Planned Parenthood of the Heartland, Inc. v. Hilgers

• Docket Number: S-23-644
• Decision Date: 26 July 2024
• Citation: Planned Parenthood of the Heartland, Inc. v. Hilgers, 317 Neb. 217, S-23-644 (Neb. Jul 26, 2024)
• Parties: Planned Parenthood of the Heartland, Inc., and Sarah Traxler, M.D., appellants, v. Mike Hilgers, in his official capacityas Attorney General for the Stateof Nebraska, et al., appellees.
• Court: Nebraska Supreme Court

1

317 Neb. 217

Planned Parenthood of the Heartland, Inc., and Sarah Traxler, M.D., appellants, v. Mike Hilgers, in his official capacityas Attorney General for the Stateof Nebraska, et al., appellees.

No. S-23-644

Supreme Court of Nebraska

July 26, 2024

1. Summary Judgment: Appeal and Error. An appellate court reviews a grant of summary judgment de novo viewing the record in a light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor.

2. Constitutional Law: Statutes: Appeal and Error. A statute's constitutionality is a legal question reviewed de novo.

3. Trial: Evidence: Hearsay: Appeal and Error. An appellate court generally reviews the district court's determination of relevancy and admis-sibility of evidence for an abuse of discretion. However, it reviews de novo a court's exclusion of evidence as hearsay.

4. Constitutional Law: Courts: Legislature Statutes. The construction and interpretation of the Nebraska Constitution is a judicial function, and it is the duty of the judicial branch to determine whether an act of the Legislature contravenes the provisions of the Nebraska Constitution, including the authority to determine what effect, if any, an unconstitutional statute shall have upon the rights of parties that may have been affected by it.

Appeal from the District Court for Lancaster County, Lori A. Maret Judge. Affirmed.

Matthew R. Segal and Julie A. Murray, of American Civil Liberties Union Foundation, Inc., Vince Powers, of Powers Law, Rose Godinez, Mindy Rush Chipman, Scout Richters, and Jane Seu, of American Civil Liberties Union of Nebraska, for appellants.

Michael T. Hilgers, Attorney General, Eric J. Hamilton, Solicitor General, Lincoln J. Korell, and Zachary B. Pohlman for appellees.

Megan Mikolajczyk, of Nebraska Civic Engagement Table, Anthony Schutz, of University of Nebraska-Lincoln College of Law, Robert McEwen, and Kenneth Smith for amicus curiae Nebraska Appleseed Center for Law in the Public Interest.

Robert F. Bartle, of Bartle & Geier, Beth Neitzel, and Amanda S. Coleman, of Foley Hoag, L.L.P., for amicus curiae League of Women Voters of Nebraska.

Matthew F. Heffron and Michael G. McHale for amicus curiae Thomas More Society.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Heavican, C.J.

I. INTRODUCTION

This appeal presents a very narrow constitutional question: whether a bill enacted by the Legislature and signed by the Governor violates the single subject requirement of Neb. Const. art. III, § 14. Planned Parenthood of the Heartland, Inc., and its medical director, Sarah Traxler, M.D. (collectively Planned Parenthood), sought a finding that 2023 Neb. Laws, L.B. 574, violated the single subject rule and thus was unconstitutional. The lower court concluded there was no single subject violation, and Planned Parenthood appeals. Nebraska Attorney General Mike Hilgers cross-appeals, arguing that this single subject challenge is nonjusticiable. We find no merit to the cross-appeal and affirm the judgment of the lower court.

II. BACKGROUND

This litigation involves the issue of whether L.B. 574 encompasses a single subject as required by Neb. Const. art. III, § 14. L.B. 574 was named the "Let Them Grow Act,"^[1]and its stated purpose, as introduced in January 2023, was to "prohibit the performance of gender altering procedures for individuals under the age of 19, provide for [the] definition of terminology[,] and allow for civil action[s] to be brought against violators of the act."^[2] The title of L.B. 574 stated that it was "relate[d] to public health and welfare." Planned Parenthood refers to such procedures as "gender-affirming care." Without disparaging that preference, we employ the statutory language.

As introduced, L.B. 574 restricted gender-altering care for minors, including procedures like voice surgery and the reduction of thyroid cartilage, as well as nonsurgical interventions like puberty-blocking drugs. It authorized any minor patient, or their parent or guardian, to sue a "health care practitioner" for providing such care.

During that same session, the Nebraska Legislature was considering 2023 Neb. Laws, L.B. 626, which was entitled the "Nebraska Heartbeat Act." L.B. 626 limited abortion upon the detection of a fetal heartbeat, or after approximately 6 weeks of pregnancy, with limited exceptions. The title of L.B. 626 indicated that the bill was "relate[d] to abortion." As of April 27, 2023, L.B. 626 failed to garner enough votes to end a filibuster and invoke cloture, and its progress through the Legislature stalled.

Unlike L.B. 626, L.B. 574 received enough votes to survive a filibuster and advance. In May 2023, an amendment to L.B. 574 was proposed. The amendment was entitled the "Preborn Child Protection Act"^[3] and proposed to limit abortion after 12 weeks of pregnancy. As with L.B. 626, the limitation on abortion services was subject to the same exceptions and provided enforcement through the revocation of medical licenses and civil fines of up to $20,000 per abortion. The title of L.B. 574, as amended, read:

A BILL FOR AN ACT relating to public health and welfare; to amend sections 38-192, 38-193, and 38-196, Reissue Revised Statutes of Nebraska, and sections 38-178, 38-179, 38-2021, and 38-2894, Revised Statutes Cumulative Supplement, 2022; to adopt the Preborn Child Protection Act and the Let Them Grow Act; to provide for discipline under the Uniform Credentialing Act; to harmonize provisions; to provide operative dates; to provide severability; to repeal the original sections; and to declare an emergency. During debate, a challenge was made to the amendment on germaneness grounds. Rule 7 of the Rules of the 108th Nebraska Unicameral Legislature requires that amendments must "relate only to details of the specific subject of the bill and must be in a natural and logical sequence to the subject matter of the original proposal." The chair of the Legislature ruled the amendment was germane. A later motion to overrule that decision was made and debated. By a 34-14 margin, the legislative body voted that the Preborn Child Protection Act amendment was germane to the Let Them Grow Act.

In addition to germaneness, legislative debate was held on whether L.B. 574, as amended, would violate the single subject requirement of article III, § 14. Following debate on this issue, the Legislature concluded that the bill contained only a single subject, satisfying the article III, § 14 requirement. The Legislature adopted the amendment on May 16, 2023; L.B. 574 was passed 3 days later and signed by the Governor. The abortion limitations took effect immediately in May 2023, while the limitations on gender-altering care became operative, along with emergency regulations from the Department of Health and Human Services' chief medical officer, on October 1.

Planned Parenthood is a nonprofit organization with health centers in Omaha and Lincoln, Nebraska, that provide a wide range of services, including abortion. Traxler is Planned Parenthood's medical director and a board-certified obstetrician and gynecologist licensed to practice in several states, including Nebraska. Traxler both oversees all medical and abortion services in Nebraska and provides some medical services, including abortion, in Nebraska. Prior to the effective date of L.B. 574, Planned Parenthood provided abortion services in Nebraska through 16 weeks 6 days of pregnancy; roughly one-third of those abortions occurred after 12 weeks of pregnancy.

Planned Parenthood filed suit in May 2023. Hilgers moved to dismiss for failure to state a claim; that motion was converted to one for summary judgment, and Planned Parenthood subsequently also moved for summary judgment. The district court found that Traxler lacked standing, the single subject challenges were justiciable, and L.B. 574 did not violate article III, § 14.

III. ASSIGNMENTS OF ERROR

Planned Parenthood assigns, renumbered, that the district court (1) erred in finding that Traxler lacks standing; (2) abused its discretion in excluding exhibit 1, paragraphs 21 to 23, 29 to 35, 38 to 44, 49, 50, 52, 54 to 59, 62, and 66, as well as exhibit 2's incorporation of these excluded paragraphs; (3) erred in excluding on relevance grounds legislative documents in exhibits 17 to 24 and 29 to 35 and by constructively denying Planned Parenthood's request to take judicial notice of those documents; (4) erred by excluding on the basis of hearsay the admissions of the Governor, a party-opponent, upon his signing of L.B. 574; and (5) erred in finding that L.B. 574 did not violate the single subject requirement of article III, § 14.

Hilgers assigns on cross-appeal that legislative single subject challenges under article III, § 14, are nonjusticiable political questions.

IV. STANDARD OF REVIEW

An appellate court reviews a grant of summary judgment de novo, viewing the record in a light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor.^[4] [2] A statute's constitutionality is a legal question reviewed de novo.^[5]

An appellate court generally reviews the district court's determination of "relevancy and admissibility of evidence" for an abuse of discretion.^[6] However, it reviews de novo a court's exclusion of evidence as hearsay.^[7]

V. ANALYSIS

1. Justiciability

We turn first to Hilgers' cross-appeal in which he makes several arguments, all suggesting that the issues presented here are nonjusticiable political questions. We find no merit to his arguments.

We have previously explained the importance of the single subject requirement of the constitution:

Our constitutional provision that "no bill shall contain more

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