Ashlei Spivey of the Protect Our Rights petition effort announces that her abortion-rights group collected a record 207,000 signatures. (Aaron Sanderford/Nebraska Examiner)
LINCOLN, Nebraska — The Nebraska Supreme Court won’t stop the state’s voters from being the first nationally to weigh competing abortion-related initiatives on the same ballot since Roe v. Wade was overturned in 2022.
The court weighed constitutional questions this week raised by three lawsuits: two seeking to block an abortion-rights amendment and one arguing that both measures should appear on the ballot or neither should reach it.
Justices, in a unanimous 7-0 ruling, decided both initiatives met the Nebraska Constitutional requirement that ballot measures cover no more than a single connected legal subject.
The court has typically applied the single-subject rule more strictly to ballot initiatives than to bills passed by the Legislature. Justices’ questions during Monday’s oral arguments hinted some were open to a broader view.
Lawyers for both amendments had argued that their measures each passed the single subject test because they fit under broader subject statements and because abortion-related laws had covered similar changes.
Many of the arguments against the abortion-rights amendment hinged on whether creating a new right to abortion and then defining the timing and clarifying who gets to decide counted as a singular change.
Part of the legal argument against the abortion-restrictions amendment hinged on whether adding exceptions to the ban after the first trimester constituted a second subject.
“We have followed and continue to follow the natural and necessary connection test that we have set forth as follows: 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,” Justice Lindsey Miller-Lerman wrote for the court.
Likely the last hurdle
The court’s decision is likely the last legal hurdle to placing dueling amendments on the November ballot from Protect Our Rights and Protect Women and Children.
Friday is the deadline for Nebraska Secretary of State Bob Evnen to finalize the fall ballot, a date driven by federal law and the need to send ballots by mail to Nebraskans deployed by the military or abroad.
The abortion-rights amendment by Protect Our Rights would codify a right to abortion until “fetal viability,” as defined by a treating health care provider. It sets no specific number of weeks.
The scientific standard for viability is at about 22-24 weeks gestation. Nebraska’s law on abortion timing, which the Legislature passed in 2023, prohibits abortions after 12 weeks gestational age.
The abortion-restrictions amendment by Protect Women and Children would outlaw most abortions after the first trimester of pregnancy. It sets no floor on how early the Legislature could ban abortions. It would let state senators pass an outright ban in the future.
Both proposed amendments include exceptions language: for the life or health of the mother in the abortion-rights initiative and for the life of the mother and in cases of rape or incest in the restrictions amendment.