Nebraska Supreme Court Approves Competing Abortion Initiatives for Ballot

The two measures aim to amend the state’s constitution in opposing ways.

Election workers place ballots and instructions into mail-in envelopes at the Lancaster County Election Committee offices in Lincoln, Neb., on April 14, 2020. Nati Harnik/AP Photo

Nebraska voters will decide on two competing abortion initiatives in November after the state’s Supreme Court ruled on Sept. 13 that they could both appear on the ballot.

While one of those initiatives aims to cement a right to abortion in the state’s constitution, the other would prohibit abortion in the second and third trimesters of pregnancy.

On Sept. 9, the court heard arguments in three lawsuits concerning the amendments’ compliance with the state’s single-subject rule.

The justices unanimously denied all three petitions, which sought to bar one or the other of the amendments from the ballot, finding that neither amendment pertained to more than one subject.

The Protect Women and Children amendment states that “unborn children shall be protected from abortion in the second and third trimesters,” except in cases involving rape, incest, or a medical emergency.

The Protect the Right to Abortion amendment would establish the right of “all persons” to abortion until fetal viability, or when necessary to protect the mother’s life or general health in the view of her “healthcare practitioner.”

Fetal viability is typically recognized at about 22 weeks to 24 weeks of pregnancy—well into the second trimester.

Abortion is currently legal in Nebraska through the 12th week of pregnancy, or the end of the first trimester.

Lawsuits

Two of the three lawsuits argued that the right-to-abortion amendment should be stripped from the ballot for violating state law, which requires that petitions stick to just one subject.

The amendment’s challengers argued that the initiative would alter state law in multiple ways. They noted that the amendment would permit late-term abortions, bar regulation of the procedure, and allow nonphysicians to perform abortions. Attorneys also charged that the text of the amendment was confusingly vague.

The court rejected those arguments.

“We determine that the Initiative does not include multiple subjects, and instead, we determine that the provisions of the proposed constitutional amendment are naturally and necessarily related to the general subject,” they wrote in one opinion.

They found the same to be true of the Protect Women and Children amendment.

The amendments’ competing natures mean that only one of them can be enacted in the event that both pass.

In order to pass, there are two thresholds that a Nebraska ballot initiative must meet. First, more people must vote for the measure than against it. The initiative must also receive a “yes” vote from at least 35 percent of all voters casting ballots in the election.

If both initiatives meet those requirements, the one that receives the most support will be adopted.