Challenge to abortion, transgender health law gets hearing

July 19, 2023, midnight ·

Lancaster District Judge Lori Maret, lower right, presides over Zoom hearing Wednesday (Zoom screenshot)Screenshot 2023-07-19 10.13.38.png
Lancaster District Judge Lori Maret, lower right, presides over Zoom hearing Wednesday (Zoom screenshot)

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There was a court hearing Wednesday on the constitutionality of Nebraska’s restrictions on abortion and health care for transgender youth. But the hearing raised larger questions about public policy and the way the Legislature conducts its business.

A key issue in Wednesday’s hearing was whether a law passed by the Legislature this year conforms to the requirements of Nebraska’s Constitution.

Article III, Section 14 of that constitution says, quote “No bill shall contain more than one subject, and the subject shall be clearly expressed in the title.”

LB574 started out as a bill to restrict health care for transgender youth. A separate bill, LB626, proposed to ban most abortions after about six weeks of pregnancy.

But after LB626 was blocked, supporters loosened the proposed ban to 12 weeks, and amended it into LB574, the transgender health bill.

In Wednesday’s hearing, Assistant Attorney General Erik Fern defended the resulting law.

“Regulating abortion and transgender care are two matters within one subject. And they’re plainly within public health and welfare,” Fern said.

“Public health and welfare” are mentioned in the title of LB574, but it goes on to mention both the “Preborn Child Protection Act” – the abortion restrictions – and the “Let Them Grow Act” – the transgender healthcare restrictions.

Lawyer Matthew Segal, opposing the law for Planned Parenthood, described Wednesday’s hearing as concerning two different subjects.

“You have to say that it's about an abortion ban. And you have to say that it's about a restriction on gender-affirming care. And it is particularly problematic for the defendants to say that it's a public health and welfare bill, because that category is enormously broad -- so broad that if that can salvage a bill like this, then there's really nothing left of the command that every bill shall contain only one subject,” Segal said.

Assistant Attorney General Fern replied that the courts have historically taken a liberal view of the constitution’s single subject requirement, upholding legislation that combined many provisions so long as they fell under the same broad topic. And he suggested opposition to the law is motivated by what it does, rather than how it was put together.

“Abortion and transgender care involves deeply held convictions on both sides. But plaintiffs’ lawsuit is the product of those convictions. It's an ideological challenge to what LB574 legislates, and ultimately plaintiffs are inviting this court, supported by non-binding precedent, to establish a standard greater than what appears in recent Supreme Court case(s) to examine how the legislation was passed,” he said.

But Segal argued that if the court allows the law to stand despite the single-subject rule, it would undermine legislators’ accountability to the public.

“Going forward, members of the public would not be able to know what their senators truly felt about a bill because when subjects are combined in this fashion, it becomes impossible for people to know whether their senator voted for or against the bill just because they liked or disliked part of it, or all of it.

In addition to asking for the law to be declared unconstitutional, Planned Parenthood is also seeking a temporary injunction. That would allow the organization immediately to return to operating under the previous law, which allowed abortions up to 20 weeks after fertilization. Lawyer Jane Seu, also appearing for Planned Parenthood, said the new law is hurting both that organization and the people it serves.

“Because of the abortion ban provisions that went effect immediately, they're not able to serve their patients to the best standard of medical care, and patients are then forced to either seek care out of state or forced to carry pregnancies against their will,” Seu said.

In court filings, Planned Parenthood has said about one-third of people getting abortions in Nebraska during the last three years were twelve weeks or more into their pregnancies.

Fern responded that in passing the law, the Legislature was operating within its power.

“The Nebraska Legislature, in its discretion and within its authority, has identified individuals that they intend to protect… All of the individuals -- those preborn children between the weeks of 12 and 20 weeks of gestation -- are entitled to protection. Their interest in comparison to the economic harm to Planned Parenthood clearly outweigh Planned Parenthood,” he said.

Lancaster District Judge Lori Maret said she would take the arguments and evidence into consideration and issue a written decision. She did not say when that would happen. I’m Fred Knapp, Nebraska Public Media News.