Group of medical pros challenge abortion rights ballot measure based on ‘single subject’ rule

Closeup of election vote button with text that says 2024. (Getty Images)

LINCOLN — More than 30 Nebraska medical providers filed a complaint this week with Secretary of State Bob Evnen alleging that the abortion-rights ballot initiative violates the state’s requirement that voter-fueled changes cover only a single subject.

The proposal, backed by abortion-rights advocates, would codify a right to abortion in the Nebraska Constitution until fetal viability, as determined by a health care provider.

The letter from Lincoln law firm Keating O’Gara argues Protect Our Rights is trying to legally redefine fetal viability as when a fetus can survive outside of the womb at the same time it aims to create a “fundamental right to abortion.”

Argues can’t do more than one thing

The complaint letter argue that a ballot initiative cannot “create a new state constitutional right” at the same time it attempts to take additional separate legal steps.

If Evnen rejects the complaint, the challengers could seek to sue him and the state to try to pull the abortion-rights amendment off the November ballot.

Evnen announced Friday that the measure had enough qualified signatures to be placed on the Nov. 5 ballot.

“The separate sentences of the Measure authorize separate things,” the letter says of the abortion-rights ballot issue. “It unconstitutionally combines two unrelated propositions into one single proposal that must be presented to the voters separately.”

Uses previous legal argument

The letter co-opts both the single-subject and logrolling legal arguments that abortion-rights opponents used in recent months against the state’s newest abortion ban, which outlaws the procedure after 12 weeks gestational age.

In July, the Nebraska Supreme Court sided with the Legislature’s right to combine measures under a single heading or subject. One of the dissenting judges questioned her fellow justices for leaving room for a stricter single-subject interpretation on petitions.

Some of the medical professionals who signed the letter have supported stricter abortion bans. Some of them back a competing ballot initiative that would constitutionally limit abortion to the first trimester of pregnancy and would keep the door open to let the Legislature pass stricter bans in the future. That initiative also qualified for the November ballot, Evnen said Friday.

Also on Monday, a Douglas County woman asked the Nebraska Supreme Court to overrule Secretary of State Bob Evnen and stop the abortion-rights amendment from appearing on the November ballot.

The group behind the abortion-rights initiative, Protect Our Rights, has said it expected administrative and legal challenges from abortion opponents to that effort to let voters decide whether to protect access to reproductive care in the state.

Allie Berry, the campaign manager for Protect Our Rights, described the complaint as “a distraction funded and driven by anti-abortion politicians who are doing everything in their power to undermine the process and lay the groundwork for their ultimate goal: a total abortion ban.”

She said Protect Our Rights respects families and “keeps decisions about abortion personal without government interference.”

“The majority of Nebraskans know that these decisions belong to patients and their trusted medical providers, not politicians, and we will vote like it this fall,” she said. “Our measure was certified by the Secretary of State, and we have followed the appropriate processes every step of the way.”

Who gets to decide?

Dr. Catherine Brooks, a neonatologist in Lincoln and Omaha, was the lead medical provider who signed onto the letter. In a statement, she stressed that the abortion-rights petition expands who decides fetal viability to a “treating health care practitioner.”

Brooks called that definition too broad. She said doctors are “uniquely qualified to determine the medical definition of viability” based on their medical training, education and experience.

“The pro-abortion initiative requires no such training and opens the door to non-physicians, such as midwives, nurses, and doulas, to make viability determinations,” she said. “This is simply unsafe.”

Brooks repeated what many critics of the measure have said publicly, that leaving so many providers the latitude to decide viability risks extending some abortions into the third trimester.

Abortion-rights advocates have called this alarmism and said the medical standard definition of viability is 22 to 24 weeks and that most women and people want decisions about reproductive rights made privately between a woman and her doctor or provider.

The letter also questions the clarity of a third point in the proposed amendment, that the ballot language would tie viability to when a fetus has “significant likelihood of sustained survival without the application of extraordinary medical measures.”

They argue this risks confusion and called on Evnen to overrule his earlier decision to place the matter on the ballot. Evnen has to make a decision soon. Nebraska ballots must be finalized by Sept. 13.

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