Nebraska's New Law Limiting Abortion and Trans Healthcare is Argued before the State Supreme Court

Members of the Nebraska Supreme Court appeared to meet with skepticism a state lawyer's defense of a new law that combines a 12-week abortion ban with another measure to limit gender-affirming health care for minors.

Assistant Attorney General Eric Hamilton argued Tuesday that the hybrid law does not violate a state constitutional requirement that legislative bills stick to a single subject. But he went further, stating that the case is not one the high court should rule on because it is politically charged and lawmaking is within the sole purview of the Legislature.

"Didn't that ship sail about 150 years ago?" Chief Justice Mike Heavican retorted.

Hamilton stood firm, insisting the lawsuit presented a "nonjusticiable political question" and that the Legislature "self-polices" whether legislation holds to the state constitution's single-subject rule.

"This court is allowed to review whether another branch has followed the constitutionally established process, isn't it?" Justice John Freudenberg countered.

The arguments came in a lawsuit brought last year by the American Civil Liberties Union representing Planned Parenthood of the Heartland, contending that the hybrid law violates the one-subject rule. Lawmakers added the abortion ban to an existing bill dealing with gender-related care only after a proposed six-week abortion ban failed to defeat a filibuster.

The law was the Nebraska Legislature's most controversial last session, and its gender-affirming care restrictions triggered an epic filibuster in which a handful of lawmakers sought to block every bill for the duration of the session – even ones they supported – in an effort to stymie it.

A district judge dismissed the lawsuit in August, and the ACLU appealed.

ACLU attorney Matt Segal argued Tuesday that the abortion segment of the measure and the transgender health care segment dealt with different subjects, included different titles within the legislation and even had different implementation dates. Lawmakers only tacked on the abortion ban to the gender-affirming care bill after the abortion bill had failed to advance on its own, he said.

Segal's argument seemed based more on the way the Legislature passed the bill than on whether the bill violates the single-subject law, Justice William Cassel remarked.

But Justice Lindsey Miller-Lerman noted that the high court in 2020 blocked a ballot initiative seeking to legalize medical marijuana after finding it violated the state's single-subject rule. The court found the initiative's provisions to allow people to use marijuana and to produce it were separate subjects.

If producing medical marijuana and using it are two different topics, how can restricting abortion and transgender health care be the same subject, she asked.

"What we've just heard are attempts to shoot the moon," Segal said in a rebuttal, closing with, "These are two passing ships in the night, and all they have in common is the sea."

The high court will make a ruling on the case at a later date.