Nebraska's ballot may incorporate contrasting proposals aiming to broaden or restrict abortion access, according to the state's high court decision.
The court's verdict came shortly after it listened to debates in three lawsuits aimed at keeping one or both of Nebraska's conflicting abortion proposals off the November vote.
Advocates for both proposals submitted more than the required 123,000 valid signatures needed to feature them on the ballot.
One initiative proposes to incorporate the right to have an abortion until viability, or beyond to safeguard the woman's health, into the Nebraska constitution. Another initiative aims to embed Nebraska's existing 12-week abortion prohibition, enacted by the legislature in 2023, into the constitution, with exemptions for rape, incest, and the woman's life.
Two lawsuits - one filed by an Omaha resident and another by a Nebraska neonatologist, both anti-abortion - argue that the proposal broadening abortion rights violates Nebraska's ban on addressing multiple subjects in a bill or ballot proposal. They contend that the ballot measure covers abortion rights up to viability, abortion rights beyond viability to protect the woman's health, and the state's ability to regulate abortion, equating to three distinct issues.
A single-subject challenge to an abortion rights ballot proposal before the conservative Florida Supreme Court failed earlier this year.
A third lawsuit targeted the 12-week ban proposal. The filing asserted that, if the court found the abortion rights proposal failed the single-subject test, it should also rule that the 12-week ban proposal fell short as well.
The 12-week ban ballot proposal would address at least six different subjects, including regulating abortion in the first, second, and third trimesters and separate exemptions for rape, incest, and the woman's life, argued an attorney for that third lawsuit.
The Nebraska high court has been inconsistent in its handling of single-subject law challenges. In 2020, the court halted a ballot initiative seeking to legalize medical marijuana due to its separate provisions for marijuana use and production, which violated the state's single-subject rule.
However, in July, the court ruled that a hybrid bill combining the 12-week abortion ban with another measure restricting gender-affirming health care for minors did not breach the single-subject rule. This decision sparked a scathing dissent from Justice Lindsey Miller-Lerman, who accused the majority of applying different standards to legislature-passed bills and voter-initiated referendums.
The court decided to accelerate its hearings and rulings on the lawsuits to avoid lower court proceedings and resolve the issue before state ballots are printed. The Nebraska November ballot certification deadline is Friday.
Nebraska will be the first state to include competing abortion amendments on the same ballot since the US Supreme Court overturned Roe v. Wade in 2022, ending 50 years of national abortion rights and making abortion a state-by-state matter. The topic of abortion will appear on ballots in nine states this year. Measures to protect access have also qualified for voter consideration in Arizona, Colorado, Florida, Maryland, Missouri, Montana, Nevada, and South Dakota.
New York also has a ballot measure intended to shield abortion rights, though its impact is disputed. An attempt to add an abortion-related measure to the Arkansas ballot is being pursued through litigation. All seven states with an abortion-related ballot measure since Roe's reversal have favored abortion rights.
Most Republican-controlled states have imposed some form of abortion ban since Roe was overturned.
Public opinion polls suggest growing support for abortion rights, including a recent AP-NORC survey finding that 6 in 10 Americans believe their state should allow someone to get a legal abortion if they don't want to be pregnant for any reason.
Fourteen states currently have bans on abortion at all stages of pregnancy, with some exceptions; four states prohibit it after about six weeks, before many women realize they are pregnant. Nebraska and North Carolina are the only states with bans activating after 12 weeks of pregnancy.
In the midst of these legal battles, politics surrounding abortion rights in Nebraska have become increasingly divisive. The court's decision on the validity of the conflicting proposals could significantly shape the state's constitutional stance on abortion.
