How the Nebraska GOP may be planning to trample an abortion rights amendment
Dueling ballot measures on abortion don't entirely conflict—but Republicans might say they do
The Nebraska Supreme Court rejected a pair of challenges to two dueling constitutional amendments relating to abortion on Friday, allowing both to appear on the ballot this November.
The first, the “Protect the Right to Abortion” amendment, guarantees “a fundamental right to abortion until fetal viability.” The second, the “Protect Women and Children” amendment, provides that “unborn children shall be protected from abortion in the second and third trimesters,” with exceptions for “medical emergenc[ies]” or in cases of rape and sexual assault.
The court’s decision queues up an unusual ballot for Nebraskans, one that could culminate in a conflict over whether both measures might come into effect.
Under the state constitution, if “conflicting measures” both receive majority support, “the one receiving the highest number” of votes “shall thereby become law as to all conflicting provisions.”
Despite their opposing aims the two measures don’t entirely overlap. The only real conflict would be over the legality of abortion during the second trimester: The pro-abortion measure, known as Initiative 439, guarantees a right to abortion until fetal viability, which occurs during the second trimester, but the anti-abortion measure, designated Initiative 434, prohibits abortion in the second and third trimesters.
Yet Republicans may be preparing to argue that the anti-abortion measure, if it receives the most votes, should completely override the pro-abortion one. But that argument is based on a backward reading of a state statute and embraces an unprecedented constitutional argument—and if Republicans make it, the Nebraska Supreme Court should reject it.
Several other states have constitutional provisions regarding conflicting amendments that are similar to Nebraska’s, but very few cases have triggered these rules. According to the Nebraska Secretary of State, and to the best of my knowledge, this provision has never been invoked in Nebraska before.
The “Protect the Right to Abortion” amendment essentially recreates the Roe v. Wade framework by guaranteeing a “fundamental right to abortion until fetal viability,” and further safeguards abortion access “when needed to protect the life or health of the pregnant patient[.]”
While “fetal viability” is a medical status, not a frozen point in time, it’s generally considered to be around 24 weeks into pregnancy, though some experts put it even sooner, as early as 22 weeks. But even using the latest cutoff for viability, viability would still fall during the second trimester, which extends to around 26 weeks.
The “Protect Women and Children” amendment, by contrast, largely prohibits abortion in the "second and third trimesters." Its actual language evokes the “fetal personhood” arguments that have been made by far-right anti-abortion advocates, because it seems to give fetuses actual rights by providing that “unborn children shall be protected from abortion” starting in the second trimester.
Importantly, the text of the anti-abortion measure doesn’t say anything about abortion access in the first trimester, though it certainly doesn’t protect it. As a result, if both measures were to pass, there would be a “conflicting provision[]” as to the legality of abortion during the second trimester, and the amendment with the most votes should take precedence.
But there would be no conflict during the first trimester. The abortion-rights measure should therefore bar Republicans from passing legislation to restrict abortion during that period, which is something they’ve made clear they want to do. Last year, when GOP lawmakers settled for a 12-week ban after they were unable to pass a six-week ban, Gov. Jim Pillen said, “I pushed hard to get us to 12, but we’re going to end abortion.”
A baseless legal argument
However, it seems possible that Nebraska Republicans are planning to argue that there is a total conflict between the two amendments that would allow them to forge ahead with even harsher restrictions during the first trimester, even if both ballot measures pass.
Last month, the office of Nebraska Secretary of State Bob Evnen, a Republican, claimed that “[i]f two or more measures are approved at such election which are known to conflict with each other or to contain conflicting provisions, the Governor shall also proclaim which is paramount[.]” But this argument has no basis in the state constitution or state law.
That’s because state law gives the governor an extremely limited role: He must simply declare which amendment has received a majority of votes. This limited role cannot possibly be read to give the governor the freewheeling authority to nullify a constitutional amendment.
When I followed up with Evnen’s office to try to clarify what he meant, I was told that the secretary of state would not comment on the matter due to litigation that was then pending before the Nebraska Supreme Court. His office did not respond to a further request for comment after the conclusion of both lawsuits challenging the two amendments.
Despite the mischaracterization of the law in the secretary of state’s press release, several news outlets have nonetheless taken the statement at face value and have parroted the idea that it’s up to the governor to resolve a potential conflict.
There’s limited caselaw on this question
Nonetheless, if Pillen steps in and alleges that he has the authority to determine if there’s a conflict, how might this ultimately be resolved? At some point, the Nebraska Supreme Court would have to step in, though there’s remarkably little caselaw on how to determine whether a conflict exists.
The two of the most prominent cases on this question come from Arizona, where the state Supreme Court has (almost improbably) answered the question twice.
In 1968, Arizona voters ratified two separate constitutional amendments: The first one abolished the elected position of state auditor; the second converted all statewide elected executive branch offices, including the auditor, from two-year terms to four-year terms. There was a pretty obvious conflict if both amendments were ratified, since one referred to an office that the other abolished.
Then, in 1994, it happened again. One amendment approved by Arizonans limited the state’s mine inspector (an elected position, believe it or not) to four two-year terms; the other extended the inspector’s term of office from two to four years. Again, an obvious conflict.
Yet on both occasions, the court held that there was no conflict between the amendments. The court emphasized that, “[w]hen constitutional amendments seemingly conflict, ‘it is the duty of the court to harmonize both so that the constitution is a consistent workable whole.’”
As such, in the first case, the role of auditor was eliminated and the other state officers’ terms were extended to four years. In the second case, the mine inspector was limited to four terms, but those terms would now be four years each rather than two.
Both of these results were disputed by dissenting justices, and the second case produced a borderline absurd outcome. Yet the court was emphatic that “[t]his approach ensures that the submission of one or the other amendment ‘was not a pointless act’ and that ‘the will of the majority as expressed in free elections . . . prevails.’”
At the moment, a partial conflict looks likely to manifest itself in Nebraska. There’s been little polling so far, but one recent survey suggested that both amendments might pass, and that the anti-abortion measure would receive more votes than the pro-abortion measure.
And though it may seem extreme for Nebraska Republicans to try to nullify the adoption of an amendment, it’s unfortunately entirely in keeping with their nationwide strategy to keep abortion rights amendments off the ballot—and to try to neutralize them if and when they pass.