Nebraska State Supreme Court Goes Rogue, Bans All The Healthcare, Katie
Combined abortion/trans care bans receive bizarre nod of approval.
In Lincoln, Nebraska, on Friday, a long-lived drama came to a close when the state supreme court rejected a challenge from Planned Parenthood of the Heartland to a bill that combined an abortion ban, and a ban on trans healthcare for youth under 19. The challenge was based on the Nebraska constitution’s requirement that each bill only address a single subject — while these two provisions seemed unrelated, the state Supreme Court ruled otherwise.
The plaintiffs had good reason to be hopeful, as even the Republican legislature had treated the two provisions as separate measures for nearly all of the 2023 legislative session. It was only at the close of session when neither could pass alone that they were combined. Ultimately this did not matter to the court, and abortion is now illegal after 12 weeks, while the state’s chief medical officer has been granted power to ban any or even all trans healthcare for under-19s.
Eighteen months ago neither the abortion ban nor the trans healthcare limits seemed likely to pass. Indeed, the abortion ban actually failed in a direct vote against a filibuster mounted by (if we may quote our own dear Dok) two “absolute BOSSES,” state Senators Machaela Cavanaugh and Megan Hunt. Together they organized Democrats to filibuster literally every bill in the lege, shutting down all lawmaking for a good while, in order to stop the two regressive measures.
After the abortion measure failed outright (and thus could not be brought up again that session), wary Nebraska Republicans held off on the trans care ban known as LB 574. After some horse trading, they amended 574 to include the failed abortion provisions, with a ban beginning at 12 weeks instead of six to satisfy a few less reactionary Republicans. The combined bill was then passed on May 22, 2023, in the twilight of the session.
The single-subject rule would not historically have been seen as a particularly high barrier to vault. Inded, Friday’s decision in Planned Parenthood of the Heartland v. Hilgers quoted an 1895 case (Van Horn v. State) to argue that a statute is constitutional if as a bill “the act ha[d] a ‘single main purpose’ and ‘nothing [is] embraced in the act except what [is] naturally connected with and incidental to that purpose.’”
The problem for the conservatives in this case, and the hope of the appellants fighting for healthcare access, is that while old precedents frequently grow more persuasive the longer they stand, if there’s a more recent decision that is contrary, the older precedent is generally considered overruled. And in this case, the state’s high court decided in 2020 that a proposed medical marijuana law that addressed who has a right to medical marijuana, where and how they can grow or buy it, and where and when they can consume it, constituted literally eight different subjects. That case, State ex rel. Wagner v. Evnen (2020) removed the citizens’ initiative from the ballot before voters could approve it.
This went dramatically against many longstanding precedents, including Van Horn v. State, but also many restatements of the general principle that the single subject requirement can be satisfied by a broad single purpose even if there exist many separate details. The “Evnen” of the case was Republican Nebraska Secretary of State Robert Evnen, a conservative and no friend of liberal causes, who originally resisted the initiative on other grounds, but did rule medical marijuana was a single subject. Like a sane person.
On the surface it’s not clear where the state supreme court is headed on single subject restrictions. Technically the restriction of legislative bills to a single subject and public initiatives to a single subject are found in different places of the state constitution, the legislative restriction in Article III, section 14, the public initiatives restriction in Article III, section 2. In theory they could be perceived as different restrictions with different meanings, except that in III-2 the constitution makes clear,
“The constitutional limitations as to the scope and subject matter of statutes enacted by the Legislature shall apply to those enacted by the initiative. Initiative measures shall contain only one subject.”
Huh. Right there the constitution says the medical marijuana initiative and NB 574 are to be treated the same. And yet they weren’t.
It seems difficult to escape the conclusion that the state supreme court is pulling a common Samuel Alito move and inventing whimsical resolutions any time one is needed to reach its ideologically determined outcome. You have to wonder if maybe President Joe Biden can do anything about the Nebraska Supreme Court also, too. (Sadly, the answer is no.)
The Hilgers decision is so bizarre and unsound it’s hard to express succinctly, but perhaps two short quotes can help. First, Chief Justice Michael Heavican approvingly quotes an 1890 case explaining that the point of the single subject rule wasn’t to ban broad bills. Rather, the framers opposed so-called “logrolling” of legislation and wanted a regime in which
members were prohibited from joining two or more bills together in order that the friends of the several bills may combine and pass them.
Of course, the abortion ban and the healthcare ban were separate bills until one failed and the other looked doomed, so proponents joined the bills to gather votes from those on the fence about one but supporting the other. Heavican is literally describing exactly what happened in 2023 in order to quote another part of the same 1890 decision that espoused a relatively broad view of single subjects.
It is beyond bonkers that Heavican included this passage in a decision approving LB 574, when he could have shortened the quote to only what he needed, omitting this bit entirely. It’s so unlikely people would have looked up the old decision to find this passage that it makes one wonder if maybe a closeted clerk made sure the longer quote included this specific bit just to sabotage the Chief Justice’s reputation.
It’s enough to make a person wonder if Heavican is too old and dotty for his job, but he has an answer as to why a constitutional provision banning logrolling didn’t ban the logrolling in this case:
Although legislative history may be informative as to the meaning of a bill, our inquiry begins and ends with the bill itself, for it is the bill that is subject to article III, § 14.
You see, as with Donald Trump’s SCOTUS-given immunity, even when the law is broken, the court’s ruling bars any investigation of that lawbreaking. The state constitution may ban a legislative process, but it does so by making requirements of the resulting bill, and therefore you’re not actually allowed to examine the legislative process to see if the legislative process ban applies.
Abracapocus! Hocuscadabra! Heavican will transform the law into any shape he requires to make sure liberals lose!
All this foreshadows a particularly sticky fall, as Protect Our Rights, a group supported by Cavanaugh and Hunt, has gathered the required signatures for an initiative writing abortion rights into the state constitution. That initiative would protect abortion up until viability, which for healthy pregnancies would be at least 21 weeks and possibly longer. However, another group, Protect Women and Children, is working to place a second initiative on the ballot that says it protects the right to abortion during the first trimester, but also explicitly grants the legislature to change that. In other words, it’s no protection at all.
While Secretary Evnen says that if both measures pass, the one with the most votes amends the constitution and the other is discarded. And with the Humpty-Dumpty “the law means what I say it means” state supreme court, what can be sabotaged, will be.
Previously!
Your friendly neighborhood Crip Dyke also writes other perverted stuff!
And so the transgender genocide continues. Banish the young (and if they die in the process all the better) and wait out the old and trans people will magically disappear.
This could have been the first generation to grow up in a world medically advanced enough to not suffer their bodies any more than necessary, but we can't have that because they make some straight people feel icky in their wee wees.
I don't even know how we fix it. I know trans people can't. There aren't enough of us. All we can do is be kicked.
Nebraska needs to stop worrying so much about non-issues like trans kids and women's healthcare and should probably start talking about how the agriculture dollars that fund the state are in serious danger due to climate change.
These pervs can't focus on anything but sexualizing children and women. Fucking gross.
Thank God for Senators Machaela Cavanaugh and Megan Hunt. Heroes.