Kenneth Ferriera/Lincoln Journal Star via AP
Protesters line the street around the front of the Nebraska Capitol during an abortion rights rally, July 4, 2022, in Lincoln, Nebraska.
There are several historic firsts at work this election season in Cornhusker country. Of the ten states featuring abortion ballot questions, Nebraska is the only one featuring two distinct constitutional amendments. In fact, no state in the country has ever presented voters with two abortion measures in the same election cycle.
The Nebraska Right to Abortion Initiative is a pro-choice question that asks voters to weigh in on providing abortion access until fetal viability and to protect the health or life of the pregnant person. The Nebraska Prohibit Abortions After the First Trimester Amendment, if approved, would let stand a 12-week ban on the procedure, with exceptions for rape, incest, and the life of the mother. According to the secretary of state’s office, if both measures earn a majority, “the ballot measure that receives the highest number of ‘For’ votes will prevail.”
Not surprisingly, these historic firsts have created controversy, mainly from state elected officials and top Republicans who assume that voters cannot be trusted or are not savvy enough to understand difficult matters, or worse, will vote in a way that is out of step with Nebraska’s government and outside partisan actors.
But before we get to the voters, the next stop is the Nebraska Supreme Court, where justices will hear three challenges to the proposed measures. Of the seven justices, six are chosen by a judicial nominating commission, while Gov. Jim Pillen selects the chief justice from a commission list. The current chief justice, Mike Heavican, retires at the end of October.
Two of the challenges argue that the pro-choice initiative, sponsored by Protect Our Rights, a coalition of seven Nebraska reproductive rights and civil rights groups, violates the “single-subject” provision of the state constitution and should not appear on the ballot. One woman, a neonatologist, contends that the amendment introduces not one but five subjects, including a new medical standard for determining “fetal viability.”
A second woman who established a center that provides housing and services for pregnant women “in crisis” also argues that the abortion amendment fails to adhere to the single-subject standard. This challenge also lists five concerns about the pro-choice measure, such as allowing health care practitioners, such as midwives, to determine viability.
But the most provocative development involves a third challenge brought by a group of doctors. They want Nebraskans to be able to vote on abortion and assert in their brief that first-trimester restrictions pose serious complications for women. However, they want the state high court to be consistent: If the pro-choice measure is pulled, they also want the anti-abortion one struck off—or both questions left on—since they are “similarly structured,” offering what’s been called an “either both or neither” option.
The abortion measures could impact an obscure but important element of the presidential election.
The single-subject imperative may seem convoluted, especially since the state high court seems to be idiosyncratic in their rulings, depending on the issue. But the purveyors of initiatives and constitutional amendments have learned to expect these kinds of challenges as the election season goes down to the wire.
Nebraska has been here before. After a 2020 challenge, the state supreme court invalidated a medical marijuana amendment destined for the ballot, ruling that the measure contained eight separate subjects. Having learned the lesson—to simplify and simplify again when it comes to policy reforms in initiatives and constitutional questions—this year medical marijuana advocates circulated two separate, citizen-initiated petitions: one for use and possession and a second to determine who can grow and sell cannabis to patients.
The Nebraska Constitution puts legislation to a similar constitutional test: “No bill shall contain more than one subject, and the subject shall be clearly expressed in the title.” The intent is to stop lawmakers from adding perks for their districts onto must-pass bills, for example.
But in June, the state supreme court turned around and ruled that a law which combined restrictions on abortion and gender-affirming care for minors did not violate the single-subject rule, since both areas pertain to “permissible medical care.” The decision left brows furrowing in some corners of the state.
This time around, supporters of the abortion rights ballot initiative fear that the state supreme court may disallow their amendment and allow the anti-abortion amendment to appear on the ballot, splitting hairs to reach an ideologically convenient outcome.
The amendment process has been further shaken up by complaints during the signature-gathering phase, with finger-pointing on both sides. Some petition signers have charged that signature gatherers have offered misleading explanations for their petitions and duped people into signing a petition that did not mesh with their views. One woman who objected was told “just vote no later.” The vast majority of the complaints, the most in state history, pertained to the anti-abortion signature gathering.
State lawmakers have been on the defensive since the Dobbs decision. The most extreme abortion bans, both a total abortion ban and a six-week ban, have failed in Nebraska. Though conservative with strong evangelical influences, state voters are a shade more libertarian in their sociopolitical leanings, in that they would prefer that government stay out of the reproductive rights regulation business altogether.
The abortion measures could impact an obscure but important element of the presidential election as well. Nebraska apportions its electoral votes by congressional district, and in 2020 Joe Biden beat Donald Trump in the Second Congressional District, which is mostly the city of Omaha. The electoral map outlook makes that single electoral vote very important to Kamala Harris and native Nebraskan Tim Walz, and an abortion rights measure could bring out more Democratic-leaning voters in Omaha to the polls.
The state supreme court will hear arguments on the single-subject questions next Monday, September 9. The secretary of state must finalize general-election ballots by September 13. If the justices decide that both measures violate the single-subject rule before that date, they won’t appear on the ballot; if they rule after that date, any votes would be voided. They could also rule that one amendment is fine and the other is in violation, setting the stage for a very close contest.
