Ban on abortion, gender-care for minors is unconstitutional, Planned Parenthood tells Supreme Court

Last year, Nebraska outlawed most abortions after 12 weeks and restricted gender-affirming care for minors in one fell swoop through LB574. Lawyers representing Planned Parenthood argue the bill violated the state’s constitution by combining two subjects into one bill.

Those arguments reached the state’s supreme court on Tuesday. Planned Parenthood is appealing a decision from the Lancaster County District Court, which allowed the law to be put on the books.

‘Strangers to each other’

Matthew Segal, an attorney for the ACLU representing Planned Parenthood, told justices LB574 has different names, effective dates, enforcement mechanisms and procedures for its restrictions on abortion access and gender-affirming care for minors.

“The two halves of LB574 do not implement or work with each other,” he said. “In fact, aside from their inclusion in the same bill, they are strangers to each other.”

One justice asked Segal why abortion and gender care couldn’t fall under the single subject of regulating healthcare professionals or physicians.

“The court has said it doesn’t start from the narrowest possible category that could arguably contain a bill, it looks to what the bills do,” Segal replied.

In response to a question from one justice, Segal said the way LB574 worked its way through the legislature risks log rolling, where legislators trade votes to pass bills.

“The legislature itself treated these two halves of LB574 as separate bills until an abortion ban failed as a standalone measure,” he said. "And it was only then that again, one log was tacked on to the other law.”

Justice William Cassel told Segal it seemed he was placing “tremendous weight” on how the legislature handled LB574, instead of its content and title.

“Is that a fair characterization?” Cassel asked the attorney. Segal said in his view, the court’s past cases place weight on a bill’s process.

Defending LB574

Eric Hamilton, Nebraska’s solicitor general, asked the court to affirm the district court’s decision and find LB574 constitutional.

Hamilton argued the bill passes a legal test the court has used in past cases. That test asks justices to examine the subject in a bill’s title and consider whether every element of a bill is related to the title’s subject, which is public health and welfare.

“LB574 meets that standard,” Hamilton said. “There are two policies in LB574: an abortion policy and a gender altering procedures policy and both relate to that standard.”

Justice Lindsey Miller-Lerman pointed out that LB574 uses the term “unborn child” and asked Hamilton if the state has a position on whether an unborn child is a “person” as used elsewhere in the state’s constitution.

Hamilton said the state has not taken a position.

“And we don’t think the court needs to reach that decision to apply the single subject rule,” he said. “This is simply focused on whether individual portions of the bill are germane to the subject.”

While the court could issue its decision at any time, the ruling will likely be released in the coming weeks or even months.