The Nebraska Supreme Court ruled Friday that competing bills that would expand or restrict abortion rights can be on the November ballot.
The Supreme Court’s ruling came days after it heard arguments in three lawsuits seeking to keep one or both competing abortion initiatives off the November ballot.
Organizers of each measure submitted more than 200,000 signatures, well over the 123,000 valid signatures needed to put the measure on the ballot.
An organizer of the abortion expansion effort called the decision a “victory for all Nebraskans.”
“Pro-life activists forced an abortion ban into law and then joined with activists in filing desperate lawsuits to silence over 200,000 Nebrasans by denying them the right to vote on what happens to their bodies,” said Allie Berry, campaign manager for Protect Our Rights. “They know Nebrasians want to end the harmful abortion ban and stop government intrusion into their personal and private health care decisions. Today, their plans failed.”
Matt Heffron, an attorney for the conservative Thomas More Society, which has challenged the abortion-expanding measure, called the court’s decision “deeply troubling” and said the group fears that if the measure passes, it will lead to unnecessary late-term abortions.
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 enshrine in 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 said the ballot measure is about abortion rights up to viability, abortion rights after viability to protect a woman’s health and whether the state should be allowed to regulate abortion, which are three different issues.
“The fact that the authors of the initiative made certain choices regarding the specific limits, parameters, and definitions does not mean that each of those provisions is a separate issue,” Justice Lindsey Miller-Lerman wrote for the court in his unanimous decision.
A similar single-issue dispute in a vote on abortion rights failed before Florida’s conservative Supreme Court earlier this year – a development cited in the Nebraska decision.
“We note that our decision in this case is consistent with a decision of the Florida Supreme Court issued earlier this year,” the statement said Friday.
A third lawsuit challenged the 12-week ban ballot bill, arguing that if the Supreme Court finds that the abortion rights bill fails the single-issue test, it must also find that the 12-week ban initiative fails. The abortion restriction bill would cover at least six different issues — from regulating abortion to listing exceptions for rape, incest and the life of the mother, a lawyer argued in that third lawsuit.
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 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 has agreed to expedite its hearings and rulings on the lawsuits to avoid the need for lower court proceedings and to decide the matter before ballots are printed across the state. The deadline to certify November ballots in Nebraska is Friday.
Nebraska will be the first state to put competing abortion amendments to the vote on the same ballot since the U.S. Supreme Court overturned Roe v. Wade in 2022, effectively ending 50 years of national abortion rights and making abortion a state-by-state issue. But the issue of abortion in general will be on the ballot in nine states across the country this year. Measures to protect access have also been put to the ballot in Arizona, Colorado, Florida, Maryland, Missouri, Montana, Nevada and South Dakota.
New York also has a bill that supporters say would protect abortion rights, but its implications are controversial. In Arkansas, such a bill is not on the ballot, but attempts are being made to add it through a court case.
In Nebraska, voters could end up approving both competing abortion laws. But because they compete and therefore cannot both be enshrined in the Constitution, the bill with the most votes would pass, the Secretary of State’s office said. Voters have supported abortion rights in all seven states that have passed abortion laws since Roe v. Wade was overturned.
Most Republican-dominated states have enacted some form of abortion ban since the Roe ruling was overturned.
Opinion polls also show that support for abortion rights is growing. For example, a recent poll by the Associated Press and NORC found that six in 10 Americans believe their state should allow women to have a legal abortion if they do not want to become pregnant for any reason.
Fourteen states currently ban abortion at all stages of pregnancy, with some exceptions. Four states ban it after about six weeks, before many women know they are pregnant. Nebraska and North Carolina are the only states that have opted for a ban that takes effect after 12 weeks of pregnancy.
