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A Nebraska law that combined abortion restrictions with another measure to limit gender-affirming health care for minors does not violate a state constitutional amendment requiring bills to stick to a single subject, a majority of the Nebraska Supreme Court ruled Friday.
The state’s high court acknowledged in its ruling that abortion and gender-affirming care “are distinct types of medical care,” but found the law does not violate Nebraska’s single-subject rule because both abortion and transgender health fall under the subject of medical care.
The majority relied, in part, on a passage from an 1895 ruling to find the state constitution offers wide latitude on what composes a single subject.
“Ultimately, ‘if a bill has but one general object, no matter how broad that object may be, and contains no matter not germane thereto, and the title fairly expresses the subject of the bill, it does not violate’” the state constitution's single-subject rule, Chief Justice Mike Heavican wrote for the court.
The ruling came in a lawsuit brought by the American Civil Liberties Union representing Planned Parenthood of the Heartland. The high court rejected arguments by ACLU attorneys which argued the hybrid law passed last year violates Nebraska’s single subject rule.
Republican lawmakers in the officially nonpartisan Nebraska Legislature had originally proposed separate bills: An abortion ban at about six weeks of pregnancy and a bill restricting gender-affirming treatment for minors. The GOP-dominated Legislature added a 12-week abortion ban to the existing gender-affirming care bill only after the six-week ban failed to defeat a filibuster.
The combination law was the Nebraska Legislature’s most controversial in the 2023 session, and its gender-affirming care restrictions triggered an epic filibuster in which a handful of lawmakers sought to block every bill for the duration of that session — even ones they supported — in an effort to stymie it.
A district judge dismissed the lawsuit last August, and the ACLU appealed.
In arguments before the high court in March, an attorney for the state insisted the combined abortion- and transgender-care measures did not violate the state’s single subject rule, because both fall under the subject of health care.
But an attorney for Planned Parenthood argued that the Legislature recognized abortion and transgender care as separate subjects by introducing them as separate bills at the beginning of last year’s session.
“It pushed them together only when it was constrained to do so,” ACLU attorney Matt Segal argued.
A scathing dissent by Justice Lindsey Miller-Lerman accused the majority of applying different standards to bills passed by the Legislature and those sought by voter referendum. She pointed to the high court's ruling in 2020 that blocked a ballot initiative seeking to legalize medical marijuana after finding that its provisions to allow people to use marijuana and to produce it were separate subjects that violated the state’s single-subject rule.
Miller-Herman chastised the majority for granting leeway and indulging the Legislature “at the expense of the Constitution.”
“It was the duty of the Legislature ... to compose legislation, including titling, which stated ‘one subject’; failure to so compose renders the bill unconstitutional,” Miller-Lerman wrote. “It is not the role of this court to rescue legislative bills.”
Most Republican-controlled states have implemented abortion bans of some sort since the U.S. Supreme Court overturned Roe v. Wade and ended the nationwide right to abortion in 2022.
Fourteen states currently have bans on abortion at all stages of pregnancy, with some exceptions; three ban it after about six weeks’ gestational age, before many women know they are pregnant, with a fourth such restriction, in Iowa, expected to take effect next week. Nebraska and North Carolina are the only states that have moved to bans that kick in after 12 weeks of pregnancy.
Most GOP-controlled states in the last few years have also moved to bar gender-affirming care for transgender minors. Twenty-two states are currently enforcing such restrictions.
Several Democratic-controlled states have adopted policies in the last two years to ensure access to both abortion and gender-affirming care, including by trying to block investigations of healthcare providers in their states from authorities in places with bans.
Voters could have the final say on abortion access in Nebraska. Two competing questions on the subject are likely to appear on the November ballot: One would add a right to abortion to the state constitution. The other would enshrine in the state constitution Nebraska’s current 12-week ban.
