Abortion rights initiative should be taken off November’s ballot, lawyers tell Nebraska Supreme Court

The ballot initiative aiming to expand abortion rights until fetal viability shouldn’t be allowed to go before voters in November’s election, attorneys argued before the Nebraska Supreme Court Monday.

Justices likely have a tight deadline to make a decision – the Secretary of State must certify November’s ballot by Friday, Sept. 13.

Catherine Brooks, a Lincoln-based pediatrician specializing in care for newborn babies, sued Secretary of State Bob Evnen after he announced that the abortion rights petition had qualified for the November ballot.

The petition, backed by the Protect Our Rights campaign, proposes asking voters if they support amending the constitution to “provide all persons the fundamental right to abortion without interference from the state or its political subdivisions until fetal viability, which is the point in pregnancy when, in the professional judgment of the patient’s health care practitioner, there is a significant likelihood of the fetus’ sustained survival outside the uterus without the application of extraordinary medical measures; or when needed to protect the life or health of the pregnant patient.”

Arguments against abortion rights petition

Attorney Brenna Grasz, representing Brooks, argued that language unconstitutionally combines two subjects into one ballot initiative.

Grasz said the petition’s proposal to “provide all persons a fundamental right to abortion” creates multiple, competing rights.

“This language goes beyond merely the personal rights of a woman,” Grasz said. “The plain, most natural reading of the text is that it includes all persons, mothers, fathers, parents, personal rights and third-party rights.”

Grasz has also acted as the treasurer for the Protect Women & Children campaign, a rival abortion ballot initiative that aims to enshrine Nebrasaka’s current 12-week law through a constitutional amendment.

The abortion rights petition would additionally create new medical standards and practices regarding fetal viability and give too much power to unqualified medical practitioners, according to Grasz’s arguments.

“It not only transforms the right itself to an unidentifiable degree, but it also delegates for constitutional purposes the authority of a healthcare practitioner to be the determinator of when [abortion] rights end,” she said. “This is shifting the burden onto a healthcare practitioner to define when constitutional rights end.”

Attorney Matt Heffron followed Grasz with his own legal criticism of the abortion rights petition’s language. Heffron is representing Carolyn LaGreca, who filed a similar lawsuit against the Secretary of State.

“The ‘Protect the Right to Abortion’ initiative establishes late-term abortion for nearly any meaning, abortion without any limitations or restrictions and presided over by non-physicians,” Heffron told justices. “This is a sea change in the current Nebraska law, which was enacted by representatives, and each one of these should be voted on by the voters separately.”

Heffron told justices that the exceptions for health and life were too broad. He cited the U.S. Supreme Court Case Doe v. Bolton, which found that physical, emotional, psychological, familial factors and a patient’s age were all a part of a patient’s well being and can be used in a physician’s decision on abortion.

Voters may be confused by the language, Heffron argued.

“Many voters will vote for abortion up to viability, maybe a majority,” he said. “But those same voters will not necessarily vote for late-term abortion. And yet in this case, here in Nebraska, the voters will have the choice of abortion up to viability, but they’ll have to only pick it if they’re also willing to go with late-term abortion.”

Defense from abortion rights petition

Attorney Paul Rodney represented the sponsors behind the abortion rights petition. He said the ballot language is united by the single subject of limiting government interference on abortion.

“That is why the Secretary of State approved the initiative and certified it for the general election ballot,” Rodney said. “And that’s why this court should affirm that decision and let the voters decide.”

He called the concerns on competing rights to an abortion and unqualified medical practitioners “post-election” issues that could be addressed by the court and state government if voters approve the proposal in November.

“Their objections to the initiative’s substance should be communicated to voters,” he said. “And it will be likely this court's responsibility down the line… to determine if provisions of the initiative are incompatible with the rest of the constitution.”

In answering questions from the justices, Rodney said the initiative would allow the state government a role in regulating abortion.

“Under Roe, many states implemented regulations that pertain to abortion care,” Rodney said, citing laws around informed consent and record keeping. “If we look to history as a guide, the fact that a patient has a right to an abortion without interference from the government doesn’t mean there was zero role for the government.”

Rodney said that applies to the opposition’s concerns about non-qualified medical practitioners making decisions on abortion.

“That is another future repercussion that this court might have to grapple with,” he said. “It would be the expectation that it would be a healthcare provider who has the expertise to provide care to a pregnant patient. We don’t think a dentist, under current professional ethics and existing obligations, would seek to become the treating physician for a pregnant patient.”

In April, a similar abortion rights initiative in Florida passed a single-subject test, clearing it to appear on the ballot there. Rodney noted Nebraska’s abortion rights petition language “substantially overlaps” with the Florida proposal.

Doctors file countersuit in support of abortion rights petition

In response to the two lawsuits challenging the abortion rights petition, a group of Nebraska-based doctors sued Evnen to oppose the ballot initiative aiming to keep Nebraska’s 12-week law in place.

The rival measure proposes asking voters if they would support a constitutional amendment stating that “except when a woman seeks an abortion necessitated by a medical emergency or when the pregnancy results from sexual assault or incest, unborn children shall be protected from abortion in the second and third trimesters.”

The proposal would allow further restrictions on abortion.

Josh Livingston, a lawyer representing the doctors, said the group wanted the chance to ask the court to apply the same constitutional tests to both ballot initiatives.

“Our argument is really about ensuring equal access to the ballot,” he said. “Our 29 physicians have stepped up to defend Nebraskan’s opportunity in November to make a choice on both initiatives.”

Attorney James Campbell defended the 12-week petition. He said the case had no merit because in the doctor’s petition, they “concede that the initiative meets the constitutional requirements for inclusion on the ballot and that Nebraska voters are entitled to consider it in November.”

‘Undesirably quick process’

The Supreme Court justices may have a tight turnaround to make their decision on if the abortion ballot measures pass the legal requirements to go before voters during November’s election.

Friday, Sept. 13 is the deadline for the Secretary of State to certify the candidates, offices and issues that appear on the ballot. Nebraska law requires the office to release the official ballot to election workers at least 50 days before the statewide election.

“This was perhaps an undesirably quick process,” Rodney said. “We’re under an accelerated timeline to deal with weighty issues.”

Chief Justice Michael Heavican agreed.

“It would seem that the box we’re all in now, is not a very good box,” he said. “And most of the things that we’ve talked about today – on both sides of the fence, in regard to what is the definition of health providers and so forth – put the legal system in an even worse box.”