Nebraska Court Keeps Abortion Petitions on November Ballot (1)

Initiatives to either expand abortion rights or maintain existing restrictions in Nebraska will go before voters in November, the state’s top court decided Friday in response to challenges seeking to remove the questions from the ballot.

The Nebraska Supreme Court denied petitions from two women challenging Nebraska Secretary of State Bob Evnen’s (R) certification of an abortion rights ballot measure from the campaign Protect Our Rights. The proposal, if approved by voters, would amend the state constitution to add a right to abortion until fetal viability, or roughly 24 weeks into pregnancy, and afterward “to protect the life or health of the pregnant patient.”

The seven justices ruled unanimously against the petitioners’ argument that the abortion rights amendment violated the state’s single-subject rule. Justice Lindsey Miller-Lerman wrote in the opinion for the court that components of the text that anti-abortion activists argued would establish multiple rights “are not separate subjects but facets of the singular subject to create a constitutional right to abortion.”

The court also declined a request from physicians challenging a competing amendment from Protect Women and Children that aims to protect “unborn children” from abortion in the second and third trimesters, “except when a woman seeks an abortion necessitated by a medical emergency or when the pregnancy results from sexual assault or incest.” The physicians filed the lawsuit against this petition in response to the other two cases, arguing the state Supreme Court should apply the same legal standards to both amendments.

The ruling confirms the two petitions’ spots ahead of the secretary of state’s Friday deadline to add or remove petitions from the ballot. It will be the first time in state history that conflicting petitions will appear on the same ballot, and comes as Democrats and advocates are ramping up campaigns for abortion rights questions set to go before voters in nine other states in November.

To amend the state constitution in Nebraska, a petition must get more votes in favor than against it and must receive at least 35% of the total votes cast at that election. If both abortion petitions meet these requirements, the one that receives the most votes in support would be added to the constitution.

Allie Berry, campaign manager for Protect Our Rights, said in an emailed statement that the court’s ruling on the abortion rights amendment “is a victory for all Nebraskans.”

“A vote for Protect Our Rights will end the current harmful abortion ban and stop political interference in the future,” Berry said.

Matt Heffron, senior counsel at the Catholic law firm Thomas More Society and one of the attorneys in the lawsuit against the abortion rights petition, said in an emailed statement that his team was “deeply concerned that the Nebraska Supreme Court has allowed this intentionally deceptive initiative to go before Nebraskans for a confusing vote.”

Oral Arguments

The rulings come after the justices heard oral arguments Sept. 9 in each of the three lawsuits.

Brenna Grasz, an attorney at Keating, O’Gara, Nedved & Peter PC LLO, argued on behalf of one of the individuals challenging the abortion rights amendment that the measure would grant a right to “all persons,” and would therefore create a third-party protection beyond Nebraskans who are pregnant.

Grasz also said the amendment aimed to leave it up to health-care practitioners to determine when an abortion is necessary after viability and to decide “when rights end.”

Heffron said in oral arguments that health-care practitioners could be defined too broadly under Nebraska law to include psychologists, athletic trainers, and others who may lack experience in providing abortion care.

Paul Rodney, counsel at Arnold & Porter Kaye Scholer LLP who represented the Protect Our Rights petition, disputed this argument, saying a health-care practitioner in the context of the abortion rights amendment would only include health providers who have the specific expertise to provide reproductive health care.

Attorney David Gacioch of McDermott Will & Emery argued on behalf of the 29 physicians who challenged the Protect Women and Children amendment that “the voters should just be able to decide on the two amendments,” rather than allowing the court to choose which should be on the ballot.

Berry said in an interview last week that the campaign appreciated the support from the physicians, who she said were acting on behalf of the “Nebraskans who really don’t want political interference in their personal medical decisions.”

The lawsuits challenging the Protect Our Rights measure “are just a distraction and a desperate attempt to restrict abortion access here in Nebraska,” Berry said at the time.

The cases are State ex rel LaGreca v. Evnen, Neb., No. S-24-0654, 9/13/24; State ex rel Brooks v. Evnen, Neb., No. S-24-0647, 9/13/24; and State ex rel Constance v. Evnen, Neb., No. S-24-0653, 9/13/24.