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Nebraska attorney general asks court to reject injunction on abortion, gender care restrictions


Nebraska attorney general asks court to reject injunction on abortion, gender care restrictions

May 31, 2023 | 8:57 pm ET
By Zach Wendling
Nebraska attorney general asks court to reject injunction on abortion, gender care restrictions
Attorney General Mike Hilgers. (Zach Wendling/Nebraska News Service)

LINCOLN — Nebraska Attorney General Mike Hilgers has asked a Nebraska court to reject a request to temporarily block enforcement of new restrictions on abortion and gender-affirming care for minors.

The Tuesday evening filing is in response to a lawsuit from the ACLU of Nebraska and Planned Parenthood of the Heartland, filed earlier Tuesday, arguing that a law combining a 10-week abortion ban and restrictions on gender-affirming care minors covers two distinct subjects.

The lawsuit argues the combination in Legislative Bill 574, approved by the Legislature on a 33-15 vote and signed into law by Gov. Jim Pillen, violates the Nebraska Constitution.

Hilgers, along with Assistant Attorneys General Christopher Felts, Jennifer Huxoll and Erik Fern, write that a Lancaster County District Court is being asked to “be the first ever” to find that an act of the Legislature violated the state’s 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, Pillen, Dannette Smith, Charity Menefee and Timothy Tesmer are named in the lawsuit. Smith is the chief executive officer of the Nebraska Department of Health and Human Services. Menefee is the director of DHHS, and Tesmer is the state’s newly confirmed chief medical officer.

Nebraska College of Law professor Anthony Schutz told the Nebraska Examiner this month that the single subject rule grew out of distrust of government in the pioneer days. It was also a way to prevent “log rolling,” or trading favors in adding certain provisions to bills to garner support.

The defendants state that a temporary restraining order involves “extraordinary powers” and must be exercised with the “greatest of caution.”

For a temporary restraining order, the ACLU and Planned Parenthood would need to show a probability of succeeding on the merits of their lawsuit and that there is immediate and irreparable harm and a need to maintain the status quo. This would be done only until a court can hear both parties on the propriety of a temporary injunction, according to the defendants.

“Plaintiffs have 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 defendants’ response reads.

On Tuesday, abortion-rights advocates said at least nine women, who had scheduled care prior to the abortion ban going into effect, left the state in the past week to seek abortions.

“Nebraska has been held up across the country for its Unicameral Legislature and its clear and reliable processes for passing laws,” Andi Curry Grubb, executive director of Planned Parenthood Advocates of Nebraska, said Tuesday. “It has helped protect our citizens from harmful legislation, but politicians who want to ban abortion stepped outside of these guardrails.”

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

The ACLU of Nebraska filed a response to the attorney general’s objection Wednesday afternoon, which will be made public Thursday.

“We continue to advocate for injunctive relief to mitigate the harm that LB 574 is already causing,” Sam Petto, a spokesman for ACLU Nebraska, said Wednesday night.

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