Nebraska Supreme Court keeps two abortion questions, scholarship repeal on ballot (copy)
LINCOLN — A slate of decisions from the Nebraska Supreme Court Friday kept two abortion questions and an initiative to repeal a private school scholarship measure on the 2024 ballot.
The high court ruled on four lawsuits challenging the two ballot measures to alter Nebraska abortion policy and repeal a new law allocating funds for private school scholarships. The rulings kept all three measures on the ballot, for now.
Two of the lawsuits were essentially identical, and asked the court to remove a ballot measure that would amend the state’s constitution to establish the right to an abortion up until “fetal viability,” which is generally considered to be 23 to 24 weeks of pregnancy. They alleged the initiative violates a provision in the Nebraska Constitution that limits ballot measures to a single subject.
A third lawsuit asked the court to treat the abortion rights initiative the same as a second initiative that would restrict most abortions beyond the first trimester.
The fourth lawsuit related to a separate initiative seeking to partially repeal Legislative Bill 1402, removing the program and funding mechanism that allocates $10 million per year to fund private and parochial school scholarships. Arguments on all four cases were first made before the court earlier this week.
Abortion rights petition
The court ruled that the ballot measure seeking to protect the right to abortion did not violate the state constitution’s single-subject rule.
The justices ruled that seeking to create a constitutional right to abortion “has a singleness of subject.” The use of additional words the two lawsuits relied on are not separate subjects but “facets of the singular subject,” the justices determined.
Multiple ballot initiatives in previous years, including a 2020 attempt to put medical marijuana legalization in front of voters, have been struck down by the Nebraska Supreme Court on single subject grounds.
Those who brought the lawsuits, known as relators, said the abortion initiative had at least four separate goals or subjects.
In a unanimous decision, the Nebraska Supreme Court disagreed.
“Having reviewed the text of the proposed constitutional amendment, we determine that the parts of the Initiative all relate to the same general subject of creating a constitutional right to abortion,” the opinion reads. “The parts of the Initiative define the limits and set parameters for that right and define terms for purposes of the proposed constitutional provision.”
The text of the Protect Our Rights ballot initiative, now expected to be on November’s ballot after the ruling, reads:
“All persons shall have a fundamental right to abortion until fetal viability, or when needed to protect the life or health of the pregnant patient, without interference from the state or its political subdivisions. Fetal viability means the point in pregnancy when, in the professional judgment of the patient’s treating health care practitioner, there is a significant likelihood of the fetus’ sustained survival outside the uterus without the application of extraordinary medical measures.”
All-or-nothing case rejected
The Nebraska Supreme Court rejected a lawsuit that asked justices to treat two abortion-related initiatives evenly, either removing both from the ballot or keeping both. The lawsuit was filed in response to two other lawsuits that challenged one ballot measure seeking to protect the right to abortion until “fetal viability.”
The high court ruled that the other abortion initiative, which seeks to ban most abortions after the first trimester, does not violate the single-subject rule.
‘School choice’ challenge denied
The Nebraska Supreme Court rejected a lawsuit requesting the removal of a ballot measure that seeks to partially repeal LB 1402. The lawsuit alleged that the measure violated a provision of the state constitution that prohibits voter referendums from impacting direct appropriations.
The high court ruled that since the ballot initiative only seeks to repeal the first section of LB 1402, which “makes no appropriation at all,” Secretary of State Bob Evnen is not required to remove it from the ballot.
Evnen could remove the measure anyway. In a document filed in the case, Evnen said although he certified the initiative, afterward he became convinced the measure was ineligible for the ballot. However, Evnen said he would defer to the court’s judgment.
In a concurring opinion by Chief Justice Michael Heavican, he addressed Evnen’s change in position, noting that Evnen determined the initiative met legal requirements when he certified it for the ballot. Heavican said he is not aware of any processes that allow the secretary of state to change his mind and take a certified initiative off the ballot.
State Sen. Lou Ann Linehan, who introduced LB 1402, said the court’s ruling was a “dangerous” and “very bad decision,” that could threaten other legislation that allocates funds but don’t directly change the state budget. She said it could jeopardize other increases to education funding the Legislature has passed in recent sessions.
Support Our Schools Nebraska, which led the initiative’s campaign, praised the high court for ordering Evnen to “end his shenanigans” and protecting the petition process. Campaign officials have alleged that the lawsuit, as well as LB 1402, were attempts to suppress the will of voters.
“We join Nebraska’s public school educators in celebrating the Supreme Court’s decision to preserve the right of Nebraskans to vote on whether to direct their taxpayer dollars to private institutions. We applaud their decision to maintain the long-held, intentional and careful process of appropriating funds by the Legislature, an important tenet of effective fiscal management by the state of Nebraska,” Rebecca Firestone, executive director of the OpenSky Policy Institute, said in a press release.
Suit seeks to keep marijuana initiatives off ballot
A new lawsuit, filed Thursday in Lancaster County District Court, seeks to keep two petition measures that would legalize medical marijuana off the November ballot. The suit was filed by John Kuehn, a former state senator and longtime opponent of medical marijuana.
Kuehn claims, among other things, that the petitions did not have enough valid signatures, that a petition sponsor had not listed her city, state or zip code on the sponsor statement and that the measures violated the constitutional requirement to have only a single subject. He also claims that Evnen violated Kuehn’s right to challenge the measures by not completing the validation of signatures until the deadline to certify the ballot.
Evnen announced last week that the medical marijuana petitions had collected enough valid signatures to make the ballot but had not completed the petition certification process as of Friday morning. His office set Friday as the deadline to certify the ballot.
ebamer@owh.com Twitter @ErinBamer
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