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A Closer Look At How the Nevada Abortion Amendment Failed the Single Subject Test

Unpacking the Court's Decision on Nevada's Pro-Abortion Reproductive Rights Proposal

On November 21, 2023, a circuit court in Reno, Nevada invalidated Nevada’s version of the Reproductive Freedom Amendment because it violated the state’s single subject rule.

The Nevada amendment is similar to amendments passed recently in Michigan, Vermont, California and most recently, Ohio.

The language was proposed by Lindsay Harmon, the Executive Director of Planned Parenthood Votes Nevada. In order to make it on the ballot, 10% of the voters in the preceding general election are required to sign a petition. In the case of amendments aiming to be on the 2024 ballot that is 102,362 registered voters. Because groups are allowed to pay petition circulators to collect signatures, the signature requirement is not a difficult challenge for well funded groups such as Planned Parenthood.

However, the district court opinion has halted the process and will now force abortion supporters to appeal to the Nevada Supreme Court to reverse the lower court injunction if they wish to proceed to collect signatures.

The Text of the Nevada Amendment

THE PEOPLE OF THE STATE OF NEV ADA DO ENACT AS FOLLOWS
1. Section 1. That a new section, designated Section 25, be added to Article 1 of the Nevada Constitution to
read as follows:
1. Every individual has a fundamental right to reproductive freedom, which entails the right to make and effectuate decisions about all matters relating to pregnancy, including, without limitation, prenatal care, childbirth, postpartum care, birth control, vasectomy, tubal ligation, abortion, abortion care, management of a miscarriage and infertility care. The right of an individual to reproductive freedom shall not be denied, burdened or infringed upon unless justified by a compelling State interest that is achieved by the least restrictive means available.
2. Notwithstanding the provisions of subsection 1, the State may regulate the provision of abortion care after fetal viability, provided that in no circumstance may the State prohibit an abortion that, in the professional judgment of an attending provider of health care, is medically indicated to protect the life or physical or mental health of the pregnant individual.
3. The State shall not penalize, prosecute or otherwise take adverse action against an individual based on the actual, potential, perceived or alleged outcome of the pregnancy of the individual, including, without limitation, a miscarriage, stillbirth or abortion.
4. The State shall not penalize, prosecute or otherwise take adverse action against a provider of health care, who is licensed by the State, for acting consistent with the applicable scope of practice and standard of care for performing an abortion upon, providing abortion care to, or providing reproductive care services to an individual who has granted their voluntary consent.
5. The State shall not penalize, prosecute or otherwise take adverse action against any individual or entity for aiding or assisting another individual in exercising the right of the individual to reproductive freedom with the volunta,y consent of the individual.
6. Nothing herein narrows or limits the rights to equality and equal protection.
7. As used in this section:
(a) "Compelling state interest" means an interest which is limited exclusively to the State's interest in protecting the health of an individual who is seeking reproductive health care that is consistent with accepted clinical standards of practice.
(b) "Fetal viability" means the point in a pregnancy when, in the professional judgment of an attending provider of health care and based on the particular facts of the case, there is a significant likelihood of the sustained survival of the fetus outside the uterus without the application of extraordinary medical measures. 
Nevada Reproductive Freedom Amendment

Judge James T. Russell of the First Judicial District Court in Carson City ruled that the proposed constitutional amendment violated the states single subject rule, is misleading and includes an unfunded mandate that violates the Nevada constitution.

Single Subject Rule

Most of the 18 states that allow citizens to collect signatures to propose an amendment to the constitution require the amendment to be limited to only one subject. The reason for this rule is fairly straight forward: if a proposed amendment includes several unrelated subjects, the voter will be confused about the subject he is voting on and may also be coopted into voting in favor of one matter based on support of another more popular matter (a practice referred to as logrolling).

Here is how the Nevada courts have described the single subject rule in the past:

"The single-subject requirement helps both in promoting informed decisions and in preventing the enactment of unpopular provisions by attaching then to more attractive proposals or concealing them in lengthy, complex initiatives (ie., logrolling).  Logrolling occurs when two or more completely separate provisions are combined in a petition…"
Opinion of Judge Russell in Coalition for Parents and Children v. Nevadans for Reproductive Freedom 

At the outset of his opinion, Judge Russell analyzed the main enumerated protections in the text of the amendment to determine whether the different subjects are so related to each other and the main overarching purpose of the amendment as to constitute a single subject.

In ascertaining whether a petition violates the single-subject requirement, “the court must fist determine the initiative's purpose or subject and then determine if each provision is functionally related and germane to each other and the iniatiative’s purpose or subject.
Opinion of Judge Russell in Coalition for Parents and Children v. Nevadans for Reproductive Freedom

In his ruling, Judge Russell determined that the petition’s purported subject matter of reproductive rights was overly broad, encompassing an array of topics from prenatal and postpartum care to vasectomy and abortion, without clear connections between them. The court, argued that this approach, known as logrolling, muddles distinct issues under the vague banner of “reproductive freedom,” raising concerns about the lack of specificity and functional relationships among these varied health topics.

This Court agrees with Plaintiffs that the Petition embraces a multitude of subjects that amount to logrolling. Subsection 1, alone, embraces the following subjects: prenatal care, childbirth, postpartum care, birth control, vasectomy, tubal ligation, abortion, abortion care, management of a miscarriage, and infertility care. Subsection 1 purportedly creates a “fundamental right to reproductive freedom,” but there is no limiting language in that section to circumscribe that right such that the section embraces a single and articulable subject. For instance, it is unclear how a vasectomy relates to infertility care or postpartum care. Likewise, it is unclear how postpartum care s related to abortions or birth control. Thus, it is improper to characterize these broad categories as a “single subject” because there is no explanation as to how these provisions are functionally related. 
Opinion of Judge Russell in Coalition for Parents and Children v. Nevadans for Reproductive Freedom

Turning to consideration of Sections 2-5 of the initiative’s text, the court found that the sections banning the state from regulating abortion did not “functionally relate to postpartum care, birth control, vasectomy, tubal ligation, and/or infertility care.”

Summarizing its single subject analysis, the court concluded that “these provisions constitute logrolling because they regulate separate conduct but are placed in the same Petition.”

Misleading

Nevada law prohibits ballot initiatives to include misleading statements in its 200 word description of effect.

A description of effect ‘must be a straightforward, succinct, and non-argumentative summary of what the initiative is designed to achieve and how it intends to reach those goals. Also, a description of effect cannot be “deceptive or misleading”.
Opinion of Judge Russell in Coalition for Parents and Children v. Nevadans for Reproductive Freedo

The court concluded that the broad language of the description of effect of the amendment was misleading because it failed to state that the amendment would have prevented the state from investigating stillbirths or miscarriages even in cases unrelated to abortion. Furthermore, the description of effect failed to mention that by using the broad term “provider of health care” the amendment would be allowing a large cadre of non-physicians to exercise medical decision making power as to the practice of late term abortion. In addition, the court found the use of the term “equality”, which is not defined in Nevada law to be vague to the point of being misleading to the potential voter.

Unfunded Mandate

In Nevada, as in several other states, ballot initiatives must have a fiscal impact statement. But in Nevada, initiatives are also prohibited from requiring expenditures unless it also establishes a tax sufficient to cover the new expense.

If no board is created, as Plaintiff suggests, then the plain meaning of the Petiton would be rendered meaningless because there would be no legal catty to ascertain whether a provider of healthcare acted within the standard of care. This is an unfunded mandate.

The court found that the amendment’s protection of abortionists from prosecution so long as they acted within the “standard of care” would necessarily require a medical review board, which in turn would require a tax sufficient to cover such a new expense. Because the amendment made no such provision, the court found that the language created an unfunded mandate and was thus in violation of the Nevada constitution.

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