Judge says bill banning abortions, transgender surgeries does not violate single-subject rule

Judge Lori Maret, in a 21-page order issued late Friday evening, rejected an argument brought by Planned Parenthood that a new law (LB574) passed by the Legislature this year violated the state’s single-subject rule.

“[T]he Court concludes that LB574 has the general object of health care and that all parts of the bill relate to health care,” Maret wrote in her order. “They are both medical treatments involving surgery or pharmaceuticals.”

The ACLU of Nebraska sued the state on behalf of Planned Parenthood one week after the new abortion restrictions were signed into law by Gov. Jim Pillen in May.

In court filings and oral arguments, Planned Parenthood’s attorneys argued the Legislature violated the single-subject rule of the Nebraska State Constitution by “jamming together” two unrelated provisions into a single bill.

After a 6-week abortion ban fell one vote short of advancing in April, senators successfully amended a 12-week abortion ban onto another bill (LB574) prohibiting certain medical procedures for transgender youth in Nebraska late in the legislative session.

The bill passed on a 33-15 vote, just enough to defeat a filibuster.

Attorneys for Planned Parenthood said the amended version of LB574 included two different issues with two separate tiles, enforcement schemes, and starting dates, and were not “naturally connected and incidental to” one another.

The Nebraska Attorney General’s Office, which defended the law in court, argued to Maret that Planned Parenthood’s attorneys wanted the judicial branch to meddle in a policy choice made by the Legislature, and said doing so would violate the independence of a separate but equal branch of government.

Instead, Assistant Attorney General Erik Fern asked the court to consider what was within the “four corners” of the bill, and argued abortions and medical treatments for transgender youth both fit under the banner of public health and welfare.

In her order, Maret said that while the single-subject rule provided “fertile ground for litigation” in Nebraska’s first 75 years as a state, the Nebraska Supreme Court “has been much more circumspect about acting as a super-parliamentarian” in recent years.

A challenge of a 1967 law that amended provisions related to the sales and use tax, income tax and other provisions was rejected by the state’s highest court, which found that “if an act has but one general object, no matter how broad that object may be” did not violate the rule.

A more recent case from 1992 dealing with a 40-section bill amending the state’s tax laws passed a year earlier cited the earlier case and found that “the on-general-object-no-matter-how-broad standard” was not out of line.

Maret said the breadth of those decisions “might be somewhat striking” compared to more recent cases, such as a 2020 decision where justices ruled that a ballot initiative to enact medical marijuana in Nebraska violated the single-subject rule.

Those cases dealt with petition initiatives, however, and not the work of the Legislature.

Maret said there were several reasons to consider the single-subject rule more broadly when it came to acts of state lawmakers.

The legislative process is more deliberative and senators have more time to consider and debate bills, and the Legislature also allows for some give-and-take in its debates, whereas a petition initiative is “take-it-or-leave-it,” Maret wrote.

The judge also said that as a co-equal branch of government, the court should consider the separation of powers.

“Applying that standard here, the Court concludes that LB574 has the general object of health care and that all parts of the bill relate to health care,” Maret wrote. “LB574 also regulates the conduct of licensed healthcare workers who provide abortion or gender-altering care unlawfully.”

Planned Parenthood did not dispute that abortion and gender-affirming surgeries were health care procedures, Maret said, but it did not matter because “health care” did not appear in the title of the bill.

But Maret also rejected an argument put forward by the state that the question of whether or not a bill violated the single-subject rule was “a political question.”

“So far as this Court can tell, the Supreme Court never expressly answered that question,” the judge said. “It is true that courts should be careful not to unduly interfere in the legislative process. It also might be true that if one asks how many ‘subjects’ a bill has, the answer will say more about the person who responds than the bill itself.

“[T]he Supreme Court has effectively responded to these concerns by liberally construing the single-subject rule in the legislative context. In other words, the solution is judicial humility, not abdication.”

Friday’s decision leaves in place Nebraska’s 12-week abortion ban, which took effect when it was signed into law by Gov. Jim Pillen in May. LB574’s provisions related to gender-affirming care are set to take effect on Oct. 1.

Planned Parenthood Advocates of Nebraska indicated in a tweet Friday evening it would appeal the decision to the Nebraska Supreme Court.

“No matter what happens, we will never stop fighting for the freedom of bodily autonomy, and health of our communities,” the organization tweeted. “We are working tirelessly to assess every option and remain wholeheartedly committed to protecting Nebraskans’ freedom to access abortions.”

In an email late Friday evening, Pillen and Attorney General Mike Hilgers praised the ruling.

“I was proud to sign into law a measure that protects kids and defends the unborn, and I am pleased that it has been upheld,” Pillen said.

Hilgers thanked Maret for what he called “the court’s thoughtful analysis and recognition of the Legislature’s prerogatives and processes.

“As a result of today’s order, LB574 remains law in Nebraska,” Hilgers said.