(September 5, 2024 – Lincoln, Nebraska) On September 5, 2024, Thomas More Society attorneys filed a brief with the Nebraska Supreme Court challenging the state’s “Protect the Right to Abortion” ballot initiative. On August 30, 2024, the Nebraska Supreme Court allowed the constitutional challenge against the state’s abortion expansion ballot initiative to move forward, agreeing to hear a request for a relatively rare proceeding known as an “original action.” Oral argument before the Nebraska Supreme Court is scheduled for Monday, September 9, 2024, at 10 a.m. (Central).

In the brief, Thomas More Society attorneys demonstrate how the abortion expansion initiative contains “remarkably misleading terms” and is “unconstitutionally riddled with separate subjects”—in violation of the Nebraska Constitution’s Single Subject Rule. For example, in addition to proposing a fundamental right to abortion before viability, the abortion initiative would also establish a right to abortion after viability—until birth—for undefined “health” reasons. “Allowing virtually unlimited abortion after ‘viability,’ for ‘health’ reasons,” the Thomas More Society brief argues, “is a different subject than the right to abortion before ‘viability.’”

In another instance of what the brief labels as misleading language, the abortion expansion initiative provides for a “fundamental right” to abortion, “without interference from the state of its political subdivisions.” The brief argues that “‘fundamental rights’ have long been understood to allow some regulation of the underlying right, including the right to abortion under Roe v. Wade.” Additionally, the brief lays out how the abortion expansion initiative “effectively will abolish nearly 50 years of legislative enactments” and may potentially have further ramifications on all existing medical regulations.

These existing laws include the state’s dismemberment abortion ban and the parental notification requirement for abortions on minors. Laws requiring physician involvement, physician availability for postoperative care, care of born-alive aborted infants, care of post-viability aborted infants, and detailed informed consent requirements, will effectively be repealed if the abortion expansion ballot initiative is accepted by voters.

The brief further argues that the abortion initiative opens the determination of viability to a large number of non-physician “health care practitioners.” Under current Nebraska law, “health care practitioners” include not only physicians, but also psychiatrists, pharmacists, nurses of varying degrees, and many others. This is one way in which this clause of the abortion expansion ballot initiative touches on a separate subject than the question of a “fundamental right” to pre- or post-viability abortion, in violation of the Single Subject Rule.

Thomas More Society attorneys seek a court order requiring Secretary of State Evnen to deny certification of the ballot initiative and withhold it from the ballot, or in the alternative, issue an order declaring the measure invalid.

Read the Brief of Relator, LeGreca, filed on September 5, 2024, by Thomas More Society attorneys on behalf of Carolyn LaGreca, in State ex rel. LaGreca v. Evnen, with the Nebraska Supreme Court, here.