A Nebraska law that combined abortion restrictions with another measure to limit gender-affirming healthcare for minors does not violate a state constitutional amendment requiring bills to stick to a single subject, a majority of the Nebraska Supreme Court has ruled.
The state’s high court acknowledged in its ruling Friday that abortion and gender-affirming care “are distinct types of medical care,” but found the law does not violate Nebraska’s single-subject rule because both abortion and transgender health fall under the subject of medical care.
The majority relied, in part, on a passage from an 1895 ruling to find the state constitution offers wide latitude on what composes a single subject.
“Ultimately, ‘if a bill has but one general object, no matter how broad that object may be, and contains no matter not germane thereto, and the title fairly expresses the subject of the bill, it does not violate’” the state constitution’s single-subject rule, Chief Justice Mike Heavican wrote for the court.
The ruling came in a lawsuit brought by the American Civil Liberties Union representing Planned Parenthood of the Heartland, which challenged the law that has restricted abortion to 12 weeks of pregnancy as well as banned transgender minors from receiving gender-confirming surgery and restricted their use of hormone treatments since 2023. The high court rejected ACLU attorneys’ arguments that the hybrid law passed last year violates Nebraska’s single-subject rule.
Republican lawmakers in the officially nonpartisan Nebraska Legislature had originally proposed separate bills: an abortion ban at about six weeks of pregnancy and a bill restricting gender-affirming treatment for minors. The GOP-dominated Legislature added a 12-week abortion ban to the existing gender-affirming care bill only after the six-week ban failed to overcome a filibuster.
The combination law was the Nebraska Legislature’s most controversial in the 2023 session, and its gender-affirming care restrictions triggered an epic filibuster in which a handful of lawmakers sought to block every bill for the duration of that session — even those they supported — in an effort to stymie it.
A district judge dismissed the lawsuit last August, and the ACLU appealed.
In arguments before the state high court in March, an attorney for the state insisted the combined abortion and transgender-care measures did not violate the single-subject rule because both fall under the subject of healthcare.
But an attorney for Planned Parenthood argued that the Legislature had recognized abortion and transgender care as separate subjects when they’d introduced them as separate bills at the beginning of last year’s session.
“It pushed them together only when it was constrained to do so,” ACLU attorney Matt Segal argued.
A scathing dissent by Justice Lindsey Miller-Lerman accused the majority of applying different standards to bills passed by the Legislature and those sought by voter referendum. She pointed to the high court’s ruling in 2020 that blocked a ballot initiative seeking to legalize medical marijuana after finding that its provisions to allow people to use marijuana and to produce it were separate subjects that violated the single-subject rule.
Miller-Herman chastised the majority for granting leeway and indulging the Legislature “at the expense of the Constitution.”
“It was the duty of the Legislature … to compose legislation, including titling, which stated ‘one subject’; failure to so compose renders the bill unconstitutional,” Miller-Lerman wrote. “It is not the role of this court to rescue legislative bills.”
Opponents decried Friday’s ruling. ACLU Nebraska Executive Director Mindy Rush Chipman vowed it “will not be the final word on abortion access and the rights of trans youth and their families in Nebraska.”
Ruth Richardson, president and chief executive of Planned Parenthood North Central States, called the ruling “heart-wrenching and infuriating” and said Planned Parenthood would continue providing abortions in Nebraska up to 12 weeks of pregnancy.
“This ban has already devastated Nebraskans’ lives and will undoubtedly widen dangerous health inequities for people in rural areas, people of color, people with low incomes and young people,” she said.
Nebraska Gov. Jim Pillen and the state’s attorney general, both Republicans, lauded the ruling. Pillen noted in a statement that he had worked with lawmakers to fold the 12-week abortion ban into the bill restricting gender-affirming care for minors.
“We worked overtime to bring that bill to my desk, and I give thanks to God that I had the privilege to sign it into law,” he said.
Most Republican-controlled states have implemented abortion bans of some sort since the U.S. Supreme Court overturned Roe vs. Wade in 2022, ending the nationwide right to abortion.
Fourteen states currently have bans on abortion at all stages of pregnancy, with some exceptions; three ban it after about six weeks’ gestational age, before many women know they are pregnant, with a fourth such restriction, in Iowa, set to take effect Monday. Nebraska and North Carolina are the only states that have moved to bans that kick in after 12 weeks of pregnancy.
Most GOP-controlled states in the last few years have also moved to bar gender-affirming care for transgender minors. Twenty-two states are currently enforcing such restrictions.
Several Democratic-controlled states have adopted policies in the last two years to ensure access to both abortion and gender-affirming care, including by trying to block red states’ authorities from investigating healthcare providers in the blue states.
Voters could have the final say on abortion access in Nebraska. Two competing questions on the subject are likely to appear on the November ballot: One would add a right to abortion to the state constitution. The other would enshrine in the state constitution Nebraska’s current 12-week ban.