Oral arguments Monday for three lawsuits against Nebraska’s abortion ballot initiatives

The bench of the Nebraska Supreme Court at the Capitol in Lincoln. (Aaron Sanderford/Nebraska Examiner)

LINCOLN — Nebraskans preparing to vote this fall on competing proposals to amend the State Constitution to add abortion rights or abortion restrictions should press pause.

Whether they get to vote on either ballot initiative hinges on what the Nebraska Supreme Court decides after oral arguments Monday on three lawsuits aimed at stopping one or both of the proposals.

Two of the three lawsuits target the abortion-rights amendment. Abortion-rights advocates filed the third to ask the court to either allow both proposals on the ballot or neither.

Single-subject fight

Much of the fight centers on interpretations of Nebraska’s constitutional single subject rule, which prohibits ballot initiatives from addressing more than one topic in a single vote.

Time is short. Nebraska Secretary of State Bob Evnen, targeted by all three lawsuits for certifying the measures as legal to proceed, must certify the November ballot by Sept. 13.

The stakes are national. Donors and groups are watching whether Nebraska might be the first state since the 2022 overturning of Roe v. Wade to weigh two competing measures — one favoring abortion rights and another favoring abortion restrictions.

Thus far, voters in every state that has put an abortion-related amendment on the ballot have sided with abortion rights and rejected abortion restrictions, including in neighboring Kansas.

A new approach

Groups seeking abortion restrictions tried a new approach in Nebraska. Their measure would set a ceiling after the first trimester on how late into a pregnancy abortion is legal but sets no floor.

Their amendment would give the Legislature the authority to restrict abortion further or ban it entirely. It would also limit lawmakers’ ability to loosen restrictions beyond 12-14 weeks gestational age. Nebraska’s current law, passed in 2023, prohibits abortions after 12 weeks gestational age.

Opponents have argued that the amendment puts women’s lives at risk and puts the government in the exam room between a woman and her doctor.

Nebraska’s abortion-rights amendment largely resembles what Ohio passed in 2023. It would codify a right to abortion until “fetal viability,” as defined by a treating medical provider.

Viability fight

Opponents have argued that it leaves too much room for medical providers to define viability later rather than using than the current scientific standard of about 22-24 weeks gestation.

Exceptions were added to both proposed amendments: for the life or health of the mother in the abortion-rights initiative and for the life of the mother and after rape or incest in the abortion restrictions measure.

Both pro-restriction lawsuits targeting the abortion-rights amendment argue it violates the state’s single subject rule for constitutional amendments.

Both argue the attempt to codify a right to abortion, along with framing that right in a new way to restrict state interference and defining viability more loosely covers too many subjects.

Both say creating a “fundamental right” to an abortion is different from the language’s effort to limit regulation of abortion, potentially putting existing restrictions in legal peril.

The lawsuit brought by Carolyn LaGreca, a Douglas County resident who ran a shelter for women facing unplanned pregnancies, is backed by the socially conservative Thomas More Society.

The lawsuit filed by  Lancaster County neonatologist Dr. Catherine Brooks has support from the local group that organized the competing amendment, Protect Women and Children.

The lawsuit brought by 29 doctors, led by Dr. Elizabeth Constance, a fertility specialist in the Omaha area, is supported by Protect Our Rights, which organized the abortion-rights amendment.

Both or none argument

The doctors’ suit argues that both ballot initiatives met the legal standard to reach the ballot and should be weighed by voters, but that if one fails the single-subject test, then both do.

It argues the abortion-restrictions amendment would codify a ban, add exceptions and recognize fetuses as “unborn children,” risking civil and criminal legal complications for mothers.

Among the areas where this could cause issues, the lawsuit argues, is in how people qualify for benefits, whether a fetus is eligible for child support and whether criminal laws apply.

In briefs filed last week for and against both lawsuits, groups aligned around their favored measures.

Protect Our Rights argued that the abortion-rights amendment was built under a single subject, defining it as “limiting government interference with abortion.”

Protect Women and Children argued that its competing amendment fits under a single subject, defining it as “protecting unborn children from abortion.”

The dueling sides made similar arguments pushing back against whether their favored amendment should have been allowed to include exceptions. Each said they should because much of current abortion law in Nebraska includes exceptions.

Oral arguments are scheduled for 10 a.m. Monday at the Nebraska Supreme Court. Arguments are set to be streamed live on Nebraska Public Media.

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