LINCOLN, Neb. (CN) — A measure passed by the Nebraska Legislature that banned abortion past 12 weeks of pregnancy and limited access to gender-affirming care for minors was “the stitching together of two discrete aims,” an ACLU attorney told the Nebraska Supreme Court on Tuesday.
Therefore, the attorney, Matthew Segal argued, the bill ran afoul of the Nebraska Constitution’s single-subject rule.
“These are two ships passing in the night,” he said about the issues, “and all they have in common is the sea.”
Nebraska's solicitor general, Eric Hamilton, saw it differently. The two main aspects of the bill, LB 574, fit together under one overall subject — public health and welfare, he said.
The measure is officially called the “Adopt the Let Them Grow Act and the Preborn Child Protection Act and provide for discipline under the Uniform Credentialing Act.” And if the contents relate to that title, it passes constitutional muster, Hamilton said.
“Looking at the subject in the title, and then considering whether every element of the bill is related to and germane to every subject in the title, and LB 574 meets that standard,” he said.
The bill was originally written to limit access to gender-affirming care for transgender minors. But lawmakers decided to make LB 574 about abortion too, adding in new language about the procedure a few weeks after Nebraska's unique unicameral legislature came one vote short of breaking a filibuster of a 6-week abortion ban.
The new abortion restrictions banned the procedure after 12 weeks of pregnancy. Critics argued the measure violated Article III, Section 14 of the Nebraska Constitution, which prohibits jamming two separate unrelated topics in one bill. The clause states "no bill shall contain more than one subject."
In May 2023, shortly after Republican Governor Jim Pillen signed the measure, Pillen and other top state officials were hit with a lawsuit by Planned Parenthood of the Heartland and Sarah Traxler, a reproductive doctor who works with the group. They claim the law was "unconstitutional and void" under the state constitution.
The complaint was filed in Lancaster County, the second-most populous county in Nebraska and home to Lincoln, the state capital. Pillen, Republican Nebraska Attorney General Mike Hilgers and three top officials at the state's Department of Health and Human Services were named as defendants.
In August, Lancaster County District Court Judge Lori A. Maret ruled that while Planned Parenthood had standing, Traxler did not, and that LB 574 did not violate Nebraska’s single-subject rule. Planned Parenthood appealed.
On Tuesday, the seven-member high court grilled both attorneys, with Hamilton seeming to attract a bit more peppering than his opponent.
At one point, Chief Justice Michael G. Heavican interrupted Hamilton twice in succession, asking him if the fact that Nebraska has a single-house legislature means there are fewer checks and balances, and if that have any relevance to the case. Hamilton said no.
“There are maybe different balances within the legislative branch, but I don’t see any difference in the checks and balances between the different branches,” he said. “It’s still the case that bills are passed by the Legislature and are signed and vetoed by the governor, and this court reviews the statutes and legislative acts that pass through that process.”
Segal, representing the plaintiffs, was asked if the bill was an example of logrolling, a term that refers to lawmaker vote-trading to ensure that measures not able to pass on their own can be combined, or rolled together, into a bill that can pass a legislative body.
“The Legislature itself treated these two halves of LB574 separately, in separate bills, until an abortion ban failed as a stand-alone measure. And it was only then that one log was tacked on to the other log,” Segal said. “It is up to the Legislature to go back to the drawing board.”
If the court rules in favor of Segal and his clients, the Legislature would have little, if any, time to react this year. The last scheduled day of the legislative session is currently April 18.
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