A judge in Nevada has struck down a petition from pro-abortion groups to place a question on the 2024 ballot aiming to make access to abortion a constitutional right across the battleground state.
In an opinion handed down Tuesday, District Court Judge James Russell ruled that the proposed measure—which would amend the Nevada Constitution to guarantee a right to “all matters relating to pregnancy” ranging from infertility care to birth control, vasectomy, abortion, and prenatal and postpartum care—is too broad to be added to the ballot as a single-subject question.
“The Petition embraces a multitude of subjects that amount to logrolling,” Mr. Russell wrote in the opinion, noting that the pro-abortion petitioners failed to offer any explanation as to how all those subjects are “functionally related” to each other.
“For instance, it is unclear how a vasectomy relates to infertility care or postpartum care,” he wrote. “Likewise, it is unclear how postpartum care is related to abortions or birth control. Thus, it is improper to characterize these broad categories as a ’single subject.'”
“The Legislature could not reduce ’reproductive health' to a single statute, let alone a single statutory chapter,” the judge added.
In addition, Mr. Russell noted that the question would implicitly require a funding source, since if the measure passed the state would need money to establish a panel or board to evaluate whether a health care provider performed an abortion within the standard of care.
The Nevada Constitution prohibits any citizen-initiated ballot measure that demands extra spending unless it also imposes a “sufficient tax” or otherwise “provides for raising the necessary revenue.” This pro-abortion initiative, however, did not specify how the state might fund the legal entity to protect the proposed “reproductive rights.”
“If no board is created ... then the plain meaning of the petition would be rendered meaningless,” said Mr. Russell. “This is an unfunded mandate.”
The pro-abortion groups that spearheaded the measure, including Planned Parenthood and the Nevada chapter of the American Civil Liberties Union (ACLU), also claimed that the proposed constitutional amendment would not “narrow or limit the rights to equality and equal protection.” Mr. Russell called such description “misleading.”
“It is unclear what the term ‘equality’ means legally,” he wrote.
More importantly, according to the judge, the petitioners failed to mention that the constitutional amendment would actually narrow the protection for pregnant women by stopping the state from holding health care providers accountable for miscarriage or stillbirth.
“[The Petition] vaguely states, ’the State may not penalize, prosecute, or take adverse action against any individual based on the outcome of the pregnancy of the individual,'” Mr. Russell explained. “This is misleading because it does not delineate the fact that the petition will prevent the State from investigating or taking action against any miscarriage or stillborn birth.”
The pro-abortion advocates are planning to appeal Mr. Russell’s ruling to the Nevada Supreme Court.
“We will not let one judge’s misguided ruling deter us from giving Nevadans the opportunity to vote to permanently protect their reproductive rights in the Nevada Constitution,” Lindsay Harmon, president of pro-abortion group Nevadans for Reproductive Freedom, on Wednesday said in a statement.
Meanwhile, Jason Guinasso, the attorney representing the state, said in an interview on Wednesday that the ruling was the “right outcome.”
“They [have] got to do a better job of redefining what it is they are proposing,” the lawyer said.
The petition was originally filed in September. If the question made it to the November 2024 ballot and passed with a simple majority, it would appear again on the 2026 ballot, because a second passage is required to amend the state’s constitution.
Nevada Democrats, who managed to secure a victory in last year’s Senate race with a razor-thin margin of less than 8,000 votes, are hoping to boost their turnout in the upcoming presidential election by invoking the abortion debate.
“We will continue to remind Nevadans of Republicans’ extreme anti-choice agenda every day until next November,” said Johanna Warshaw, a spokesperson for the Nevada Democratic Party. “The entire GOP field is pushing for a national abortion ban.”
“It’s going to continue just being a really critical issue this cycle,” she added.
Current Nevada law permits abortions performed at up to 24 weeks of pregnancy. This was cemented by a 1990 ballot referendum, where almost two-thirds of Nevada voters voted in favor of a measure to make sure that language could only be modified or changed by another referendum.
In March, Democrats in the Nevada Senate filed a proposal to amend the state constitution, declaring that every individual in the state has the “right to reproductive freedom.”
The proposed language says the state “may not penalize, prosecute, or take adverse action against any individual based on the outcome of a pregnancy of the individual, or against any licensed health care provider who acts consistent with the applicable scope and practice of providing reproductive health care services to an individual who has granted their voluntary consent.”
“Neither may the State penalize, prosecute, or take adverse action against any individual or entity for aiding or assisting another individual in the exercise of the rights established by this initiative,” it adds.
If the Nevada Legislature approves the resolution, it would need to pass in the 2025 legislative session and go to voters for approval in 2026 before the constitution could be amended.
