Nebraska Supreme Court hears abortion petition arguments days before state ballots finalized

LINCOLN, Neb. (WOWT) - Time is running out to place abortion rights on the Nebraska ballot.

Those behind each of the state’s opposing petitions faced off at the Nebraska State Court on Monday to argue over whether the petition to add abortion rights to the state’s constitution should be allowed on the ballot.

The justices need to move quickly since Secretary of State Bob Evnen must certify the ballots for the November ballot by Friday. That means he needs to know by then whether the court will allow them to go before voters or not. Before the Supreme Court stepped in, Evnen certified both abortion petitions for the ballot.

Chief Justice Mike Heavican said out loud what many in court were thinking: “It would seem the box we are all in now is not a very good box.”

The court is deciding what goes on the ballot regarding two different abortion petitions, and making the call in a matter of days not weeks. The justices will also be considering a challenge to the ballot initiative challenging private school scholarships, set to be heard Tuesday afternoon.

“Within in the confines of the only structure we have, the only issue is whether there is a single subject at this time, pre-election. We believe it is. It’s limiting government interference with abortion,” said Paul Rodney with Protect the Rights to Abortion.

Opponents argued the petition adding abortion protections includes more than one subject, which is unconstitutional in Nebraska, and should not be on the state’s November ballot.

“We find this to be a very deceptive initiative and it does not inform the voters properly and it doesn’t give voters choices. It’s anti-democratic,” Matt Heffron, senior counsel with the Thomas More Society, said during arguments on Monday.

It wasn’t just “single-subject” that was up for debate. Those suporting abortion protections told the court that they believe the ballot issue on abortion restrictions should be heard by the voters. They argued that if one doesn’t qualify as “single-subject,” then the other shouldn’t either.

“We’re seeing it now with the current 12-week ban,” Dr. Elizabeth Constance said. “We are seeing physcians having to call attorneys and hospital administrators in the middle of the night before doing what they know is the right medical thing to do. We’re seeing our patients turned away from hospitals being told that they aren’t sick enough.”

Adding to the confusion: The court was recently OK with lawmakers including all sorts of different subjects in a legislative bill — after throwing out a medical marijuana petition they said was too confusing, ruling organizers should have cut it into two ballot petitions: one allowing medical marijuana and another for regulation and production. This year, organizers did just that, petitioning for one ballot initiative to legalize medical marijuana and another creating guidelines for growing and selling it.

In July, the state’s high court sided with state Attorney General Mike Hilgers, upholding a gender-affirming care and abortion law as a single subject.

Nebraska currently has a 12-week ban.

The signatures are there to put both questions on the November ballot and let voters decide. If approved by voters, the intiative put forward by Protect Our Rights — a grassroots campaign that turned in 207,000 signatures to protect access to abortion — would overturn Nebraska’s 12-week abortion ban. If voters pass the initiative in November, it would amend the Nebraska Constitution to include the right to an abortion until “fetal viability,” which is defined as when a fetus could survived after being born without extraordinary medical measures.

However, the Nebraska Supreme Court, after agreeing last week to hear the lawsuits, will be the deciders. They heard 15-minute arguments from each side starting at 10 a.m. Monday.

Protect Our Rights argues that its abortion rights initiative simply keeps the government from interfering with abortion.

“I understand the single subject issue is obviously complex, we’re hopeful the court will allow Nebraska voters to have their voices heard regarding these initiatives,” said Attorney Josh Livingston with Koenig|Dunne Law Firm, speaking on behalf of Protect Our Rights.

Opponents argue that initiative covers too many topics, is unconstitutional, and should be left off the November ballot.

“The same thing applies to this abortion expansion initiative. it could have broken it up into different initiatives,” said Matt Heffron, Senior Council for the Thomas More Society, which brought forward the challenge. “They chose not to.”

The lawsuit brought by doctors say that both of the initiatives fit the “single-subject” definition, and that both the abortion rights petition and abortion restriction petition belong on the same ballot.

NEBRASKA PETITIONS

Some Nebraskans claim they were misled by petitioners, look to get names removed

Some Nebraskans are sure they signed the wrong petition.

READ THE FILINGS

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Digital Director Gina Dvorak contributed to this report.

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