Nebraska Supreme Court agrees to hear challenge to abortion ballot initiative

(OSV News) -- A last-minute challenge to a proposed Nebraska initiative to enshrine abortion in the state constitution as a "fundamental right" is being heard Sept. 9.

Lawyers for the Thomas More Society, a Chicago-based religious-liberty law firm, filed the brief Sept. 5 with the Nebraska Supreme Court, after the high court allowed the challenge to move forward Aug. 30.

The court will hear the challenge to the "Protect the Right to Abortion" initiative through a proceeding called an "original action," which the Thomas More Society noted in a news release is considered rare.

Nebraska is one of 10 states with abortion-related initiatives before voters on Nov. 5. But it is currently the only state where voters can choose between two competing initiatives.

The other one -- the "Protect Women and Children" initiative -- would codify a ban on abortion in the second and third trimester, leaving intact the state's current 12-week abortion ban in the Nebraska constitution, with exceptions for rape, incest and to save the life of the pregnant woman.

That law went into effect in May 2023, but leaves the vast majority of abortion legal in Nebraska. According to state health statistics from 2021, the year prior to the Dobbs decision, 87.8% of abortions took place up to the 12th week. Statistics from 2022, showed 92.1% of abortions took place up to that point.

The Thomas More Society brief accuses the "Protect the Right to Abortion" initiative of containing "remarkably misleading terms" and is "unconstitutionally riddled with separate subjects" in violation of the state constitution's single subject rule.

As an example, the lawyers argue in the brief, in addition to proposing a fundamental right to abortion before viability, the initiative would also establish a right to abortion after viability for undefined "health" reasons.

The brief points out that Nebraska's statute defines viability as when an unborn child is "potentially able to live more than merely momentarily outside the womb ... by natural or artificial means." (The medical consensus generally identifies that point as around 24-weeks of pregnancy, given current neonatal technology available for the care of premature babies.) But the ballot initiative redefines viability as being able to live outside the womb "without the application of extraordinary medical measures."

The brief also contends the initiative's language on a "fundamental right to abortion," combined with the description "without interference from the state or its political subdivisions," means virtually unregulated abortions. The brief claimed this would effectively "abolish popularly enacted Nebraska statutes limiting abortion and probably common medical regulation of abortion clinics."

The brief said the initiative's "without interference" clause also "would effectively repeal a tremendous number of popularly enacted Nebraska statutes."

The Thomas More Society argued the following laws would likely no longer be enforceable: "partial-birth abortion ban; dismemberment abortion ban; parental notification for minor abortions; requiring physician involvement; requiring physician availability for postoperative care; requiring care of born-alive aborted infants; care of post-viability aborted fetuses; detailed informed consent requirements."

The Thomas More Society is seeking the high court to order Nebraska Secretary of State Robert Evnen to deny certification of the ballot initiative and withhold it from the November ballot, or to declare the measure invalid.

The Nebraska Catholic Conference is vigorously opposing the abortion measure, stating on its website that the initiative "cannot be supported under any circumstance and must be rejected."

"Nebraskans need to know how this proposal is dangerous, deceptive, and demeaning, why it must be opposed, and how we can defeat it," the conference stated.

The conference makes clear that Catholics can morally support the alternative "Protect Women and Children" ballot initiative, because it bans late-term abortion under the state constitution, leaves existing abortion restrictions intact, and allows the Legislature to have the freedom to pursue a first trimester abortion ban in the future.

Since the U.S. Supreme Court's 2022 decision in Dobbs v. Jackson Women's Health Organization returned decisions on legalized abortion to the states, Vermont, California, Michigan and Ohio had successful initiatives to enshrine abortion in their state constitutions.

Arizona, Colorado, Florida, Maryland, Missouri, Montana, New York, Nevada and South Dakota also have abortion-related initiatives on their ballots Nov. 5.