The Nebraska Supreme Court ruled on Friday that two constitutional amendments, both dealing with the subject of abortion, can appear on state ballots this fall.
Lt. Gov. Joe Kelly spoke about both measures at the Business and Professional People for Life luncheon in Omaha last week. Kelly has spent 35 years in courtrooms as a criminal prosecutor and said that “Prosecution was a great primer for the job that I’m in now.”
Kelly was born in Lexington, where his father and grandfather were editors and owners of the local newspaper. Kelly attended the University of Nebraska-Lincoln, where he met now-Governor Jim Pillen at age 18.
“Though no one ever asks, ‘Did you play football with him, Joe?'” Kelly said. “No, I didn’t.”
Pregnant Patients
Kelly went through the now-finalized text of Initiative Measure 439, the “Protect the Right to Abortion Constitutional Amendment,” and picked apart its sloppy and legally problematic language. It starts with the words, “All persons shall have a fundamental right to abortion.”
“‘All persons’ is a dumb way to say it,” Kelly said. “But they intentionally did so because of the way they see the world. And they may very well create some right that nobody contemplated, wanted, or that makes sense.”
Aside from the gender-neutral language referring to a “pregnant patient,” the use of the word “persons” instead of “woman” would mean that minor children would have a abortion without any notification or involvement from their parents.
Abortion without restrictions or regulation
The most troubling aspect of the initiative is that it guarantees the right to an abortion “without interference from the state or its political subdivisions.”
“What that means is no regulation. It means no regulation whatsoever,” Kelly said. “Can the state say it has to be done in a hospital or a medical facility or whatever? No, because you can’t in any way, according to their words, have any interference from the state or the political subdivision.”
I asked Kelly a blunt question — if the state is Constitutionally barred from any interference with any abortion procedure, wouldn’t this mean that abortions done with a coat hanger in a back alley are on the table?
“I think that’s the implication,” Kelly said. “It really says the state can’t do anything. The state can’t regulate, and it’s the only thing in the world the state can’t regulate. Everything in this building, the state regulates, one way or the other. And the county, and the city, and zoning codes, and everything else. Everything we do and everything we aspect of our life, whether we’re libertarians or not, and whether we like or not, we’re regulated by the government in almost everything.”
But not if this amendment passes. The left used to intend for abortions to be “safe, legal, and rare.” Now, they are no longer concerned about them being either rare or safe — just legal.
Dueling Amendments
Countering the pro-abortion amendment is Initiative Measure 434, the “Protect Women and Children Constitutional Amendment.” It prohibits abortion in the second and third trimesters with exceptions for rape, incest, and for medical emergency. It would not change Nebraska’s current law limiting abortions after 13 weeks.
Because the two ballots are not competing directly for votes, there is a possibility they could both pass with a majority vote.
“Nebraska clearly never had two conflicting petition efforts on the same ballot, and certainly about this issue,” Kelly said. “So if they both pass, what do you do? There’s a statute that says if conflicting ballot measures receive enough votes to pass, the ballot measure that receives the highest number of ‘for’ votes will prevail to the extent of the conflict.”
Strangely enough, those who want abortion in Nebraska to remain both legal and safe may have to vote for the amendment that offers restrictions on abortion — rather than the one that would make a wire coat hanger a Constitutionally-protected medical device.
