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Nebraska Supreme Court hears arguments on trio of lawsuits challenging abortion initiatives [1]

['Erin Bamer World-Herald Bureau', 'Erin Bamer', 'Megan Nielsen', 'The World-Herald', 'Chris Machian', 'Nikos Frazier']

Date: 2024-09

LINCOLN — The Nebraska Supreme Court is considering whether two proposals to alter the state’s abortion policy will qualify for the ballot this November.

The high court heard arguments Monday on a trio of lawsuits challenging two ballot initiatives on abortion, centered on whether the initiatives violate the Nebraska Constitution’s single-subject rule, and whether both initiatives ought to be treated the same way.

Two of the lawsuits ask the high court to remove a Protect Our Rights initiative from the ballot that proposes a constitutional amendment to establish the right to abortion up until “fetal viability,” which is generally considered to be 23 to 24 weeks of pregnancy.

The third requests the court either remove the initiative along with its opposing counterpart, Protect Women and Children, a separate constitutional amendment that seeks to ban abortions after the first trimester of pregnancy with some exceptions, or keep both on the ballot.

Secretary of State Bob Evnen certified both initiatives met the minimum requirements to qualify for the ballot in August. During the arguments Monday, lawyers said that the certification indicated Evnen believed neither initiative violated the state constitution, although Evnen said he would defer to the court’s judgment in response to the lawsuits.

The lawsuits against the abortion rights initiative argue the measure violates a provision in the state constitution that calls on ballot initiatives to stick to one subject. Attorney Brenna Marie Grasz, representing Lincoln neonatologist Catherine Brooks, argued that the language giving “all persons” the right to an abortion would expand the right to third parties outside of the pregnant person.

“The plain, most natural reading of the text is that it includes ‘all persons’: mothers, fathers, parents, personal rights and third-party rights,” Grasz said.

Attorney Paul Rodney, representing the defense, said the natural reading of the ballot language would not indicate a third-party right to abortion would be created by the initiative.

Grasz also argued that allowing abortion rights until “fetal viability” is a separate subject that places the burden of placing the limitation on a health care practitioner, which is also overly broad and isn’t necessary in the creation of the right itself.

Attorney Matthew Heffron, representing Douglas County woman Carolyn LaGreca, further argued that the initiative is a case of “textbook logrolling” that contains broad language that doesn’t account for the nuances most voters are looking for on abortion issues.

Heffron claimed that most voters would likely support allowing abortions until “fetal viability,” but would also oppose “late-term abortions,” especially without further regulations, as he alleged the initiative doesn’t provide.

“They didn’t have to elect such broad language. They chose to,” Heffron said. “And because of that they give no choice to the voters.”

Rodney said that the opposing arguments should be made to Nebraska voters, not the high court in an attempt to remove the issue from the ballot. If voters approve the initiative, he said there could be post-election lawsuits filed that would give the court an opportunity to set boundaries on how the state implements the new right.

In the third lawsuit, attorney David Quinn Gacioch, representing 29 current or former physicians, argued that the same single-subject standards used against the abortion rights initiative would disqualify the abortion restrictions initiative. He noted the initiative includes multiple exceptions to the restriction for instances of medical emergencies, sexual assault or incest, which would need to be decided by individual ballot measures under the same logic.

Gacioch also noted that the initiative provides protection to “unborn children,” which he argued would open up a “Pandora’s box” of legal ramifications because the state constitution does not recognize personhood before birth.

However, Gacioch said his clients do not believe this is the correct standard to use against either initiative. He said the lawsuit was filed to provide a vehicle for the court to apply their judgment evenly between the two measures, allowing either both or neither to go on the ballot. He said without the previous two lawsuits, the challenge would not have been filed.

Attorney James Campbell, defending the restrictive amendment, said that concession invalidated the entire challenge, as it shows there is no controversy for the court to adjudicate.

The single-subject rule has been used against Nebraska ballot initiatives and laws in recent years, with varying degrees of success. In July, the state’s high court denied a challenge making the argument against a new law that restricts gender-affirming care for people under 19, and increased Nebraska’s abortion restrictions to 12 weeks based on gestational age.

However, historically the court has been stricter in interpreting single-subject challenges against ballot initiatives. In 2020, the court threw out an initiative seeking to legalize medical marijuana on the same argument. That same campaign is trying again to make the ballot this year, using two separate petitions.

Here is the language the Protect Our Rights initiative would ask voters to approve:

“Article I of the Nebraska Constitution shall be amended by adding a new section 31 that states as shown: ‘All persons shall have a fundamental right to abortion until fetal viability, or when needed to protect the life or health of the pregnant patient, without interference from the state or its political subdivisions. Fetal viability means the point in the pregnancy when, in the professional judgment of the patient’s treating health care practitioner, there is a significant likelihood of the fetus’ sustained survival outside of the uterus without the application of extraordinary medial measures.’”

Here is the language the Protect Women and Children initiative would ask voters to approve:

“Article I of the Nebraska Constitution shall be amended by adding a new section 31 that states as follows: ‘Except when a woman seeks an abortion necessitated by a medical emergency or when the pregnancy results from sexual assault or incest, unborn children shall be protected from abortion in the second and third trimesters.’”

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[1] Url: https://omaha.com/news/state-regional/government-politics/nebraska-supreme-court-hears-arguments-on-trio-of-lawsuits-challenging-abortion-initiatives/article_587d5c6e-6eb4-11ef-9e9a-43c04f5241fd.html

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