Court filing calls Nebraska attorney general’s response to abortion/gender care lawsuit ‘mistaken and incomplete’

LINCOLN — Lawyers for the Planned Parenthood of the Heartland urged a Lancaster County District Court judge Wednesday to temporarily block new restrictions on abortion and gender-affirming care as soon as Thursday.

The Wednesday filing came one day after Planned Parenthood filed to block the implementation of Legislative Bill 574, which contains an approximately 10-week abortion ban as well as restrictions on gender-affirming care for minors. 

Attorneys from the ACLU of Nebraska and its national foundation, who are representing the plaintiffs, argue that LB 574 contains two distinct subjects, which would violate the Nebraska Constitution’s requirement that legislative actions contain only a single subject.

Dr. Sarah Traxler, an OB-GYN with Planned Parenthood Heartland, is also a plaintiff in the lawsuit.

“The very point of LB 574 — or more accurately, the very point of one-half of LB 574 — was to impose immediate and severe limitations on the abortions that Planned Parenthood, Dr. Traxler, and others could lawfully provide to their patients, under threat of severe penalties for any violation,” the Wednesday response states. “There is no denying that this is what LB 574 does.”

The abortion ban, timed at 12 weeks from a woman’s last menstrual period, went into effect May 23. The gender care restrictions take effect Oct. 1.

Attorney General Mike Hilgers filed a response Tuesday, asking the district court to reject Planned Parenthood’s request, which would make the court “the first ever” to find that a Nebraska legislative act violated the State Constitution based on the single subject requirement found in Article III, Section 14 of the Nebraska Constitution.

However, the identical single subject provision was previously found in Article III, Section 11 of the Constitution. The plaintiffs’ attorneys pointed to a court ruling in Weis v. Ashley, an 1899 case, that found a legislative act violated the single subject rule under Section 11.

Hilgers and three assistant attorneys general said a temporary restraining order involves “extraordinary powers” and thus must be exercised with the “greatest of caution.”

They said plaintiffs had also “failed to demonstrate that they can meet any of the criteria required for the Court to exercise the extraordinary remedy of entering a temporary restraining order, and most notably to find a likelihood of success on the merits on a violation of the single subject rule applicable to the Legislature — where no Nebraska case has ever done so before.”

The attorneys for Planned Parenthood said Wednesday in their filing that the Attorney General’s Office response “nowhere mounts even a superficial argument that Plaintiffs are wrong on the merits.” They argue the attorney general did not mention the text of the single subject rule, LB 574, or justify that it is indeed one subject.

“Instead, the government urges this Court to go along to get along,” the plaintiffs write. “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 ACLU also criticized the attorney general’s response for being “mistaken and incomplete” because it ignores a 1990 opinion in which the Attorney General’s Office said a legislative proposal would have likely violated the single subject rule.

“Because the courts have given such a liberal interpretation to this constitutional provision in the past, we cannot say for certain whether the courts would declare the amendment in question violative of the State Constitution,” the 1990 opinion states.

A temporary restraining order requires the plaintiffs to show a probability of success on the merits of the lawsuit and that there is immediate and irreparable harm.

Editor’s note: This article was updated to include information about an 1899 court ruling involving a “single subject” provision of the Nebraska Constitution.