Justices on the Nebraska Supreme Court are weighing whether to allow two proposed abortion-related amendments on the state’s general election ballot.
The court heard arguments on Sept. 9 as to whether the citizen-led initiatives meet the state’s single-subject requirement and whether they should be treated equally.
Nebraska Secretary of State Robert Evnen approved both citizen-led initiatives to go before voters on Nov. 5, and three lawsuits ensued.
Claims of Vagueness, Legal Violations
The court first heard arguments opposing the right to abortion amendment. Attorney Matthew Heffron, representing Douglas County resident Carolyn LaGreca, argued that the amendment pertains to three subjects, not just one.
The initiative, the lawyer contended, would allow late-term abortions, bar limitations on the procedure, and permit nonphysicians to preside over abortions.
“This is a sea change in the current Nebraska Law, which was ... popularly enacted by representatives, and each one of these should be voted on by the voters separately,” Heffron said, calling the initiative a “textbook case of logrolling.”
Another argument that he leveled against the amendment was that its language is overly broad. Pointing to the terms “health” and “health practitioner,” Heffron said these terms could encompass all manner of health conditions or medical professionals and would likely spark further litigation.
Brenna Marie Grasz, counsel for Lincoln-based neonatologist Dr. Catherine Brooks, agreed that the text of the amendment is too vague. She noted that the amendment establishes the right of “all persons” to abortion—not just pregnant women.
“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.
That could also include children, Protect Our Rights attorney Paul Rodney acknowledged in response to a question from the court. However, he added that he did not believe the law would allow for compelled or forced abortions.
Rodney also agreed that the amendment expands the list of those legally permitted to make medical determinations regarding a woman’s pregnancy from physicians to other medical professionals.
Asked whether the new list would also include dentists, massage therapists, and athletic trainers, he said he did not believe that to be the case.
“We assume, and it’s our expectation, that the court will draw some boundary at some point, probably. But it would be the expectation that it will be a health care provider who has the expertise to provide care to a pregnant patient,” he said.
As for the single-subject rule, Rodney contended that the amendment pertains only to one subject: “limiting government interference with abortion.”
Equal Treatment
In the third lawsuit, attorney David Quinn Gacioch, representing a group of current and former physicians, held that the state’s single-subject test should be applied equally to both amendments.He said that the challenge was filed in response to the lawsuit concerning the pro-abortion amendment and that his group believes both amendments qualify under the test.
“What we would urge the court to do is to affirm and leave undisturbed Secretary Evnen’s decision to certify both questions for the ballot,” Gacioch said.
He argued that both amendments would fail if the court took a narrower approach to that test.
The Protect Women and Children initiative, he said, would prevent certain regulations in the second and third trimesters of pregnancy while creating rights for the unborn as well as pregnant women in cases of rape, incest, and medical emergencies.
Gacioch also held that the initiative’s use of the term “unborn children” would open up a “Pandora’s box” of legal consequences—an argument that the defense’s attorney, James Campbell, said should be rejected outright.
“That argument pretends as if this initiative read that all uses of ‘persons’ in the Nebraska Constitution shall now include unborn children. But that’s not remotely what this provision says,” Campbell said.
The term “unborn children,” he noted, is not new to Nebraska law.
“The Legislature uses it all the time,” he said.
Campbell further held that the pro-life amendment pertains to only one subject: protecting unborn children from abortion after the first trimester. He contended that the second clause regarding exceptions is naturally connected to the first and is in alignment with current law.
As for the alleged need to treat the two cases equally, Campbell said, “I just do not think that is right.”
He argued that the text of the pro-abortion amendment creates competing rights for the pregnant woman and potential third parties.
Campbell said of the pro-life amendment: “Only one class of individuals is given one category of rights. That is unborn children protected from abortion.”
He said that Gacioch’s concession that he agrees with the secretary of state’s decision to approve both initiatives shows that there is no controversy for the court to decide.
Nebraska’s deadline for initiatives to be placed on the ballot is Sept. 13.
Nine other states—Arizona, Colorado, Florida, Maryland, Missouri, Montana, Nevada, New York, and South Dakota—have approved proposed abortion-related amendments for their general election ballots.
