Dueling abortion measures make ballot, Nebraska Supreme Court decides

LINCOLN — The Nebraska Supreme Court won’t stop the state’s voters from being the first nationally to weigh competing abortion-related initiatives on the same ballot since Roe v. Wade was overturned in 2022.

The court weighed constitutional questions this week raised by three lawsuits: two seeking to block an abortion-rights amendment and one arguing that both measures should appear on the ballot or neither should reach it.

Justices, in a unanimous 7-0 ruling, decided both initiatives met the Nebraska Constitutional requirement that ballot measures cover no more than a single connected legal subject.

The court has typically applied the single-subject rule more strictly to ballot initiatives than to bills passed by the Legislature. Justices’ questions during Monday’s oral arguments hinted some were open to a broader view.

Lawyers for both amendments had argued that their measures each passed the single subject test because they fit under broader subject statements and because abortion-related laws had covered similar changes. 

Many of the arguments against the abortion-rights amendment hinged on whether creating a new right to abortion and then defining the timing and clarifying who gets to decide counted as a singular change.

Part of the legal argument against the abortion-restrictions amendment hinged on whether adding exceptions to the ban after the first trimester constituted a second subject.

“We have followed and continue to follow the natural and necessary connection test that we have set forth as follows: Where the limits of a proposed law, having natural and necessary connection with each other, and, together, are a part of one general subject, the proposal is a single and not a dual proposition,” Justice Lindsey Miller-Lerman wrote for the court.

Likely the last hurdle

The court’s decision is likely the last legal hurdle to placing dueling amendments on the November ballot from Protect Our Rights and Protect Women and Children.

Friday is the deadline for Nebraska Secretary of State Bob Evnen to finalize the fall ballot, a date driven by federal law and the need to send ballots by mail to Nebraskans deployed by the military or abroad.

The abortion-rights amendment by Protect Our Rights would codify a right to abortion until “fetal viability,” as defined by a treating health care provider. It sets no specific number of weeks.

The current scientific standard for viability is at about 22-24 weeks gestation. Nebraska’s current law on abortion timing, which the Legislature passed in 2023, prohibits abortions after 12 weeks gestational age.

The abortion-restrictions amendment by Protect Women and Children would outlaw most abortions after the first trimester of pregnancy. It sets no floor on how early the Legislature could ban abortions. It would let state senators pass an outright ban in the future.

Both proposed amendments include exceptions language: 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 restrictions amendment.

One lawsuit filed defensively

The lawsuits against the abortion-rights amendment were filed by Carolyn LaGreca, a Douglas County woman who ran a shelter for pregnant women, and Dr. Catherine Brooks, a Lancaster County neonatologist.

The Protect Women and Children Nebraska Committee said in a statement after the ruling: “In November, voters have the choice to reject the extreme Protect the Right to Abortion amendment that invites government intrusion between a woman and her doctor. … Nebraskans overwhelmingly support preserving health and safety standards and commonsense protections for women and children.”

Brooks, the neonatologist who sued to stop the abortion-rights amendment from reaching the ballot, said she and others were disappointed in the court’s decision. She repeated her legal team’s argument that the amendment would too broadly expand who decides when a pregnancy is “viable.”

“Nebraska women and medical professionals should not be subjected to vague, unscientific standards, while dangerously expanding the scope of abortion practice,” she said in a statement.

Matthew Heffron, the attorney for LaGreca on behalf of the socially conservative Thomas More Society, said the court should not have allowed the Protect Our Rights proposal to go forward, calling it “intentionally deceptive” and a Trojan horse.

“If passed, this would be a sea-change, overturning nearly 50 years of Nebraska laws on abortion,” he said.

Josh Livingston, a lawyer for the doctors on behalf of Protect Our Rights, credited the court for standing up for the power of ballot initiatives in the democratic process.

“Thanks to these 29 physicians and countless others, the right to reproductive healthcare remains on the ballot,” Livingston said. “This ensures Nebraska voters will have the opportunity for their voices to be heard in November.”

Allie Berry, campaign manager for Protect Our Rights, said in a statement that “anti-abortion politicians forced an abortion ban into law and then coordinated with activists to launch desperate lawsuits to silence over 200,000 Nebraskans.”

“They know Nebraskans want to end the harmful abortion ban and stop government overreach in their personal and private healthcare decisions,” she said.

The lawsuit against both amendments, filed defensively to have the court validate both measures for the ballot or neither, represented 29 doctors, including Omaha-area fertility specialist Dr. Elizabeth Constance.

That case was rejected 7-0 as well. 

So far, every state that has voted on abortion changes since Roe has sided with abortion rights. But none yet had two amendments offering different options, an oddity drawing national donors and public attention.

If both abortion-related ballot measures pass and are deemed in conflict with one another, the one that receives the most votes would become law.

During oral arguments on Monday, several justices, including Chief Justice Mike Heavican and Justice Stephanie Stacy, questioned the condensed ballot measure certification process that delayed lawsuits against this year’s ballot measures. 

This story was originally published by the Nebraska Examiner