Photo / Aaron Sanderford, Nebraska Examiner
Interim ACLU Nebraska Executive Director Mindy Rush Chipman said women seeking abortions aren’t the only people being harmed by LB 574. ACLU Nebraska filed suit with Planned Parenthood of the Heartland against the bill.
Paul Hammel
Nebraska Examiner
The Nebraska Attorney General’s Office says an attempt by Planned Parenthood and others to block a new state law on abortion and transgender rights is an attempt “to tell the Nebraska Legislature how to do its job.”
In a 27-page legal brief filed Thursday night, the Attorney General’s Office says the lawsuit seeking to block Legislative Bill 574 would “undermine” years of practices in the Legislature and should be dismissed.
Planned Parenthood of the Heartland and the American Civil Liberties Union filed suit shortly after LB 574 was signed into law, maintaining that it was unconstitutional because it violated the state’s “single subject” requirement for legislation.
The Nebraska Constitution states that “no bill shall contain more than one subject, and the subject shall be clearly expressed in the title.” Legal scholars, though, say the requirement is largely untested in court.
A Lincoln judge has scheduled a court hearing at 10 a.m. Monday, via Zoom, to hear arguments about whether the lawsuit should be dismissed or be allowed to proceed.
In a controversial, 11th-hour strategic move, backers of restrictions on abortion and transgender rights amended the two controversial measures into one bill — a ban on gender-affirming surgeries for minors along with a ban on abortion after 12 weeks of gestation, essentially a 10-week ban.
Merging brought bill over finish line
The merging of the two proposals into LB 574 was portrayed by proponents as needed to obtain the 33 votes necessary to fend off a 12-week-long filibuster and get both measures passed.
The Legislature ended the filibuster with the minimum 33 votes required in the 49-seat Unicameral as a throng of protesters, who overflowed the Capitol Rotunda, chanted “Trans People Matter” and other slogans.
The spectator galleries of the legislative chambers had to be cleared at one point. Six people were arrested in the tumult.
One senator, Julie Slama of Dunbar, left a hospital bed to provide the decisive vote on LB 574.
The Attorney General’s Office, in its brief Thursday night, offered four reasons why the lawsuit should be thrown out and why a request should be denied to temporarily block implementation of LB 574:
- The plaintiffs, which include a physician and a health clinic, have not shown that they would be harmed by the new law and are advancing “political disagreements” that do not rise to “injuries in fact.”
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- The single-subject rule is a “liberal standard.” The AG’s brief cites a 1967 ruling by the Nebraska Supreme Court in a lawsuit over a tax law: “If an act has but one general object, no matter how broad that object may be, and contains no matter not germane thereto . . . it does not violate [the single-subject rule].” In addition, the state’s lawyers said that provisions of LB 574 both relate to “health and welfare” and prescribe duties for the state’s Cchief medical officer.
- The lawsuit is barred by “sovereign immunity,” the concept that the state cannot be sued, a common law doctrine based on the idea that “the king” cannot face a lawsuit.
- Plaintiffs are asking the court to litigate the legislative process, not whether the contents of LB 574 violated the single-subject rule.
If the court took up that issue, the AG’s brief said, it would “result in an unprecedented upheaval of Nebraska’s legislative and judicial branches,” casting doubt on “hundreds of Nebraska laws.”
“Plaintiffs’ grievance is to the legislative process, not to the bill,” the brief stated. “Plaintiffs have suffered no cognizable injury, lack standing, and, ultimately, fail to meet the high bar to declare L.B. 574 unconstitutional.”
Officials with Planned Parenthood and the ACLU of Nebraska did not immediately respond to a request for comment Friday afternoon.
But previously, attorneys with the two groups have dismissed the Attorney General’s arguments, saying they amount to asking the court to “go along to get along.”
“It insists that this Court should decline to issue a (restraining order) not because Plaintiffs are wrong to allege a violation by the Legislature of the single-subject rule, but because ‘no Nebraska case has ever’ found such a violation,” the plaintiffs’ attorneys maintain.
Rule ‘prevents logrolling’
The ACLU criticized the AG for ignoring a 1990 opinion from then-Attorney General Robert Spire that stated a legislative proposal would have likely violated the single subject rule.
The lawsuit argues that the single-subject rule serves “important purposes.”
“It prevents logrolling, whereby measures that cannot gain enactment as individual bills are forced together into a compound bill that secures passage,” Planned Parenthood and the ACLU maintain.
