(OSV News) — Competing initiatives on abortion will remain on the Nebraska ballot Nov. 5, the state Supreme Court ruled unanimously on Sept. 13, the deadline to certify the state’s November ballot.
It was the second ruling in a week keeping such abortion-based initiatives on state ballots. On Sept. 10, the Missouri Supreme Court reversed a lower court’s ruling that an initiative to amend Missouri’s constitution to protect abortion violated state law, and put it back on the ballot.
Nebraska, however, will be the first state to carry competing abortion amendments on the same ballot since the 1973 U.S. Supreme Court’s Roe v. Wade decision legalized abortion nationwide as a constitutional right. The high court overturned its precedent in June 2022, returning abortion laws to legislatures with the Dobbs v. Jackson Women’s Health Organization decision.
The “Protect the Right to Abortion” initiative, which was before the high court, seeks to amend Article I of the Nebraska Constitution by adding a new Section 31: “All persons shall have a fundamental right to abortion until fetal viability, or when needed to protect the life or health of the pregnant patient, without interference from the state or its political subdivisions.”
The other one — the “Protect Women and Children” initiative — would codify a ban on abortion in the second and third trimester, leaving intact the state’s current 12-week abortion ban in the Nebraska constitution, with exceptions for rape, incest and to save the life of the pregnant woman.
That ban went into effect in May 2023, but leaves the vast majority of abortion legal in Nebraska. According to state health statistics from 2021, the year prior to the Dobbs decision, 87.8% of abortions took place up to the 12th week. Statistics from 2022, showed 92.1% of abortions took place up to that point.
Nebraska and North Carolina are the only states which ban abortion at 12 weeks.
On Nov. 5, voters could theoretically approve both measures. But because they’re competing, the Nebraska Secretary of State’s office announced Aug. 23 that the one receiving the most “for” votes would be adopted.
Two lawsuits — one brought by Lincoln, Nebraska, neonatologist Catherine Brooks and the other by Carolyn I. LaGreca, both pro-life advocates — had argued the measure would violate the state’s “single subject rule” for ballot initiatives, since it mentions abortion until viability, abortion after viability, and the state right to regulate abortion. LaGreca is the founder of Women’s Care Center in Omaha, which became Bethlehem House, a shelter for women with unplanned pregnancies.
But Justice Lindsey Miller-Lerman wrote in the opinion, “The fact that the drafters of the Initiative have made certain choices regarding the specific limits, parameters, and definitions does not mean that each such provision is a separate subject.”
Miller-Lerman further wrote, “We note that our decision in this case aligns with a decision of the Florida Supreme Court issued earlier this year” which “rejected a challenge to a voter initiative based on a single-subject provision in the Florida Constitution.”
“Where the limits of a proposed law, having natural and necessary connection with each other, and, together, are a part of one general subject, the proposal is a single and not a dual proposition.”
A third lawsuit argued that if the high court found that the abortion rights initiative failed to comply with the single-subject rule, it also had to find the same for the initiative banning second and third trimester abortion.
However, the high court ruled that — regardless of the outcome of the other abortion initiative — the “Protect Women and Children” initiative also fulfilled the conditions for the single subject rule because the various “parts of the initiative all relate to the same subject.”
Matt Heffron, senior counsel for the Thomas More Society, the Chicago-based public-interest law firm that brought the challenge against the “Protect the Right to Abortion” initiative, told OSV News, “Unregulated late-term abortions are what Nebraskans can expect if this initiative is voted in.”
“The Nebraska single-subject rule is there to keep the voters from being confused or voting for dissimilar things,” he said. “Late-term abortions have never been requested by Nebraska voters.”
Heffron called the initiative’s language “dangerous and deceptive.”
Thomas More Society lawyers also argued that the abortion initiative “opens the determination of viability to a large number of non-physician “health care practitioners,” which, under current state law, “include not only physicians, but also psychiatrists, pharmacists, nurses of varying degrees, and many others.”
In addition to Nebraska and Missouri, ballot initiatives related to abortion are going before voters in Arizona, Colorado, Florida, Maryland, Montana, New York, Nevada and South Dakota.
Vermont, California, Michigan and Ohio have already enshrined abortion as a right in their state constitutions.
“This late-pregnancy abortion measure is unsafe, unregulated, and un-Nebraskan,” Tom Venzor, executive director of the Nebraska Catholic Conference, said, in a statement. “It uses broad, deceptive, and dangerous terms to mislead Nebraskans into adopting the agenda of the abortion industry.”
Venzor said the conference is “confident Nebraskans will reject this late-pregnancy abortion proposal.”
Kurt Jensen reports for OSV News from Washington.
