June, 2022
Lincoln — That didn't take long. The Supreme Court issued its Dobbs decision on June 24th and three days later the Nebraska's attorney general argued in the Eighth Circuit federal appeals court that Nebraska voters have no right to vote in state initiatives under federal law, because "the federal constitution has nothing to say about initiatives." This, despite the Dobbs proviso that the decision applies only to abortion. Here is an excerpt from the Nebraska appeal in the case of Eggers v. Evnen:
[T]he district court incorrectly held that the federally protected fundamental right to vote attaches to all state processes for qualifying initiatives. It did so even though the federal constitution says nothing about initiatives and the Supreme Court "has long been 'reluctant' to recognize rights that are not mentioned in the Constitution." Dobbs v. Jackson, Jun. 24, 2022.
Which adds to the list of rights and freedoms already under attack in Nebraska by our governor, as described in a previous post a few days ago. Which also suggests that Nebraska's attorney general will be joining with other attorneys general around the country to apply Dobbs to a wide range of existing rights, not just abortion rights.
The extent to which Dobbs will restrict reproductive choice — the more overt target — depends on if and when the governor calls the unicameral legislature into session. If he does, state senators should be looking carefully at the language of Dobbs to determine what can be considered constitutional restrictions under a so-called "rational-basis" standard.
Although some have suggested that this is an extremely low bar for a legislature, the actual language of Dobbs is not so clear. A federal judge in the near future could conclude what seems rather obvious, that the Dobbs court laid out its own rational-basis test in its examples of rationality, which arguably look more to balancing the interests of the mother and the state than simply making a list of a state's interest in preventing abortions. If a state chooses not to recognize interests such as "the protection of maternal health and safety...and the prevention of discrimination on the basis of race, sex, or disability," the legislation may fail a federal court's rational-basis test. Moreover, by citing the Glucksberg case, the Dobbs court adds more context to the value of the mother's life and health, not just that of the fetus. From Dobbs:
A law regulating abortion, like other health and welfare laws, is entitled to a “strong presumption of validity.” Heller v. Doe, 509 U. S. 312, 319 (1993). It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. Id., at 320; FCC v. Beach Communications, Inc., 508 U. S. 78 DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION Opinion of the Court 307, 313 (1993); New Orleans v. Dukes, 427 U. S. 297, 303 (1976) (per curiam); Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 491 (1955). These legitimate interests include respect for and preservation of prenatal life at all stages of development, Gonzales, 550 U. S., at 157–158; the protection of maternal health and safety; the elimination of particularly gruesome or barbaric medical procedures; the preservation of the integrity of the medical profession; the mitigation of fetal pain; and the prevention of discrimination on the basis of race, sex, or disability. See id., at 156– 157; Roe, 410 U. S., at 150; cf. Glucksberg, 521 U. S., at 728– 731 (identifying similar interests). — Dobbs v. Jackson [emphasis added]
From Glucksberg:
The risk of harm is greatest for the many individuals in our society whose autonomy and well-being are already compromised by poverty, lack of access to good medical care, advanced age, or membership in a stigmatized social group. ... The State's interest here goes beyond protecting the vulnerable from coercion; it extends to ... prejudice, negative and inaccurate stereotypes, and "societal indifference". — Glucksberg v. Washington [emphasis added]
A future federal district court could well fashion a rational-basis test from the Dobbs and Glucksberg list to include a demonstrated state fiscal concern for "maternal health and safety" proportionate to increases in full term pregnancies — no relying on federal taxpayers or private help. A state escrow fund could be required to meet the test, as it would be irrational not to recognize the fiscal impact of the legislation. Likewise, the test could include access to abortion early in pregnancy, to eliminate "gruesome medical procedures" later in pregnancy in cases of fatal fetus defects, which would also satisfy the Dobbs interest of "mitigation of fetal pain."
Another part of the test could show due deference to the "integrity of the medical profession" in making judgments as to when abortion is appropriate, to comply with the totality of interests set out in the Dobbs and Glucksberg cases. Medical professionals must not be put in a position of having to advise a mother, in case of a pregnancy that will soon endanger her life, to wait for medical care until her life is actually in danger. Waiting would require medical professionals to violate their oaths and their integrity. Accordingly, it should not be surprising for a judge to require a state to provide appropriate abortion access to its population, citing Dobbs itself as the authority for the requirement.
And then there is Glucksberg's admonition, that the state's interest "goes beyond protecting the vulnerable from coercion." Indeed it does. A rational-basis test must exclude coercion of the pregnant, and attention to them to preclude "societal indifference."
The Nebraska legislature should anticipate rational-basis tests in passing any legislation prompted by the Dobbs decision, and rise to the occasion to write legislation consistent with the enunciated standards of Dobbs. In so doing, senators would be true to the jurisprudence of Nebraska's greatest jurist, Roscoe Pound. (See previous post.)
As for Nebraska's constitutional officers, they should abide by this provision in Dobbs: "The Court emphasizes that this decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion."
Please, no more attempts to erode even more Nebraskans' rights and freedoms.
