Nebraska Supreme Court hears arguments to block abortion
LINCOLN — Supporters of two competing abortion-related ballot initiatives went to the Nebraska Supreme Court on Monday to seek a ruling before a Friday deadline to complete the vote.
The justices heard oral arguments in three lawsuits: two seeking to block an abortion-rights amendment from the fall ballot, and another arguing that neither of the competing measures should appear on the ballot if they did not.
The lawsuits have drawn national attention because Nebraska may be the first state to weigh competing abortion measures on the same ballot since Roe v. Wade was overturned.
One initiative supports abortion rights. Another advocated for restrictions on abortion. So far, every state that has voted on abortion since Roe has supported abortion rights.
Amendment faces legal scrutiny
An abortion rights amendment proposed by Protect Our Rights would codify the right to abortion until the “fetus is viable” (as defined by the treating health care provider). These providers can define feasibility on a case-by-case basis. The proposed ballot measure does not enshrine in law the current scientific standards for survival rates at 22-24 weeks of gestation.
Matthew Heffron (center), an attorney with the conservative Thomas More Society, represents Caroline LaGreca (left), who runs a shelter for women facing unwanted pregnancies. (Aaron Sandford/Nebraska Examiner)
The abortion restrictions amendment proposed by groups protecting women and children would ban most abortions after the first trimester of pregnancy, but would not specify when abortions could be banned. It would allow the Legislature to further restrict abortion 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 cases of rape or incest in the other.
Because lawsuits arguing that the two measures should or should not be included on the ballot are defensive in nature, much of the discussion has focused on Protect Our Rights’ abortion rights amendment.
Single subject rules
Attorneys for each side repeated arguments made in the Examiner’s preliminary briefs on Sunday, much of which focused on the single-subject rule of the Nebraska Constitution.
The rules require ballot initiatives to address only one topic. Courts apply ballot motions more strictly than laws passed by the Legislature.
For example, the Legislature’s recent 12-week abortion ban survived a similar lawsuit this summer that argued Legislative Bill 574 combined too many unrelated ideas.
Dr. Elizabeth Constance, an Omaha-area fertility specialist, is one of 29 doctors who have filed a lawsuit seeking to keep competing abortion measures on the ballot or remove both if one of them is disqualified. measures. She is flanked by her attorneys. (Aaron Sandford/Nebraska Examiner)
During oral arguments in July, Nebraska Supreme Court Justice Lindsay Miller-Lerman questioned whether there should be separate standards for the Legislature’s ballot measures and those introduced by citizens through petition initiatives.
On Monday, she again explored whether the court’s interpretation of the Constitution should continue to limit ballot initiatives so tightly but give the Legislature broad latitude.
Chief Justice Mike Heavican asked why a law passed by the Legislature could contain the same combination of provisions for many of the challenged measures.
Paul Rodney, who defended the abortion rights amendment, said the initiative covered one theme: “limiting government intervention in abortion.”
He said the language would change the state constitution and define legal terms, which he described as standard practice for ballot initiatives.
“The key to determining the unity of subject is the unity of purpose of the initiative and the relationship of the details to the general subject,” he said, citing case law.
More information about the lawsuit
Former Nebraska Deputy Attorney General Jim Campbell represents the individual sponsor of the Protect Women and Children initiative. Matthew Heffron of the socially conservative Thomas More Society represents Carolyn LaGreca, a Douglas County woman who runs a shelter for women facing unwanted pregnancies. Local attorney Brenna Grasz represents Lancaster County neonatologist Dr. Catherine Brooks.
Campbell said the abortion restrictions amendment only touches on one subject. He said the subject of the amendment was “protection of the unborn child” and the secondary and related purpose was the protection of women because the two were physically linked to each other.
“All we have to do is show that the first clause dealing with medical emergencies, sexual assault and incest are naturally and necessarily connected,” Campbell said.
Both lawsuits challenging the abortion rights amendment argue that codifying a new abortion right, limiting the right of state intervention and defining feasibility differently cover too much subject matter.
Questions about logging in
Glaz believes that changing a right and then delegating its limitations to health care professionals is a different subject.
“Here, these two competing rights have no connection whatsoever, let alone a natural connection,” she said.
Oral arguments set for Monday in three lawsuits challenging Nebraska abortion ballot initiative
Heffron called the abortion rights measure textbook mutual support. He said protecting abortion rights before it was available might have been popular, but late-term abortion couldn’t pass on its own.
“We’re just saying that if you violate existing laws, which is required, a clear interpretation of the initiative would at least make it a couple of topics,” he said in a follow-up interview.
Rodney, who defended the proposed amendment, countered that hypothetical concerns about the amendment should be left to voters, not the courts, arguing that allowing medical providers to determine feasibility would allow qualified people to make the decision.
Justices John Freudenberg and William Cassel asked who qualified as a health care provider to determine feasibility and what abortion regulations would allow.
Rodney said regulation is allowed, but noted that courts may one day have to draw the line between regulation and interference with abortion rights.
“There will still be professional codes of conduct and other systems in place to prevent providers from stepping out of their lane,” he said.
There may be no litigation between the parties
A third lawsuit, filed by 29 doctors led by Omaha-area fertility specialist Dr. Elizabeth Constance, seeks to keep the two measures on the ballot or remove one if one is disqualified. its cancellation.
The lawsuit says both ballot motions meet the legal standards for a ballot and should be weighed by voters, but if the court determines that one fails the single-subject test, both motions should pass.
Campbell said admitting both measures met the criteria made the case moot, saying it lacked the necessary jurisdiction and legal arguments.
David Gacioch, an attorney for the doctors in the no-win lawsuit, said they chose to be forthright in their filing because they believed both options should be eligible for the ballot.
Constance said her organization wants voters to have the opportunity to have a say in “their own personal health care decisions.”
Heavican asked lawyers whether the Supreme Court has the authority to adjust delays in hearing petitions before the courts.
He seemed to suggest that courts may need to seek legislative action to intervene in the process more quickly, perhaps when ballot initiative signatures are submitted or petitions are distributed.
Judge Stephanie Stacey was one of several justices who asked about the timing of the lawsuit and the petition process because Secretary of State Bob Even has until Friday to complete the vote.
Lawyers agreed that by certifying the two amendments on the November ballot, Evnen acknowledged that he believed each amendment met the legal standard of a single subject matter.
