OMAHA, Nebraska — As voting deadlines approach, courts in Nebraska and Missouri are considering legal arguments to pass measures aimed at removing abortion rights from the hands of voters.
In Missouri, a day before the state Supreme Court is set to hear arguments over whether a proposed abortion rights amendment will be put to voters for approval, Republican Secretary of State Jay Ashcroft has pulled the measure itself from the ballot and revoked its certification.
Monday’s move by Ashcroft, who opposes abortion, is largely symbolic. The Supreme Court is expected to have the final say on whether the measure, which is designed to overturn Missouri’s near-total abortion ban, should go before voters.
The Missouri Supreme Court hearing on Tuesday comes just hours before the state’s deadline to make changes to this year’s ballot.
In Nebraska, the Supreme Court heard arguments Monday in three lawsuits aimed at keeping one or both of the state’s competing abortion initiatives off the ballot.
One initiative would enshrine the right to abortion until viability in the Nebraska Constitution, or later to protect the health of the pregnant woman. The other would enshrine the current 12-week abortion ban in the Nebraska Constitution, passed by the Legislature in 2023, with exceptions for rape, incest and the life of the pregnant woman.
Two lawsuits — one filed by an Omaha resident and the other by a Nebraska neonatologist, both of whom oppose abortion — argue that the measure seeking to expand abortion rights violates the state’s ban on including more than one issue in a bill or ballot measure. They say the ballot measure concerns abortion rights until viability, abortion rights after viability to protect a woman’s health and whether the state can regulate abortion, which amounts to three separate issues.
But advocates opposing the abortion rights measure spent much of their time challenging the bill’s language, with attorney Brenna Grasz insisting that the language that “all persons” have a fundamental right to abortion would extend abortion rights to third parties, such as parents who want to force a minor child to have an abortion.
“Is this a single-issue argument?” asked Chief Justice Mike Heavican.
Attorney Matt Heffron with the conservative Chicago-based nonprofit Thomas More Societywho has filed lawsuits across the country challenging abortion rights, argued that the Protect Our Rights initiative merges competing issues into one measure. It would force voters who support abortion up to the point of fetal viability to also support abortion after that point to protect the mother’s health, which they may not want to do, he said.
“This is a huge change to current Nebraska law that was passed by representatives, and each of these bills should be voted on separately by voters,” Heffron said.
Heavican countered that “virtually every bill that has gone through the Legislature” that addresses abortion has also included the topics of exceptions and state regulation.
Heffron responded that lawmakers had the advantage of time and expertise to work out the terms of those bills and that voters go to the polls far less informed. But the justices noted that a nearly identical argumentation with one subject about a vote on abortion rights by the conservative Florida Supreme Court earlier this year failed.
An attorney who filed the lawsuit challenging the 12-week ban initiative argued that if the Supreme Court finds that the abortion rights measure fails the “single-subject test,” it should also find that the 12-week ban initiative fails.
Boston attorney David Gacioch said that under the opposing parties’ theory, the 12-week ban would cover at least six separate topics, including regulation of abortion in the first, second and third trimesters and separate exceptions for rape, incest and the life of the mother.
Gacioch acknowledged that insisting on separate votes for each of these issues would be as misleading as splitting the abortion rights measure into separate issues.
“We don’t think that’s what this court has formulated under a single-subject test,” Gacioch said. “We think it would frustrate the rights of voters to make constitutional amendments as reflected in the Constitution.”
The state Supreme Court has offered a mixed bag for challenges to single-subject law. In 2020, the Nebraska Supreme Court blocked a voting initiative attempted to legalize medical marijuana after it was found that the provisions allowing marijuana use and production are two separate subjects that conflict with the state’s one-person rule.
But in July, the Supreme Court ruled that a hybrid bill passed by the Legislature in 2023 combined the ban on abortions after 12 weeks with another measure limiting gender-affirming health care for minors does not violate the one-subject ruleThat prompted a scathing dissent from Justice Lindsey Miller-Lerman, who accused the majority of applying different standards to bills passed by the legislature than to bills pursued by voters through a referendum.
The court agreed to expedite Monday’s hearing, since state law requires November ballots to be certified by Friday.
Abortion is currently on the November ballot in nine states. In addition, a measuring in new york would prohibit discrimination based on pregnancy outcomes, but does not specifically mention abortion.
Abortion rights advocates have historically won the most votes they have ever won, on all fronts. seven voting measures since the U.S. Supreme Court overturned Roe v. Wade in 2022, ending a nationwide right to abortion. Since the ruling, most Republican-controlled states have enacted bans or restrictions, including 14 that now ban abortion at all stages of pregnancy.
With such high stakes, most measures have been the subject of lawsuits. Arizona Supreme Court the ruling means that the state may refer to an embryo or fetus in a pamphlet as an “unborn human being”; courts in arkansas found paperwork problems with initiative requests and kept the measure off the ballot. A measure is on the ballot in South Dakotabut an anti-abortion group is trying to prevent the votes from being counted.
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Associated Press journalist Summer Ballentine contributed to this report from Columbia, Missouri.