Oral arguments set for Monday in three Nebraska lawsuits
LINCOLN — Nebraskans preparing to vote this fall on competing proposals to amend the state constitution to add abortion rights or abortion restrictions should pause.
Whether they will be able to vote on either ballot initiative depends on a decision Monday by the Nebraska Supreme Court following oral arguments in three lawsuits seeking to block one or both of the proposals.
Two of the three lawsuits target the abortion rights amendment. Abortion rights advocates filed a third petition asking the court to either allow both proposals to reach the ballot, or neither.
Single battle
Much of the dispute centers on the interpretation of the Nebraska Constitution’s single-subject rule, which prohibits ballot initiatives from addressing more than one subject on a single ballot.
Time is short. Nebraska Secretary of State Bob Evnen has until Sept. 13 to certify that the November vote was legal, making him the target of all three lawsuits.
The stakes are national. Donors and groups are watching whether Nebraska could become the first state since the overturn of Roe v. Wade in 2022 to weigh two competing measures — one supporting abortion rights and the other limit.
So far, voters in every state that has put abortion-related amendments on the ballot have supported abortion rights and rejected abortion restrictions, including neighboring Kansas.
a new approach
Groups seeking to restrict abortion are trying a new approach in Nebraska. Their measure would put a cap, but not a floor, on the legality of first-trimester abortions.
Their amendment would give the Legislature the power to further restrict or ban abortion altogether. It would also limit lawmakers’ ability to relax restrictions beyond gestational age 12-14 weeks. Nebraska’s current law, passed in 2023, prohibits abortion after 12 weeks of gestation.
In July, supporters of the petition to protect women and children, including U.S. Sen. Pete Ricketts, R-Nebraska, posed with a box of signed petitions. (Provided by the Organization for the Protection of Women and Children)
Opponents argued that the amendment put women’s lives at risk and put the government in an examination room between a woman and her doctor.
Nebraska’s abortion rights amendment is largely similar to the one passed in Ohio in 2023.
battle for survival
Opponents argue that this leaves too much room for medical providers to define viability rather than using the current scientific standards of approximately 22-24 weeks of pregnancy.
Both proposed amendments add exceptions: “for the life or health of the mother” in the abortion rights initiative and “for the life of the mother and life following rape or incest” in the abortion restrictions.
Two lawsuits challenging the abortion rights amendment’s support for the restrictions argue it violates the state’s single-subject rule for constitutional amendments.
Both believe that attempts to codify the right to abortion and define that right in new ways to limit state intervention and more loosely define feasibility cover too much subject matter.
Both said creating a “fundamental right” to abortion is separate from efforts to restrict abortion regulation, which could put existing restrictions at legal risk.
Ashlei Spivey of the Protect Our Rights petition announced that her abortion rights organization has collected a record 207,000 signatures. (Aaron Sandford/Nebraska Examiner)
The lawsuit filed by Carolyn LaGreca, a Douglas County resident who runs a shelter for women with unwanted pregnancies, is backed by the social conservative Thomas More Society.
The lawsuit filed by Dr. Katherine Brooks, a Lancaster County neonatologist, is supported by a local group called Defense Women and Children.
The lawsuit filed by 29 doctors, led by Omaha-area fertility specialist Dr. Elizabeth Constance, is backed by Protect Our Rights, an organization organizing the abortion rights amendment.
Both or no parameters
The doctors’ lawsuit says both ballot initiatives meet legal standards for a ballot and should be weighed by voters, but if one fails the single-subject test, both will fail.
It argued that the Abortion Restrictions Amendment would create a ban, add exceptions and recognize the fetus as an “unborn child,” which could put the mother at risk of civil and criminal legal complications.
Areas where this could cause problems include how people qualify for benefits, whether a fetus is eligible for child support and whether criminal laws apply, the lawsuit says.
Nebraska Secretary of State Bob Evenn speaks after oral arguments in a separate case before the Nebraska Supreme Court. (Aaron Sandford/Nebraska Examiner)
In briefs filed last week for and against the two lawsuits, the groups coalesced around their preferred measures.
Protect Our Rights argued that the Abortion Rights Amendment was crafted under a single theme, defining it as “limiting government intervention in abortion.”
The group Defenders of Women and Children argued that its competing amendment applied to a single subject, which it defined as “protecting unborn children from abortion.”
The dueling sides made similar arguments against whether the amendment they supported should be allowed to include exceptions. Everyone says they should because most of Nebraska’s current abortion laws contain exceptions.
Oral arguments are scheduled for 10 a.m. Monday in the Nebraska Supreme Court. The debate will be broadcast live on Nebraska Public Media.
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