The Nevada Supreme Court heard arguments last week about whether a question to enshrine abortion rights in the state Constitution can be placed on the November ballot.

But even if the court rules against that effort, a similar question may still appear on Nevada’s ballot.

Why?

The Nevadans for Reproductive Freedom PAC, which was founded last year and is connected to Planned Parenthood’s political advocacy arm, has simultaneously filed two separate abortion-related ballot efforts that have different scopes and legal statuses.

The first, which attorneys debated before the Supreme Court last week, began last September and is in legal jeopardy after a district court judge ruled in November that the proposed constitutional amendment — which would have also covered procedures or coverage like vasectomies, infertility care and prenatal care — was too broad, violating the state’s single-subject rule for ballot initiatives. 

Soon after that ruling, Nevadans for Reproductive Freedom launched a second effort with a much narrower scope. The same judge who struck down the group’s first effort cleared the second petition in January after a legal challenge, but that ruling is also being appealed in the state Supreme Court. 

Legal scrutiny is only the first hurdle. To get the measure on the ballot, petition supporters must obtain at least 102,362 signatures by June 26, with a minimum number of 25,591 signatures coming from each of the state’s four congressional districts.

If a measure lands on the ballot and is passed by voters, it would be placed on the ballot again in 2026; a second affirmative vote at that election would add the language to the state Constitution.

As of Monday, the group said that the second, narrower petition already had more than 45,000 signatures. The organization did not answer questions about which ballot initiative it would choose to pursue if the first petition prevails in court or give details about the breakdown of support by congressional district.

The ballot initiatives are part of a concerted effort by Nevada Democrats to make abortion rights a resonant political issue this year. Democrats benefited politically after the June 2022 overturning of Roe v. Wade, and the party is now hoping to continue capitalizing on that enthusiasm — a poll last year indicated that more than 60 percent of Nevadans across all parties support adding abortion rights to the Constitution.

Abortion is already legal up to 24 weeks into a pregnancy in Nevada because of a 1990 referendum, which can only be overturned by a majority vote of the people. 

Here’s a closer look at both ballot initiatives.

‘Reproductive freedom’ petition

Nevadans for Reproductive Freedom’s first petition sought to establish a constitutional right to reproductive freedom, which as written would cover prenatal care, childbirth, postpartum care, birth control, vasectomies, tubal ligations, abortion care and care for miscarriages.

The measure would also prohibit the state from penalizing any individual based on the outcome of their pregnancy, or any health care provider or another individual from assisting a person with an abortion.

In October, a new PAC called the Coalition for Parents and Children sued to block the effort. The lawsuit said the petition violated the state Constitution’s single-subject rule by including a wide swath of medical procedures. The lawsuit also said the question’s enforcement provisions would implicitly require money “to fund a board to review whether abortions or reproductive services were performed pursuant to standard of care.”

Carson City District Court Judge James Russell in November ruled that the ballot question was constitutionally invalid, saying it was “probably the clearest case I have seen that I think there is a violation of the single subject rule.” Nevadans for Reproductive Freedom appealed the ruling to the state Supreme Court.

In last week’s oral arguments on the appeal before the high court, several justices appeared skeptical of the district court’s ruling. Justice Douglas Herndon said that the medical procedures covered by the petition are related to each other and reproductive care more broadly.

“If my wife repeatedly has miscarriages in pregnancies, and it's very difficult for her, and I choose to get a vasectomy, so that we don't have to go through that and maybe we want to adopt, those things are very much related,” Herndon said. “Prenatal care, as I said earlier, is related to what happens in a pregnancy and potentially a miscarriage, postpartum care is related to what happens in childbirth.”

Jason Guinasso, the lawyer representing the Coalition for Parents and Children, acknowledged in an interview that the judges were skeptical of his arguments. He said a decision will likely come in April.

Abortion rights petition

Amid the legal uncertainty surrounding their first petition, Nevadans for Reproductive Freedom launched a much narrower second petition in December.

The revised petition would protect the right to an abortion until fetal viability, generally considered about 23 or 24 weeks, or when necessary to protect the life or health of the pregnant patient. These are essentially the same protections that already exist under Nevada law, but a constitutional right to an abortion would be harder to overturn.

In February, Nevadans for Reproductive Freedom held an event to officially kick off the ballot initiative that Illinois Gov. J.B. Pritzker, a Democrat and potential future presidential hopeful, attended. His nonprofit has poured $1 million into the effort and has also helped hire aides.

The Coalition for Parents and Children also challenged this petition by arguing its “description of effect” — a 200-word summary included on signature gathering forms — was misleading by not acknowledging that abortion is already legal under Nevada law. It also said the petition would create an unfunded mandate.

Russell, who also presided over this case, ruled against this challenge. He wrote that the “description of effect” was “legally adequate” and that there was no evidence the petition would result in an unfunded mandate.

Guinasso, who is again representing the Coalition for Parents and Children, filed an appeal to the state Supreme Court last month. In an interview, he said a hearing on the appeal would likely take place in May or June.

Legislative efforts to enshrine abortion protections in the Nevada Constitution

Both initiatives came after a group of 40 Democratic legislators, led by Senate Majority Leader Nicole Cannizzaro (D-Las Vegas), introduced and passed a measure during the 2023 legislative session to enshrine abortion protections in the Nevada Constitution. The constitutional amendment must return to the Legislature and pass again in 2025 before it could go before voters during the 2026 general election.

“Now that a radical Supreme Court has gutted the right to choose at the federal level, Nevadans should be given the opportunity to decide for themselves whether to protect reproductive freedoms in the state constitution,” Cannizzaro said in a statement following the Senate’s party-line vote to pass the constitutional amendment in April.

The proposed constitutional amendment, SJR7, echoes the first petition and would guarantee “a fundamental right to reproductive freedom,” authorize the state “to regulate abortion care after fetal viability with certain exceptions” and prevent the state from penalizing or prosecuting an individual exercising their “reproductive freedom.”

Though the governor has veto power over measures passed out of the Legislature, the proposed amendment could not be vetoed by the governor. 

This story was updated on 3/14/24 at 4:25 p.m. to correct the signature requirements for a question to be placed on the November ballot.