Nebraska Supreme Court rejects two lawsuits challenging abortion-rights petition • Nebraska Examiner

Editor’s note: This story was updated at 4:15 p.m. to reflect the latest court action.

LINCOLN — The Nebraska Supreme Court on Thursday rejected fast-tracking a pair of lawsuits seeking to remove an abortion-rights constitutional amendment from the fall ballot.

Time is short for either effort, one from a Douglas County woman funded by the socially conservative Thomas More Society and one backed by local abortion opponents.

Nebraska Secretary of State Bob Evnen has until Sept. 13 to finalize the November general election ballot. He announced on Aug. 23 that the measure qualified for the ballot.

The second lawsuit was filed Wednesday, hours after the Nebraska Supreme Court declined to take up the first. Attorneys for the Douglas County woman, Carolyn LaGreca, tried to correct a mistake on the first lawsuit and refiled it. But the court again rejected the case Thursday.

In the second lawsuit, filed Wednesday, Dr. Catherine Brooks, a Lincoln neonatologist, asked the court to remove the Protect the Right to Abortion measure from the ballot.

Criticizes proposal’s language

The proposed abortion-rights amendment would codify a right to abortion in the Nebraska Constitution until “fetal viability,” as determined by a health care provider, with later exceptions for the mother’s health. 

Brooks was the public face of 30-plus medical providers who filed a complaint Monday with Evnen’s office, asking him to administratively reconsider his decision that the measure had legally qualified for the ballot.

In a statement Thursday from her attorney, Brenna Grasz, Brooks criticized the abortion amendment for redefining the viability standard by “extending the meaning into the late stages of pregnancy.” She called the proposal’s language “subjective, confusing and unworkable.” 

“It subjects women and medical professionals to vague, unscientific standards, and dangerously expands the scope of abortion practice,” Brooks said. 

She said the measure expands who decides viability to a person’s “health care practitioner” and called that “unsafe.” Non-physicians should not be making such determinations “outside the scope of their education, training, and experience,” she said.

Her lawsuit largely mirrored what the complaint letter argued, that the measure put forward by Protect Our Rights contains more than one subject, in violation of a state constitutional rule that ballot measures can cover only a single subject.

It argued that the petition seeks to create a new constitutional right to an abortion at the same time it seeks to define fetal viability and create an exception for a woman’s health.

The filing repeated anti-abortion criticism of the initiative that it also seeks to restrict the state’s ability to legislate and regulate abortion. It also redefines legal terms in ways the lawsuit describes as problematic.

“The Initiative violates this requirement by containing multiple proposals that are dissimilar, unrelated, and separate purposes,” the lawsuit said. “These separate purposes also lack a natural and necessary connection.”

No immediate comment from either side

Protect Our Rights had no immediate comment about the latest lawsuit or the Court’s action. 

Allie Berry, campaign manager for Protect Our Rights, has said abortion opponents were “doing everything in their power to undermine the process and lay the groundwork for their ultimate goal: a total abortion ban.”

The group has noted that Evnen certified the measure and said petition organizers had “followed the appropriate processes every step of the way.” Supporters said that the measure is legal and that voters deserve a say on reproductive health.

Brooks’ lawsuit asked the Supreme Court to let it skip the step of going through District Court because time is short, similar to the appeal made in a separate lawsuit from a Douglas County woman that the court rejected for technical reasons. 

That lawsuit was refiled Wednesday by the plaintiff’s attorney, who said he corrected a clerical error. The court reconsidered and still rejected it. Funded by the socially conservative Thomas More Society, this lawsuit argues similarly that the ballot measure seeking to cement abortion rights tries to do too much at once, in violation of the Nebraska Constitution. 

The court decided not to take either case as a so-called “original action.” Notes on the case files said the two applications were “not supported by affidavit or positively-verified petition.”

If the ballot measure goes forward, Nebraska would be the first state since the U.S. Supreme Court’s 2022 reversal of Roe v. Wade to have competing abortion-related constitutional amendments on the same ballot. 

Abortion opponents are supporting a measure that would constitutionally limit abortion to the first trimester of pregnancy and still let the Legislature pass stricter bans than contained in current law.

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