OMAHA, Nebraska (AP) — With voting deadlines looming, courts in Nebraska and Missouri are weighing legal arguments that could strip voters of measures expanding abortion rights.
One day before the Missouri Supreme Court is set to hear arguments on whether to put a proposed abortion amendment before voters, Republican Secretary of State Jay Ashcroft removed the bill himself from the ballot, effectively killing it.
Monday’s move by Ashcroft, an anti-abortion activist, is largely symbolic. The Supreme Court is expected to have the final say on whether the bill, which would overturn Missouri’s near-total ban on abortion, should go to voters.
Tuesday’s hearing before the Missouri Supreme Court comes just hours before the state’s deadline to make changes to this year’s ballot.
In Nebraska, the Supreme Court heard arguments Monday in three lawsuits seeking to keep one or both of the state’s competing abortion initiatives off the ballot.
One initiative would enshrine in the Nebraska Constitution the right to abortion up to viability or later to protect the health of the pregnant woman. The other would add to the constitution Nebraska’s current 12-week abortion ban, passed by the legislature in 2023, which includes exceptions for rape, incest and the life of the pregnant woman.
Two lawsuits – one filed by an Omaha resident and the other by a Nebraska neonatologist, both of whom oppose abortion – argue that the measure to expand abortion rights violates the state’s ban on addressing more than one issue in a bill or ballot proposal. They say the ballot measure addresses abortion rights up to viability, abortion rights after viability to protect women’s health and whether the state should be allowed to regulate abortion, which are three different issues.
But lawyers opposing the abortion rights measure spent a lot of time challenging the wording of the proposal. Attorney Brenna Grasz insisted that the language that says “all people” should have a fundamental right to abortion would extend abortion rights to third parties, such as parents who want to force their minor child to have an abortion.
“Is this a single issue argument?” asked Chief Judge Mike Heavican.
Attorney Matt Heffron of the conservative Chicago-based nonprofit Thomas More Society, which has filed lawsuits against abortion rights across the country, argues that the Protect Our Rights initiative lumps conflicting issues into one measure. It would force voters who support abortions up until the fetus is viable to support abortions afterward to protect the mother’s health, which they may not want to do, he said.
“This is a fundamental change in current Nebraska law, which was passed by lawmakers in the presence of voters, and each item should be voted on separately by voters,” Heffron said.
Heavican countered that “virtually every bill that has passed through the legislature” dealing with abortion has also included the issues of exemptions and government regulation.
Heffron responded that lawmakers had plenty of time and expertise to craft the terms of those bills and that voters would go into the voting booth much less informed. But the justices pointed out that a nearly identical argument on a single issue failed in a vote on abortion rights before Florida’s conservative Supreme Court earlier this year.
A lawyer for the lawsuit against the 12-week ban initiative argued that if the Supreme Court finds that the abortion rights measure fails the single-subject test, it must also find that the 12-week ban initiative fails that test as well.
Boston attorney David Gacioch said the opposing lawyers’ theory is that the 12-week ban would cover at least six different issues, including regulating abortion in the first, second and third trimesters, and separate exceptions for rape, incest and the life of the mother.
Gacioch acknowledged that insisting on separate ballot proposals for each of these issues would be as specious as trying to break down the abortion rights bill into separate issues.
“We do not believe the court framed this under a single issue test,” Gacioch said. “We believe it would impinge on the right of voters to pass constitutional amendments as provided for in the Constitution.”
The state’s highest court has issued a mixed ruling on challenges to the single-subject law. In 2020, the Nebraska Supreme Court blocked a ballot initiative to legalize medical marijuana after finding that the provisions allowing people to exploit and produce marijuana are separate subjects that violate the state’s single-subject rule.
But in July, the Supreme Court ruled that a hybrid bill passed by the House in 2023 that combines the 12-week abortion ban with another measure restricting gender-affirming health care for minors does not violate the single-subject rule. That prompted a scathing dissent from Justice Lindsey Miller-Lerman, who accused the majority of applying different standards to bills passed by the House and those introduced by referendum.
The court agreed to speed up Monday’s hearing because state law requires November ballots to be certified by Friday.
Abortion is currently on the ballot in nine states in November. In addition, New York has a bill that would prohibit discrimination based on the course of pregnancy, but does not specifically mention abortion.
Abortion rights advocates have historically prevailed in most cases where they have come to the ballot, including all seven ballot proposals since the U.S. Supreme Court overturned Roe v. Wade in 2022, ending federal abortion rights. Since the ruling, most Republican-controlled states have enacted bans or restrictions, including 14 that ban abortion at all stages of pregnancy.
With so much at stake, most of these measures have been litigated. An Arizona Supreme Court ruling allows the state to refer to an embryo or fetus as an “unborn human being” in a pamphlet; courts in Arkansas found paperwork problems in submitted initiatives and prevented the measure from reaching a ballot. In South Dakota, a measure is on the ballot, but an anti-abortion group is trying to keep the votes from being counted.
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Associated Press writer Summer Ballentine contributed to this report from Columbia, Missouri.
