Nebraska Supreme Court rules to keep pro-abortion rights measure on November ballot

In a unanimous 7-0 ruling on Sept. 13, the Nebraska Supreme Court decided that two competing abortion measures will appear on the ballot in November’s election. 

The Protect Our Rights measure, put forth by a coalition of five abortion rights organizations, says that the proposed amendment to the state constitution would “provide all persons the fundamental right to abortion without interference from the state or its political subdivisions until fetal viability,” generally considered to be around 24 weeks’ gestation. The other measure would keep the state’s current 12-week abortion ban in place.

Supporters of both measures gathered the 123,000 valid signatures required, and on Aug. 23, Secretary of State Bob Evnen announced that both measures would be on the ballot. But two separate lawsuits were brought to attempt to block the pro-abortion rights measure from the ballot. One of the lawsuits was brought by a Douglas County resident and funded by the right-wing Thomas More Society. The other lawsuit was brought by Dr. Catherine Brooks, a Lincoln anti-abortion neonatologist, along with more than 30 Nebraska medical providers. 

The complaint argued that the abortion rights measure unlawfully addresses more than one issue. “The separate sentences of the Measure authorize separate things,” the letter of complaint reads, according to the Nebraska Examiner. “It unconstitutionally combines two unrelated propositions into one single proposal that must be presented to the voters separately.”

Josh Livingston represented 29 physicians on behalf of Protect Our Rights in a lawsuit asking that the Nebraska Supreme Court either certify both petitions or keep both off the ballot.

“We are very pleased with that outcome,” Livingston told the Nebraska Independent. “From the time we filed, the 29 physicians, their position was, as long as there’s no single-subject issue for one, there’s no single-subject issue for the other, and to put both on the ballot.” 

The justices agreed that the abortion rights measure did not violate the state’s single-subject constitutional law prohibiting a ballot initiative from addressing more than one subject. 

The opposing Protect Women and Children measure would codify the current 12-week abortion ban in the state constitution with exceptions in cases of rape, incest, or threat to the life of the pregnant person.

Matt Heffron, the senior counsel for the Thomas More Society, claimed the pro-abortion rights initiative would force voters “to vote not only for early abortion — which would be a viability abortion — but also, they’d have to accept late-term abortion,” according to WOWT in Omaha. 

Livingston said it’s important to note that the language of the anti-abortion petition mentions banning abortion in the second and third trimesters of pregnancy, but does not explicitly say that it’s protected in the first trimester. “That’s an inference,” he said. “If that gets adopted, then down the road, if the Legislature wants to restrict it even further, it gives them that opportunity.”

A year after the U.S. Supreme Court ruling that overturned Roe v. Wade in June 2022, Nebraska Gov. Jim Pillen signed a bill that changed the statutory limit for abortions from 20 weeks to the current 12 weeks. The law provides no exceptions in cases of fatal fetal anomalies, and any physician who provides abortion care after 12 weeks can be criminally prosecuted.

This November, voters in 10 states are set to vote on ballot measures that would protect reproductive rights: Arizona, Colorado, Florida, Maryland, Missouri, Montana, Nebraska, Nevada, New York, and South Dakota. 

Livingston said he’s hopeful that Nebraskans will vote in favor of expanding access to reproductive health care in the state. 

“If medical practitioners — and from our perspective, at least 29 medical practitioners — are saying we believe that expanded access to health care is a benefit to Nebraska patients, there should be some credibility given to those doctors and their experience,” he said.