Nebraska Supreme Court approves competing abortion initiatives for November ballot

Washington, D.C. Newsroom, Sep 13, 2024 / 15:54 pm

Two proposed constitutional amendments — one pro-life and one pro-abortion — will appear on Nebraska ballots on Nov. 5, the state Supreme Court ruled on Friday.

One referendum would establish constitutional protections for unborn children in later stages of pregnancy and the other would create a constitutional right to obtain an abortion.

Both proposed amendments faced legal challenges, which claimed the proposals violated the constitution’s single-subject rule. The Supreme Court found that both amendments contain one general subject and are not in violation of the rule.

Pro-life amendment

The pro-life referendum would grant constitutional protections to “unborn children” that protect them from “abortion in the second and third trimesters” except in the case of a medical emergency or when the pregnancy results from sexual assault or incest.

It would effectively prohibit elective abortions after the 12th week of pregnancy.

Although the proposed amendment would not grant constitutional protections to unborn children in the first trimester of pregnancy, state lawmakers would be allowed to adopt stronger pro-life protections than what is established in the amendment.

Pro-abortion amendment

The pro-abortion referendum would establish “a fundamental right to abortion until fetal viability, or when needed to protect the life or health of the pregnant patient.” It would prohibit “the state and its political subdivisions” from interfering with the newly established constitutional right.

It would effectively guarantee the legality of elective abortion until viability, which occurs around the 23rd or 24th week of pregnancy.

The text defines viability as the point at which “there is a significant likelihood of the fetus’ sustained survival outside the uterus without the application of extraordinary medical measures.” A preborn child’s viability would be determined by “the patient’s treating health care practitioner,” who is often the abortionist.

The text does not elaborate on when the “health” of the mother exception would apply or whether “mental health” would be included in the exception.

Because the Nebraska measures are mutually exclusive and cannot both be added to the constitution, the measure with the most “for” votes will be added. For a ballot measure to pass in Nebraska, it needs more “for” votes than “against” votes and must receive at least 35% of the total votes cast at that election to be in favor of the measure. The governor is responsible for determining whether there is a conflict, per state law.

Nebraska’s current abortion laws

Under current law, Nebraska allows elective abortion through the 12th week of pregnancy. After 12 weeks, a woman can only obtain an abortion when the child is conceived in rape or incest or if there is a medical emergency.

The pro-life referendum would allow the current law to stay in place. However, the pro-abortion referendum would substantially expand abortion.

Nebraska is one of 10 states where abortion will be on the ballot this fall.