Zach Wendling
LINCOLN — Attorneys challenging and defending Nebraska’s new law combining tighter restrictions on abortion and gender-affirming care for minors made their case Tuesday to the state’s high court.
The Nebraska Supreme Court heard arguments in Planned Parenthood’s appeal of a Lancaster County District Court ruling that it was legal for the Legislature to fold a more restrictive abortion measure into Legislative Bill 574, whose original purpose was to limit gender-affirming care. Planned Parenthood is being represented by attorneys for the ACLU.
At issue is whether the Legislature acted beyond constitutional limits that require each bill to contain only a single subject, a state constitutional provision intended to prevent deal-making to pass combined bills that might have failed on their own.
The court could decide the bill contains two subjects, Planned Parenthood’s attorney said, because two measures were combined into a single bill after a separate and stricter version of the abortion ban failed to clear a legislative filibuster.
The state’s attorney said the court should grant a wide berth to the Legislature to police itself on the single-subject rule, describing the issue as political and not judicial. He said the decision should be beyond the court’s authority.
Questions from justices
The justices asked ACLU attorney Matt Segal and Nebraska Solicitor General Eric Hamilton a similar number of questions. Many concerned the case law behind arguments for and against applying the single-subject rule to LB 574.
Justice Lindsey Miller-Lerman seemed to indicate she had questions about disagreements in previous cases about how and when the single-subject rule should be applied. She focused some of her attention on whether voter-led initiatives should have a higher standard for applying the single-subject rule than the Legislature.
Historically, the Court has deferred more to the Legislature on those matters than to the people. Justices mentioned a briefed case from 2020 where a single-subject challenge removed a medical marijuana legalization ballot initiative for dealing with multiple subjects: the use and production of the crop.
Miller-Lerman also asked whether the Nebraska Constitution requires her to treat an unborn child as a person and whether that shifts the discussion of the bill from public health to private health, which might make it two subjects.
Several justices asked how much weight the court should place on the titles of bills for deciding a single-subject case.
“It violates the single-subject rule…,” Segal said in his opening arguments. “What we’re doing is not some broad rewrite of the medical procedure in a field. It’s the stitching together of two separate bills.”
Chief Justice Mike Heavican pushed back on Hamilton’s argument that the court should not decide the single-subject case. He pointed to years of cases where the court has weighed in, saying, “Didn’t that ship sail about 150 years ago?”
How much deference to Legislature
Hamilton argued the court should follow the lead of the district court and defer to the Legislature on this matter because the bill combined efforts focused on the “health and general welfare” of the people. He said the bill was a single subject even if only considering the title as well.
Before the abortion measure was added, LB 574 was already labeled as a health regulation bill, he said. Its introduced copy describes the original bill as the “Let Them Grow Act.” It was later amended and gave both major parts of the bill a name.
Hamilton argued the title was clear: It says it’s about public health and welfare.
“The problem for the defendants is that those words predated the addition of the abortion ban,” Segal said.
Justice William Cassel pressed Segal to say whether he was limiting his legal argument on the single-subject rule to the order and actions of the Legislature in having combined the bills after a similar abortion measure was defeated.
Segal, during and after the hearing, said that step by the Legislature did seem to make it clearer that the single-subject rule was being sidestepped, but he said his case would apply even if the legal challenge was narrowed to the titles and natures of the combined proposals.
Justice John Freudenberg asked Segal whether his client’s legal challenge could risk the legality of the “Christmas tree bills” the Legislature often passes at the end of legislative sessions as a catch-all for separate bills when it is running out of time to pass them. Segal said it depends.
He said that his case’s specifics differ and that the Legislature combined the abortion ban and gender-affirming care proposals after a standalone abortion ban had been defeated. Still, he said some of the session-ending combo bills could be put at risk, depending on what the Legislature combined.
Beets and chicories
At one point the justices brought up case law that mentioned a law governing beets and chicories as dealing with separate subjects. Hamilton argued later that many of those older cases have been clarified by later court decisions.
Anthony Schutz, a law professor at the University of Nebraska-Lincoln, wrote a brief in support of the idea that the law appeared to be combining separate subjects. But Schutz said he saw no advantage either way in the Supreme Court’s questioning Tuesday.
Attorneys for both sides summed up their arguments at the end:
“This is a political question,” Hamilton said.
“These are two ships passing in the night,” Segal said. “All they have in common is the sea.”