Judge takes under advisement a request to block enforcement of new Nebraska abortion ban

Editor’s note: This article has been updated to include additional arguments made in Wednesday’s hearing.

LINCOLN — Nebraska’s new law that bans abortion at 12 weeks gestational age remains in effect after a judge on Wednesday said she would take under advisement a request to block its enforcement.

Lancaster County District Judge Lori Maret said she would issue a written ruling later on a request by Planned Parenthood of the Heartland to place a preliminary injunction on Legislative Bill 574 due to its detrimental impact on abortion providers and medical care.

Maret heard about an hour of oral arguments from Planned Parenthood attorneys and a lawyer from the Nebraska Attorney General’s Office, which has asked that the lawsuit filed by the abortion rights group be dismissed and the injunction request rejected.

‘One of gravest violations’

Attorneys representing Planned Parenthood and Dr. Sarah Traxler, the medical director for the organization, argued Wednesday that LB 574 violates the Nebraska Constitution’s restriction that legislation contain only a single subject.

“This is probably one of the gravest violations of the single subject rule that the court has seen in a very long time,” argued Matthew Segal, a Boston-based attorney with the ACLU.

His clients have asked for a temporary injunction blocking the implementation of the abortion ban, which went into effect when Gov. Jim Pillen signed it into law May 22.  (The portion that bans gender-affirming care doesn’t go into effect until October.)

Jane Seu, an attorney with the ACLU of Nebraska, argued Wednesday that Planned Parenthood physicians faced “ongoing, severe hardship” because the new law restricted their ability to provide the best “standard of care.”

It also has forced those seeking an abortion to go out of state, “against their will,” she said.

Segal, the ACLU attorney, argued that anyone looking at LB 574 would conclude that it’s a “jamming together” of two very different subjects: abortion rights and gender-affirming procedures.

It was done, he added, to make sure both measures passed, raising concerns about “log rolling” — the amending of subjects into a bill to increase support for it.

Would be ‘impossible’ to violate rule

Segal argued that under the state’s arguments, it would impossible to violate the single subject rule.

In opposing the temporary injunction request and seeking to have the lawsuit dismissed, the Nebraska Attorney General’s Office has maintained that LB 574 “firmly withstands” questions about its constitutionality because the two matters both deal with public health and welfare.

Assistant Attorney General Erik Fern, who defended the new law, questioned whether Planned Parenthood and doctors who provide abortions had the right to bring a lawsuit, arguing that physicians have “no vested right” to practice medicine as they please.

He added that the harm to the unborn and minor children that the bill tries to protect outweighs any “economic” harm done to Planned Parenthood.

‘Strong presumption’ that laws are legal

In a legal brief filed Tuesday, Fern added that it’s irrelevant how LB 574 got passed and that the court needs only to consider “the end result.”

On Wednesday, Fern added that there’s a “strong presumption” that any legislation passed by the State Legislature is both “legal and enforceable” and for the judge to interject herself into the case of LB 547 goes “into the internal process of how the Nebraska Unicameral has decided it will conduct its business.”

Segal, citing past court rulings, said that a bill must contain subjects that are “naturally connected and incidental to each other.”

“Even using the most lenient test, they are not incidental to each other,” Segal said.

Debate over LB 574 dominated the 2023 session of the Nebraska Legislature, prompting two Omaha state senators, Machaela Cavanaugh and Megan Hunt, to filibuster nearly every bill up for floor debate.

They argued that the ban on gender-affirming care was hateful and that government should stay out of sensitive and personal family decisions about ending a pregnancy or seeking care for their children.

Advocates for LB 574, led by Sens. Joni Albrecht of Thurston and Kathleen Kauth of Omaha, said that the measure is about protecting children and preserving life.

After a proposed six-week abortion ban failed to advance in the Legislature, Ralston Sen. Merv Riepe proposed a compromise measure, the 12-week ban.

That proposal was merged into LB 574, which banned gender-affirming treatments for minors, in an effort to get both measures passed.