The Nebraska Supreme Court:
A Mixed Record of Judicial Restraint
Summary of the Nebraska State Supreme Court Whitepaper
For a PDF copy of the full Nebraska Whitepaper, please click here
Nebraska has numerous laws restricting abortion, but the Nebraska Supreme Court has rarely considered life issues. The Court, however, has a general record of judicial restraint and is not prone to follow a radical jurisprudence.
Life Issues
The Nebraska Legislature announced its preference for childbirth over abortion via a declaration of state policy enacted shortly after the U.S. Supreme Court decision in Roe v. Wade. The declaration expressed a desire “to provide protection for the life of the unborn child whenever possible . . . .”
Abortion
The Nebraska Legislature has passed several laws implementing its preference for life; these laws include a ban on partial birth abortion (which was declared unconstitutional by the U.S. Supreme Court in Stenberg v. Carhart), a prohibition of the use of public funds for abortion, and laws requiring parental notification and informed consent. The Nebraska Supreme Court has twice considered the parental notification statute. In both cases the Court upheld lower court decisions holding that the abortions could not lawfully proceed without parental notification.
Protection of the Unborn from Criminal Violence
The Nebraska Legislature has enacted several criminal statutes recognizing and protecting unborn life. The Nebraska Supreme Court has not heard any challenges to these laws.
Assisted Suicide
Nebraska criminalized assisted suicide in 1979, and there are no reported cases involving this statute.
Healthcare Rights of Conscience
Nebraska law protects individuals and healthcare facilities from being compelled to participate in or perform abortions. The Nebraska Supreme Court has not addressed these statutes.
Cloning and Destructive Embryo Research
Nebraska law prohibits the use of public funds for research involving the use of human embryonic stem cells. Several bills prohibiting human cloning and destructive embryo research have been proposed, but none have been enacted.
Judicial Restraint
The Court, for the most part, has been restrained and respectful of both the state legislature and the lower courts. In State v. Burlison, the Court reiterated its belief that “statutory language is to be given its plain and ordinary meaning . . . .” Addressing separation of powers, the Court expressed a conservative view in State v. Burlington Northern and Sante Fe Railway stating that even in the face of obvious legislative error “it is not the office of the courts to legislate into existence greater authority . . . than that granted under the statute.” Likewise, in In re Adoption of Luke, the Court declared that its job is not to create or expand rights beyond those created by statute. The Court, however, may have stepped beyond its constitutional role in State v. Moore when it sua sponte granted a stay of execution, but such activism is very uncommon for this Court.
The Court
The Nebraska Supreme Court is composed of a chief justice and six associate justices. A judicial nominating committee compiles a list of acceptable candidates, and the Governor then selects the appointee from that list. The appointed justice then faces a retention vote at the first general election after his initial three years on the bench. The justice is then up for another retention vote every six years. The Nebraska State Supreme Court White Paper contains a table of biographical information for each current member of the Court.
For a PDF copy of the full Nebraska Whitepaper, please click here