Anyone's Bet:
Why Predicting the Direction of the Nevada Supreme Court on Vital Life Issues is Nearly Impossible
Summary of the Nevada Supreme Court Whitepaper
For a PDF copy of the full Nevada Whitepaper, please click here
Predicting how the Nevada Supreme Court might rule on life issues is difficult for three reasons: 1) the Court does not often hear abortion related cases; 2) the Court does not have a clear record of either judicial restraint or judicial activism; and 3) the composition of the Court changes frequently.
Life Issues
Abortion
The Nevada Revised Statutes permit abortion only when performed by a licensed physician and when the patient has given informed consent. Furthermore, an abortion may be performed after the twenty-fourth week only if necessary to preserve the health of the mother. The Nevada Supreme Court has not addressed this statute directly in any of its decisions.
Protection of the Unborn from Criminal Violence
The Court has not directly addressed the protection of the unborn from criminal violence. In Sheriff v. Encoe, a case involving prenatal drug use, the Court held that an unborn child is not a “child” for purposes of the state’s child endangerment statute. In the civil context, however, the Court has demonstrated a willingness to protect the unborn by allowing a wrongful death action for the death of a viable fetus and by permitting a medical malpractice action for harms done before the plaintiff’s birth.
Nevada has two criminal statutes imposing criminal liability for harming an unborn child. One statute declares that the willful killing of a fetus is manslaughter, punishable by one to ten years in prison. The other statute criminalizes any abortion not performed in compliance with state regulations.
Assisted Suicide
Nevada does not have an assisted suicide statute, and the Court has not addressed this issue. In a related matter, McKay v. Bergstedt, the Court held that a non-terminal quadriplegic could request that his respirator be removed resulting in his death.
Healthcare Rights of Conscience
Nevada law provides rights of conscience protections in the context of abortion, but the Court has not addressed this issue in any of its decisions.
Cloning and Destructive Embryo Research
Nevada law prohibits the use or sale of the remains of an aborted embryo or fetus. There are no other relevant statutes, and the Court has not addressed this issue.
Judicial Restraint
The Court cannot easily be classified; in some contexts it appears to exercise restraint, while in others it exhibits activist tendencies. Generally when interpreting a statute, the Court defers to the plain meaning of the language. The Court, however, has at times stepped beyond its traditional jurisdiction and decided issues not properly before it. In McKay, for example, the petitioner died before the Court could issue a ruling. This tragedy rendered the case moot. Yet the Court issued an opinion even in the absence of any case or controversy. Also, in Guinn v. Legislators of Nevada, the Court issued a writ of mandamus compelling the legislature to pass a budget by a simple majority, notwithstanding a state constitutional provision requiring a two-thirds supermajority vote for revenue raising legislation. This disregard for the constitution set off a firestorm resulting in the removal of four of the justices. In the wake of Guinn, the Court will likely exercise more restraint.
The Court
The Nevada Supreme Court is composed of seven justices, the most senior of which serves as the chief justice for a two year term. The justices and chief justice are popularly elected to six-year terms. The Nevada 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 Nevada Whitepaper, please click here