Does a bill that limits gender-altering procedures and abortions “contain more than one subject”? Earlier this year, the Nebraska Supreme Court said no.[1] But its opinion left open how courts should decide similar questions in the future.

In 2023, Nebraska legislators introduced Legislative Bill 574 to “prohibit the performance of gender altering procedures for individuals under the age of 19.”[2] In the same session, the legislature considered Legislative Bill 626, which would have protected preborn life after a fetal heartbeat can be detected (at about six weeks of pregnancy).[3] L.B. 626 failed to earn enough votes and stalled, but L.B. 574 advanced. L.B. 574 was then amended to protect preborn life after 12 weeks of pregnancy.[4] The amended L.B. 574 was passed by the legislature, was approved by the governor, and became law.[5]

Soon after, Planned Parenthood of the Heartland sued to enjoin L.B. 574’s enforcement.[6] Planned Parenthood claimed the bill violated the Nebraska Constitution’s single-subject provision, article III, § 14, which declares, “No bill shall contain more than one subject.”[7] State officials countered that this claim was not justiciable.[8] The Nebraska district court held that the issue was justiciable, but that L.B. 574 did not violate the single-subject rule.[9]

In July 2024, in an opinion written by Chief Justice Michael Heavican, the Nebraska Supreme Court affirmed.[10] It first addressed justiciability. The court highlighted the importance of the single-subject rule, which was meant to guard against “corrupt or improvident legislation,” to “simplify legislation,” and “to place every bill upon its true merits.”[11] The court also affirmed the Nebraska Constitution’s supremacy over conflicting state legislation.[12] And it noted that the judicial branch has long exercised the “power and duty” to determine the constitutionality of statutes.[13] It therefore held that “a bill that contains more than one subject, but is nevertheless passed into law by the Legislature, is void,” and that it was the “court’s responsibility, no matter how delicate the task, to make that determination.”[14]

The court then turned to the merits. It began by noting that single-subject challenges are “rare” and that the court is guided by “respect for the Legislature” as a policymaker and “coequal branch of government.”[15] It emphasized the high bar to find legislation void: courts will “never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt.”[16] And it noted the low bar that the single-subject rule sets: courts give article III, § 14 “a most liberal”—rather than strict—construction guided by the purposes of the rule so as not to “embarrass legislation.”[17] The court also distinguished article III, § 14’s single-subject requirement for legislative bills from article III, § 2’s single-subject requirement for voter ballot initiatives.[18]

The court then considered the parties’ competing proposed tests to determine “whether the contents of the bill comprise a single subject.”[19] The state officials had argued that the court should first identify the subject chosen by the legislature from the bill’s title and then analyze whether all of the bill’s provisions were germane to that subject.[20] Planned Parenthood had argued the court should identify the bill’s “main purpose” by examining the substance of the bill and then analyze whether the bill’s provisions were “naturally connected with and incidental to that main purpose.”[21]

Competing lines of authority supported both sides’ approaches.[22] But the court ultimately found it unnecessary to resolve the tension: “Regardless of where our analysis begins in this case,” the court concluded, “Planned Parenthood’s challenge to L.B. 574 fails.”[23] Under the state’s proposed approach, the legislature identified “public health and welfare” in the title as the bill’s subject—a subject the court deemed not “too broad.”[24] Both abortion and gender-altering procedures are medical procedures, the court found, and their regulation is germane to public health and welfare.[25]

Under Planned Parenthood’s approach, the result was the same. Looking at the substance of L.B. 574, the court found that it imposes conditions on certain medical procedures and designates violations as unprofessional conduct for healthcare providers.[26] This suggests the bill’s “main purpose” is to “regulate the medical care that may be provided within the state,” and each provision is “naturally connected with, and incidental to, that main purpose.”[27]

The court also rejected Planned Parenthood’s reliance on the legislative history of L.B. 574 and L.B. 626, holding that the “focus” is on whether the bill itself covers one subject.[28] “Our inquiry begins and ends with the bill itself,” the court explained, “for it is the bill that is subject to article III, § 14.”[29]

The court ultimately concluded that, “if a bill has but one general object, no matter how broad that object may be, and contains no matter not germane thereto, and the title fairly expresses the subject of the bill, it does not violate article III, § 14.”[30]

Justice Jonathan Papik, joined by Justice Stephanie Stacy, concurred. He agreed that L.B. 574 does not violate the single-subject rule.[31] But he doubted that searching for a bill’s “main purpose” or “object” is consistent with the text or original understanding of article III, § 14.[32] An “object” or “purpose,” he explained, is distinct from a “subject.”[33] He also suggested a third approach taken by other courts that asks whether a statute “covers two or more ‘dissimilar and discordant subjects’” that cannot be considered to have “any legitimate connection with or relation to each other.”[34]

Justice Lindsey Miller-Lerman concurred in part and dissented in part.[35] She agreed that the single-subject challenge was justiciable, but she would have held L.B. 574 unconstitutional.[36] Like Justice Papik, she would focus on the “subject” rather than the “object” of the bill.[37] But she would not define a single subject so broadly.[38] In her opinion, all of a bill’s provisions must “be related to one another and work in concert,” and the “substance of the various acts” must be “rationally or logically related.”[39] Because abortion and gender-altering procedures are “unrelated acts,” in her view, she would find they do not comprise “one subject.”[40]

The Nebraska Supreme Court in this case sent a clear message that it will decide single-subject challenges to legislation, but it left ambiguous the proper test to resolve such challenges. The Nebraska Legislature appears free for now to enact comprehensive bills so long as they are germane to a single main purpose and subject in the bill’s title. The court will not consider legislative history when determining whether a bill comprises a single subject.

[1] Planned Parenthood of the Heartland, Inc. v. Hilgers, 9 N.W.3d 604 (Neb. 2024).

[2] L.B. 574, 108th Leg., 1st Sess. (Neb. 2023); Introducer’s Statement of Intent, L.B. 574, 108th Leg., 1st Sess. (Feb. 8, 2023).

[3] L.B. 626, 108th Leg., 1st Sess. § 4 (Neb. 2023).

[4] Neb. L.B. 574 amend. 1658.

[5] See Let Them Grow Act, Neb. Rev. Stat. §§ 71-7301–07 (2023) (effective October 1, 2023); Preborn Child Protection Act, Neb. Rev. Stat. §§ 71-6912–17 (2023) (effective May 23, 2023).

[6] Complaint & Petition for Declaratory & Injunctive Relief at 14, Planned Parenthood of the Heartland, Inc. v. Hilgers, No. CI 23-1820 (Dist. Ct. of Lancaster Cnty., Neb., May 30, 2023).

[7] Id. at 13; see Neb. Const. art. III, § 14.

[8] Defendants’ Brief in Support of Rule 12(b)-Converted Motion to Dismiss and in Opposition to Plaintiffs’ Motion for Temporary Injunction at 17–20, Planned Parenthood of the Heartland, No. CI 23-1820 (June 8, 2023).

[9] Order at 12–19, Planned Parenthood of the Heartland, No. CI 23-1820 (Aug. 11, 2023). Planned Parenthood’s medical director also joined the suit, but the district court determined that she lacked standing, id. at 8–10, and the Nebraska Supreme Court declined to decide the issue, Planned Parenthood of the Heartland, 9 N.W.3d at 611.

[10] Planned Parenthood of the Heartland, 9 N.W.3d at 607.

[11] Id. at 609 (quoting Miller v. Hartford, 9 N.W. 477, 479 (Neb. 1881)).

[12] Id. at 609–10.

[13] Id. at 610 (quoting Jaksha v. State, 486 N.W.2d 858, 875 (Neb. 1992)).

[14] Id.

[15] Id. at 611.

[16] Id. (quoting Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union 182 (1868)).

[17] Id. at 612 (quoting Neb. Central Bldg. & Loan Ass’n v. Bd. of Equalization, 111 N.W. 147, 148 (Neb. 1907)).

[18] Id. at 612–13.

[19] Id. at 614.

[20] Id.

[21] Id. (quoting Appellant’s Brief at 21, Planned Parenthood of the Heartland, 9 N.W.3d at 604).

[22] Id. at 614–15 (comparing Jaksha, 486 N.W.2d at 874, with Van Horn v. State, 64 N.W. 365, 368–69 (Neb. 1895)).

[23] Id. at 615.

[24] Id. at 616.

[25] Id.

[26] Id. at 618.

[27] Id.

[28] Id. at 617.

[29] Id.

[30] Id. (quoting Van Horn, 64 N.W. at 365–66 (syllabus of court) (cleaned up)).

[31] Id. at 619 (Papik, J., concurring)

[32] Id.

[33] Id. at 620.

[34] Id. at 621 (quoting Johnson v. Harrison, 50 N.W. 923, 924 (Minn. 1891)).

[35] Id. at 624 (Miller-Lerman, J., concurring in part and dissenting in part).

[36] Id.

[37] Id. at 626–27.

[38] Id. at 627–29.

[39] Id. at 630.

[40] Id. at 624, 632.

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