Nebraska Supreme Court upholds law banning transgender care for youth and abortions

The Nebraska Supreme Court on Friday affirmed the state’s law banning gender-affirming care for minors and abortion after 12 weeks of pregnancy, ruling the two issues were legally allowed to be combined.

The abortion ban was added as an amendment to Legislative Bill 574, which would restrict access to gender-affirming medical care for transgender young people, in the final days of Nebraska’s legislative session last year. 

Planned Parenthood of the Heartland, represented by the American Civil Liberties Union (ACLU), challenged the law as a violation of a constitutional amendment requiring bills to stick to a single subject.  

But the state’s highest court said even though abortion and gender-affirming care are “distinct types of medical care,” the law itself broadly encompasses the “regulation of permissible medical care.”

In a scathing partial dissent, Justice Lindsey Miller-Lerman said she did not believe abortion and gender-affirming care comprise “one subject,” and she said the majority gave deference to the Legislature “at the expense of the Constitution.”

“Unrelated provisions that happen to do similar things at some level of generality do not dispel the criticism that the bill contains more than one subject,” Miller-Lerman wrote, adding it is not the role of the court “to scour the bill in hopes of finding one subject that could conceivably explain inclusion of very different acts in one bill.”

Last year, conservative lawmakers in the nonpartisan Nebraska Legislature originally proposed two bills. One would have banned abortion after about six weeks of pregnancy, and the other would have restricted gender-affirming treatment for minors. 

But the six-week ban failed to overcome the filibuster by one vote, so the Legislature added the 12-week abortion ban as an amendment to the transgender ban.

A district judge dismissed the lawsuit last August, and the ACLU appealed.

Ruth Richardson, president and CEO of Planned Parenthood North Central States, said clinics in the state “will proudly continue providing abortion care up to 12 weeks and we remain dedicated to helping our patients in Nebraska access the care they so desperately need, even if it means having to travel out of state.” 

But voters could have the final say. Two competing questions on the subject are likely to appear on the November ballot: One would add a right to abortion to the state constitution, while the other would enshrine the 12-week ban.