By Dave Andrusko
On August 30, the Nebraska Supreme Court agreed with the Thomas More Society to expediate a hearing on a proposed constitutional amendment that would enshrine abortion on demand in the state constitution. The hearing challenging the “Protect the Right to Abortion Constitutional Initiative” will take place next Monday.
The situation in Nebraska is unique. Unless the legal challenge prevails, there will be rival constitutional amendment on the ballot this fall.
Nebraska Secretary of State Bob Evnen has announced that two ballot initiatives (Protect Women & Children and Protect the Right to Abortion Constitutional Initiative) had each gathered enough qualifying signatures to be placed on the November ballot, making Nebraska the first state to carry competing abortion amendments on the same ballot since the U.S. Supreme Court overturned Roe v. Wade in 2022.
According to Nebraska Right to Life, “The Protect the Right to Abortion proposal would codify a right to abortion in the Nebraska Constitution until fetal viability, as determined by a health care provider (approximately 24 weeks gestation). Protect Women & Children would constitutionally protect babies in the womb in the second and third trimesters, consistent with current Nebraska law.”
“It’s vital that Nebraskans understand what these proposed amendments entail,” said Sandy Danek, executive director of Nebraska Right to Life. “The pro-abortion amendment would negate several existing laws that have been enacted over the past decades to protect mother and baby such as prohibitions against partial-birth, dismemberment and web-cam abortions, and parental notification requirements,” Danek added.
Danek stated that the pro-abortion amendment is worded broadly, and terms such as “fetal viability,” “health of the mother,” and “health care practitioner” are left undefined. She provided examples of possible consequences.
The Thomas More Society explained what took place on August 30 in a lengthy press release excerpted below:
On August, 30, 2024, the Nebraska Supreme Court allowed a constitutional challenge against the “Protect the Right to Abortion – Constitutional Initiative” to move forward—agreeing to hear a request for a relatively rare proceeding known as an “original action,” which was presented directly to the state Supreme Court. Thomas More Society attorneys filed on August 30 an amended request for an original action on behalf of Carolyn LaGreca, after Nebraska Secretary of State Bob Evnen issued a statement that he would permit the initiative to be placed on the November 2024 general election ballot, “[b]arring any legal challenges.”
Thomas More Society attorneys argue that the abortion initiative violates the Nebraska Constitution’s Single Subject Rule, which mandates that “[i]nitiative measures shall contain only one subject. In addition to proposing a fundamental right to abortion before viability, the abortion initiative would also establish a right to abortion until birth for undefined “health” reasons. The lawsuit points out that this is a violation of the Nebraska constitutional requirement that voter initiatives only contain one subject.
The lawsuit also lists other misleading language that violates Nebraska’s Single Subject Rule for ballot initiatives. For instance, the “Protect the Right to Abortion” initiative would require that all abortions occur “without interference from the state.” The forthcoming brief will argue that this clause of the initiative would effectively repeal a tremendous number of Nebraska statutes popularly enacted over the last 50 years, such as the state’s dismemberment abortion ban and the parental notification requirement for minors’ abortions. Moreover, laws requiring physician involvement, physician availability for postoperative care, care of born-alive aborted infants, care of post-viability aborted infants, and detailed informed consent requirements, effectively will be repealed if the ballot initiative is accepted by voters.