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Nebraska Supreme Court upholds law restricting both medical care for transgender youth and abortion
News Update

Nebraska Supreme Court upholds law restricting both medical care for transgender youth and abortion

OMAHA, Nebraska (AP) — A Nebraska law that combines abortion restrictions with another measure limiting gender-affirming health care for minors does not violate a state constitutional amendment that requires bills to be limited to a single subject, a majority of the Nebraska Supreme Court ruled Friday.

In its ruling, the state’s highest court recognized that abortion and gender reassignment surgery are “different types of medical care,” but found that the law did not violate Nebraska’s single-subject rule because both abortion and transgender health fall under the umbrella of medical care.

The majority relied in part on a passage from an 1895 ruling and concluded that the state Constitution provides broad latitude as to what constitutes a single issue.

“Ultimately, ‘If a bill has only one general purpose, no matter how broad that purpose, and contains no unrelated matter, and the title clearly expresses the object of the bill, it does not violate,'” Chief Justice Mike Heavican wrote for the court.

The ruling came in a lawsuit filed by the American Civil Liberties Union, which represents Planned Parenthood of the Heartland, challenging the law, which limits abortions to 12 weeks of pregnancy, bans gender reassignment surgery and restricts the use of hormone treatments for transgender minors starting in 2023. The Supreme Court rejected arguments from ACLU lawyers who argued that the hybrid law passed last year violates Nebraska’s single-subject rule.

Republican representatives in Nebraska’s officially nonpartisan legislature had originally proposed two separate bills: a ban on abortion after the sixth week of pregnancy and a bill to restrict gender reassignment surgery for minors. The Republican-dominated legislature added a ban on abortion after the twelfth week of pregnancy to the existing bill on gender reassignment surgery after the six-week ban failed to pass due to a filibuster.

The combination bill was the most controversial bill in the Nebraska Legislature in the 2023 session, and its gender-affirming care restrictions sparked an epic filibuster in which a handful of lawmakers attempted to block every bill for the duration of that session – even those they supported – in an effort to prevent the bill from passing.

A district judge dismissed the lawsuit last August and the ACLU appealed.

In a Supreme Court hearing in March, a lawyer for the state insisted that the combined abortion and transgender care measures did not violate the state’s single-subject rule because both areas fell under the purview of health care.

However, a lawyer for Planned Parenthood argued that lawmakers recognized abortion and transgender care as separate issues by introducing them as separate bills at the beginning of last year’s session.

“She only brought them together when she was forced to,” argued ACLU attorney Matt Segal.

In a scathing dissent, Justice Lindsey Miller-Lerman accused the majority of applying different standards to bills passed by the House and those required by referendum. She pointed to the Supreme Court’s 2020 ruling that blocked a popular initiative to legalize medical marijuana after finding that provisions allowing marijuana use and production were separate issues and violated the state’s single-issue rule.

Miller-Herman criticized the majority for allowing leeway and giving in to the legislature “at the expense of the Constitution.”

“It was the duty of the Legislature to write laws that contained ‘a subject,’ including headings. Failure to do so renders the law unconstitutional,” Miller-Lerman wrote. “It is not the job of this Court to save bills.”

Opponents condemned the ruling. Mindy Rush Chipman, executive director of the ACLU Nebraska, said the ruling “will not be the final word on abortion access and the rights of transgender youth and their families in Nebraska.”

Ruth Richardson, president and CEO of Planned Parenthood North Central States, called the ruling “heartbreaking and upsetting” and said Planned Parenthood will continue to perform abortions up to 12 weeks’ gestation in Nebraska.

“This ban has already devastated the lives of Nebraskans and will undoubtedly widen dangerous health disparities for people in rural areas, people of color, low-income people and young people,” she said.

Nebraska Governor Jim Pillen and the state’s attorney general, both Republicans, praised the ruling. Pillen noted in a statement that he had worked with lawmakers to include the ban on abortion after 12 weeks of pregnancy in the law restricting gender-affirming care for minors.

“We worked overtime to get this bill to my desk, and I thank God that I had the privilege of signing it and signing it into law,” Pillen said.

Since the U.S. Supreme Court overturned Roe v. Wade in 2022, eliminating the federal right to abortion, most Republican-governed states have enacted abortion bans of some sort.

Fourteen states currently ban abortion at all stages of pregnancy, with some exceptions. Three states ban abortion after six weeks of pregnancy, before most women know they are pregnant. A fourth such restriction, in Iowa, is set to take effect next week. Nebraska and North Carolina are the only states to ban abortion after 12 weeks of pregnancy.

Most GOP-controlled states have also begun banning gender-affirming care for transgender minors in recent years, and 22 states currently have such restrictions in place.

Several Democratic-majority states have taken steps over the past two years to ensure access to abortion and gender reassignment surgery, including trying to block investigations of health care providers in their states by authorities in areas where such bans are in place.

Voters could have the final say on abortion access in Nebraska. Two competing questions on the issue are likely to appear on the November ballot: One would add a right to abortion to the state constitution. The other would enshrine Nebraska’s current 12-week ban in the state constitution.

Margery A. Beck, The Associated Press

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