Nebraska and Missouri Courts Consider Arguments Against Abortion Ballot Measures

OMAHA, Neb. — As ballot deadlines draw near, courts in Nebraska and Missouri are deliberating legal disputes surrounding abortion rights that could impact voters’ ability to weigh in on proposed measures.

This week, the Missouri Supreme Court is set to hear arguments regarding an appeal over a proposed amendment aimed at enshrining the right to abortion in the state constitution. Meanwhile, the Nebraska Supreme Court has already begun hearing arguments in three lawsuits intended to either keep one or both abortion initiatives off the ballot.

One of the proposed initiatives in Nebraska seeks to establish a constitutional right to abortion up to viability. It would also allow for later-term abortions if necessary to safeguard the health of the pregnant woman. The opposing initiative aims to embed Nebraska’s existing 12-week abortion ban—passed by the Legislature in 2023—into the constitution, which includes exceptions for rape, incest, and the life of the mother.

Two lawsuits, filed by an Omaha resident and a Nebraska neonatologist, argue that the initiative advocating for expanded abortion rights contravenes the state’s law against addressing more than one subject in legislation or ballot proposals. They contend that the measure, which concerns abortion rights until viability, after viability to protect women’s health, and the state’s regulatory authority over abortion, encompasses three distinct issues.

On the other hand, attorneys defending the abortion rights initiative primarily focused on contesting the language used in the proposal. Attorney Brenna Grasz argued that stating “all persons” would have a fundamental right to abortion implies that such rights could extend to third parties, including parents who might compel a minor to undergo the procedure.

“Is this a single-subject argument?” questioned Chief Justice Mike Heavican.

Attorney Matt Heffron, representing the conservative Thomas More Society, which has filed lawsuits nationwide challenging abortion rights, claimed that the Protect Our Rights initiative combined multiple subjects into one measure. He said it would force those in favor of abortion up to viability to also support further provisions for post-viability abortions, which could undermine their individual beliefs.

Heffron asserted that “This would signify a major shift from current Nebraska law, which was approved by representatives. Each of these elements should be voted on separately.”

In response, Heavican observed that nearly every abortion-related bill previously passed in the Legislature has included subjects regarding exceptions and state regulation.

Heffron contended that lawmakers possess the time and expertise to negotiate these complex issues, whereas voters might enter the ballot box with less information. However, the justices reminded him that a similar single-subject argument reverted by the conservative Florida Supreme Court earlier this year was dismissed.

On the other side of the argument, an attorney challenging the 12-week ban declared that if the court finds the abortion rights measure violates single-subject rules, then the 12-week ban must also be seen in the same light.

Attorney David Gacioch articulated that the arguments made against the abortion rights proposal would indicate that the 12-week ban measure incorporates at least six separate subjects related to regulating abortion across different trimesters and the various exceptions.

Gacioch recognized that insisting on separate measures for each of these components would be as arbitrary as breaking down the proposed abortion rights measure into distinct issues.

“We don’t believe this court’s previous statements align with such a single-subject viewpoint,” Gacioch remarked. “Such a position would hinder the ability of voters to enact constitutional amendments.”

The Nebraska Supreme Court has displayed inconsistent rulings on single-subject law challenges. For example, in 2020, it blocked a medical marijuana legalization initiative citing multiple subjects, while in July, it upheld a bill that combined the 12-week abortion ban with a measure targeting gender-affirming healthcare for minors, which drew criticism from dissenting Justice Lindsey Miller-Lerman.

A hearing was expedited on Monday, as Nebraska law mandates certification of the November ballot by Friday.

In Missouri, arguments regarding the abortion rights initiative are scheduled for Tuesday. This proposal was initially set for the November ballot, but a state judge ruled that the campaign did not adequately inform voters of the possible implications during the signature-gathering phase.

Tuesday marks the deadline for adjustments to Missouri’s November ballot, leaving judges only a few hours to decide whether abortion will appear before voters this year.

Currently, abortion-related measures are set to appear on ballots in nine states. Additionally, a proposed measure in New York would prohibit discrimination based on pregnancy outcomes without explicitly mentioning abortion.

In general, abortion rights advocates have found success in past voter measures, securing victories in all seven initiatives since the U.S. Supreme Court overturned Roe v. Wade in 2022. In the wake of that decision, many Republican-led states have imposed various bans or limitations, with 14 states now outlawing abortion at all stages of pregnancy.

These high stakes have fueled numerous legal battles over most measures proposed. In Arizona, the Supreme Court allowed the term “unborn human being” to be used in pamphlets, while courts in Arkansas identified issues with initiative submissions, resulting in the proposals being barred from ballots. A South Dakota measure faces opposition from an anti-abortion group aiming to prevent the votes from being counted.

Source: Associated Press