Could ‘single subject rule’ trip up merger of abortion and transgender health care bills?

Editor’s note: this story has been updated to reflect when LB 574 will be debated.

LINCOLN — A blockbuster pairing of two controversial bills in the waning days of the 2023 state legislative session has state senators and advocates buzzing.

But could a state constitutional requirement that bills contain only a “single subject” trip up the merging of a 12-week ban on abortions into a proposal to ban minors from having gender-affirming surgeries?

That question, posed to state senators, legal scholars, a veteran lobbyist and a former Clerk of the Legislature brought a resounding response: “maybe.”

No one can say

“Nobody can say with any degree of certainty,” said veteran lobbyist Walt Radcliffe, who is also an attorney.

Anthony Schutz, of the University of Nebraska College of Law, said the question will come down to, “Is there something that ties these two things together?”

“That’s the thing I have a hard time with,” Schutz said.

Richard Witmer, a political science professor at Creighton University, added, as did others, that a final decision might come down to members of a State Supreme Court appointed mostly by Republican governors who oppose abortion rights.

“If I am a legislator and I anticipate a legal challenge, I would do everything I could to make the argument that there is a single subject that addresses two topics of interest to the Legislature,” Witmer said.

Shock waves hit on Monday when it was announced that opponents of abortion rights were attempting to resurrect the once-dead issue by proposing a new, 12-week ban on abortion — rather than a six-week, “heartbeat” proposal defeated two weeks ago.

The 12-week ban would be amended into Legislative Bill 574, an equally controversial measure sitting on final-round debate that would ban minors from having gender-affirming procedures.

The pairing, portrayed as a compromise to attract more support for both measures, included a narrowing of the original LB 574 to ban only gender-altering surgeries.

The new proposal is scheduled for debate on Tuesday. Its first hurdle likely will be determining whether the two proposals are “germane,” or appropriately paired, a decision that would be made by the presiding officer of the Legislature, who is usually Lt. Gov. Joe Kelly.

State Sen. Kathleen Kauth of Omaha, the main sponsor of LB 574, said there’s no doubt the two measures are germane, since both deal with allowing lives to mature.

“The title of my bill is ‘Let Them Grow.’ That’s pretty germane,” Kauth said.

But deep in the State Constitution is a rarely discussed and largely untested clause that states: “No bill shall contain more than one subject, and the subject shall be clearly expressed in the title.”

‘Single subject rule’ largely untested

That “single subject rule” could become a key issue later, in an expected legal challenge to the amended LB 574, if, as many expect, it is passed and signed into law by Gov. Jim Pillen. His office was keenly involved in crafting the new proposal.

Some history: Schutz said the single subject clause grew out of distrust of government back in pioneer days, when state governments were being formed.

The goal, Schutz said, was to require a clear indication of the subject of a piece of legislation, as well as preventing “log rolling,” the process of trading favors between lawmakers by adding provisions they support to a bill to gain their support for it.

‘Christmas trees’ proliferate

Schutz, in several tweets this year, has raised questions about the single subject rule when it comes to the proliferation of “Christmas tree” bills in the Nebraska Legislature. That refers to measures that combine up to 20 bills or more into a single proposal — like adding ornaments to a Christmas tree.

Christmas tree bills are a means to get a lot of things passed at once. That has became important this year because debate has been severely limited by an endless string of filibusters, mounted by Omaha Sens. Machaela Cavanaugh and Megan Hunt in protest of Kauth’s bill.

But, Schutz asked, can a bill with 20-plus proposals really be a “single subject”? And can one description of a Christmas tree bill adequately describe all of it?

In addition, he asked, can two once-separate proposals — in this case one banning minors from obtaining certain gender-affirming care and the other restricting abortion rights — now be classified as a single subject?

A big difference, those interviewed said, between a 20-bill Christmas tree on insurance or education issues and the two-bill marriage of abortion restrictions and restrictions on transgender health care is that the latter is more likely to be challenged in court.

There have been some pretty strict court rulings on single subject when it comes to initiative petition drives — mostly notably tossing off measures dealing with legalizing medical marijuana from the 2020 ballot. But, Schutz said, there have been fewer court challenges of  legislation over the single subject issue.

In the court rulings he has found, he said, courts tend to focus on the title of a bill and whether it accurately describes what’s in it.

Both deal with reproductive health?

The title can’t be too broad, Schutz said. Saying both measures deal with “medical care” or “protecting children” might be too general, he said.

Witmer, the Creighton professor, agreed. Describing the merged bills as focusing on “reproductive health care” might be enough, he said, but it’s hard to tell.

State Sen. Ben Hansen of Blair, who introduced the amendment Monday melding the two measures, said the single subject issue was considered in crafting the compromise.

The abortion portion of his amendment is called the “Preborn Child Protection Act,” which bears some resemblance to the “Let Them Grow Act.”

Hansen said he sees three ways the two bills deal with a single subject: Both deal with the Department of Health and Human Services, both concern licensure in some way, and both deal with safety and welfare.

“It checks a lot of the boxes,” the senator said.

Everyone interviewed said that courts tend to give legislatures some leeway in interpreting whether a bill meets the single subject rule. Some said federal courts might give less leeway.

Courts tend to ‘duck and weave’

“When that kind of stuff goes to a court, they tend to duck and weave,” said former Clerk of the Legislature Patrick O’Donnell.

He said he could recall only one single subject lawsuit concerning a bill, and that was a federal case back in the 1960s that was ultimately decided on another issue.

It used to be, O’Donnell said, that when an issue was killed by a filibuster, it didn’t come up again that session. But that changed last year, he said, when a tax relief package failed to advance twice before it finally advanced.

It should be noted that this year’s speaker of the Legislature, Sen. John Arch, consistently said that the heartbeat bill, LB 626, was dead for the year after a cloture vote — to end a filibuster— failed. But Arch did not say that another abortion measure wouldn’t be considered.

Lincoln State Sen. Danielle Conrad said fellow supporters of abortion rights should not pin their hopes on blocking the latest abortion proposal via a court ruling on an issue the single subject rule.

“The best way to stop a radical abortion ban is to stop a radical abortion — so we need 17 senators to vote against this bill,” she said, referring to the number of votes needed to sustain a filibuster.

Nebraska Examiner intern Zach Wendling contributed to this report.