsuit, filed by 29 doctors, led by Dr. Elizabeth Constance, an Omaha-area fertility specialist, aims to keep both measures on the ballot or remove both if one gets disqualified.
The lawsuit argues that both ballot initiatives have met the legal standard to reach the ballot and should be weighed by voters but that if the court determines one initiative fails the single-subject test, then both should.
Campbell said the acknowledgement that both initiatives have met the standard makes the case moot, saying it lacks the necessary jurisdiction and legal dispute.
David Gacioch, the doctors’ attorney in the both-or-none lawsuit, said they chose to be straightforward in their filing because they think both options should qualify for the ballot.
Constance said her group wants voters to have a chance to have a say in “their own personal health care decisions.”
Heavican asked the lawyers whether the Supreme Court has the authority to adjust the timing of how late courts can go in weighing in on petitions.
He seemed to hint that the court may need to seek legislative action in order to intervene sooner in the process, perhaps when ballot initiative signatures are turned in or when petitions get circulated.
Justice Stephanie Stacy was one of several justices who asked about the timing of the lawsuits and the petition process because Secretary of State Bob Evnen must finalize the ballot by Friday.
Attorneys agreed that by certifying both amendments for the November ballot, Evnen was acknowledging that he thought each had met the legal standard on the single-subject issue.
Nebraska Examiner is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Nebraska Examiner maintains editorial independence. Contact Editor Cate Folsom for questions: . Follow Nebraska Examiner on Facebook and X.
