By Annie Gowen
(c) 2024 , The Washington Post
OMAHA – Nebraska’s competing constitutional initiatives on abortion can remain on the November ballot, the state’s Supreme Court ruled Friday, paving the way for an unusual, high-stakes battle on the issue to play out in the conservative red state.
The court agreed that a proposed amendment to the Nebraska constitution does not violate the state’s single-subject rule, which prohibits a ballot measure from addressing more than one subject.
The Protect Our Rights measure would amend the state constitution to provide “all persons the fundamental right to an abortion without interference from the state” until fetal viability – around 24 weeks.
The initiative “has a singleness of subject” and therefore does not violate the requirement, the justices wrote. They denied a separate petition that asked the court to dismiss the two competing initiatives – the abortion rights question and one that seeks to codify the state’s current 12-week ban – if a violation were found.
Volunteers on each sidespent months gathering the requisite 123,000 signatures for the citizen-led proposals. Nebraska’s Secretary of State Bob Evnen, a Republican who approved both measures in August, said it was probably the first time in state history that two initiatives on the same topic moved forward in the same election year.
Allie Berry, the campaign manager of Protect Our Rights, called Friday’s court decision “a victory for all Nebraskans.” In a statement, she decried the “desperate lawsuits” meant to silence Nebraskans “by preventing them from voting on what happens to their bodies.”
But Matt Heffron, who helped argue for the opposition as senior counsel for the conservative Thomas More Society, expressed dismay. He said “deceptive language” in the proponents’ petition will confuse voters. And if their amendment passes, he warned, it will allow for “unregulated late-term abortion presided over by non-physicians — and that’s a sea change.”
The Supreme Court had to rule by Friday, the deadline for the state’s ballot certification.
The decisioncame amid a flurry of last-minute legal activity in several states with abortion initiatives on the November ballot where voter turnout could sway the electorate. In total, voters in nine other states will decide such measures this fall.
In Missouri, the state’s Supreme Court on Tuesday ordered a proposed amendment on abortion rights to be put back on the ballot. The decision reversed a lower-court judge who ruled last week that the proposal was invalid because it did not properly note which laws it would repeal. In Arkansas, abortion rights supporters did not fare as well, with a judge last monthstriking an abortion proposal from the ballot after election officials said the signatures were not submitted properly.
Amid the legal wrangling in Nebraska, the politicking has already begun. Last Saturday, volunteers from Protect Our Rights – wearing that side’s signature teal T-shirts – handed out leaflets and spoke to voters in one Omaha neighborhood. Their counterparts had staffed a double booth at the State Fair over the Labor Day weekend, with a huge sign overhead that declared “Protecting LIFE at the Polls on Nov. 5.”
Protect Women and Children raised $3.1 million by July 30, the latest filing deadline, and Protect Our Rights raised $2.4 million, according to reports filed to the Nebraska Accountability and Disclosure Commission.
In court Monday, opponents of the measure to expand abortion access had argued that its wording is too vague. They also contended that the proposed constitutional amendment rolled too many issues into a single ballot question, addressing abortion rights before and after viability as well as raising questions about how the state should regulate the procedure.
The forces behind the Protect the Right to Abortion petition labeled those efforts a “nuisance” and accused opponents of seeking to undo Evnen’s approval in court. In a separate case argued Monday, their lawyers maintained that if the court dismissed one petition due to violations of the “single issue” rule, then it should dismiss the other petition as well.
The other measure, advanced by Protect Women and Children,would amend the state constitution to say that “unborn children shall be protected from abortion in the second and third trimesters” of a pregnancy except in cases of a life-threatening emergency, rape or incest. That essentially would enshrine the current prohibition on abortion after the 12th week of pregnancy into the constitution.
Since the U.S. Supreme Court overturned Roe v. Wade in 2022, nearly two dozen states have implemented total or partial abortion bans. On Thursday, a judge overturned North Dakota’s near-total law, though the state has said it will appeal. Only Nebraska and North Carolina restrict the procedure at 12 weeks.
The Nebraska legislature passed its ban,along with a ban on gender-affirming treatment for minors, in May 2023. No exceptions are allowed for fatal fetal anomalies, and doctors who perform abortions are not protected from criminal prosecution.
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Anu Narayanswamy contributed to this report.