LINCOLN, Neb. (CN) — A Nebraska judge will consider whether state lawmakers violated the Nebraska Constitution when earlier this year they jammed a second hot-button issue into an already controversial bill.
That bill, LB 574, was originally written to limit access to gender-affirming care for transgender minors. In May, though, lawmakers decided to make LB 574 about abortion too, adding in new language about the procedure.
The new restrictions, added to the law on May 16, ban the procedure past 12 weeks of pregnancy. Rules like this had previously seemed dead in the water, at least for this year, after senators in April rejected a six-week abortion ban by one vote.
Critics of the Frankenstein bill argue it violates a clause of the Nebraska Constitution that prohibits passing two separate unrelated topics in one bill. They point to Article III, Section 14 of the Nebraska Constitution, which states that "no bill shall contain more than one subject."
In late May, shortly after Republican Governor Jim Pillen signed the bill into law, Pillen and other top state officials were hit with a state lawsuit over it. The lawsuit — brought by Planned Parenthood of the Heartland and Sarah Traxler, a reproductive doctor who works with the group — argued the law was "unconstitutional and void" under Nebraska's constitution. It asked Lancaster County District Judge Lori A. Maret for an injunction.
The suit was filed in state court 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 are named as defendants in the suit.
During a virtual hearing on Wednesday, Judge Maret began digging through the legal arguments of the case. The hearing was aimed at addressing multiple issues, including the plaintiffs' request for an injunction and efforts by the defendants to dismiss the case entirely.
The plaintiffs are seeking an immediate injunction due to "ongoing severe harms" that impact reproductive clinics like Planned Parenthood "every day," Jane Seu, an attorney with the American Civil Liberties Union of Nebraska, told Maret on Wednesday. Meanwhile, the Nebraska attorney general's office cast doubt about whether the plaintiffs in the case had standing to bring it at all.
“In Nebraska, there is no vested right to practice medicine," AG attorney Erik W. Fern argued, laying out the office's arguments against standing. The right to practice medicine was "conditional," he said, and “physicians are not able to bring lawsuits on behalf of harmed patients.”
There were also sovereign-immunity issues with the case, Fern said, because even though the Nebraska Legislature passed the law, officials in the state executive branch were now being sued for it. He also argued that the single-subject rule was "liberal" and said LB 574 was fine because both gender-affirming care and abortion were issues of public health and welfare.
“We can actually connect [these two issues] very closely,” Fern said.
The plaintiffs disagreed entirely — with Matthew R. Segal, another ACLU attorney, arguing LB 574 was "probably the greatest violation of the single-subject rule that the courts have seen in a very long time."
If the court upheld this bill, he argued it would gut the single-subject rule, leaving "really nothing left." He cited caselaw dating back to the 19th century, which he said clearly barred the inclusion of two separate issues into one bill.
Seu, the other ACLU attorney, likewise pushed back on arguments against plaintiffs' standing.
"It's undisputed" that this bill "unequivocally regulates abortion," Seu said. "It is undisputed my clients are abortion providers."
Maret on Wednesday gave few hints of how she may ultimately rule. Her decision in this case could ultimately come down to her interpretation of the single-issue rule and whether she buys arguments from the state that both abortion and transgender health care broadly fall under the same topic.
Maret ended the hearing by saying she would consider the issues and enter a written ruling. She did not say when that ruling could be expected.
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