In 1996, Nevada’s voters approved and ratified a constitutional initiative “relating to tax restraint.” The ballot question, which amended Article 4, Section 18 of the Nevada Constitution, established a requirement that at least a two-thirds majority of both houses of the Legislature needed to be secured to pass legislation that increased government revenue.

Did the authors of the initiative restrict themselves solely to taxation? 

No. Despite being written and ratified before the requirement to limit voter initiatives to a single subject was statutorily passed, the initiative limited itself to the single subject of public revenue. The subject of public revenue broadly includes the more limited subjects of taxes, fees, assessments, rates or anything else the state dreams up that might increase public revenue.

Did the authors of the initiative, bound by the constitutional prohibition against proposing amendments that might lead to an increase in the expenditure of government money, have to disclose any potential unintended fiscal consequences of their measure? Did they have to, for example, disclose the possibility that, by making it more difficult for the state government to raise money, passing the measure might increase demand on county and municipal appropriations and expenditures?

No. The ballot question was allowed to restrict its attention solely to first-order effects, which sought to limit how easily the state could appropriate additional money from the public. This was appropriate since second-order consequences — those that are, in turn, the result of intended and unintended immediate consequences — are, by their nature, unpredictable.

For example, if you finish reading this column, I can take responsibility for however much time you spent reading this column. I cannot, however, take responsibility for the second-order consequence of whether you enjoy or agree with this column or not. That is not solely within my control, even if I can take measures to increase the likelihood that you might enjoy this column by, for example, staying on message and keeping thinly relevant asides to a tasteful minimum.

I bring all of this up because, if Nevadans for Reproductive Freedom has its way, Nevada’s voters will have an opportunity to add another amendment to our state constitution — but if the Coalition for Parents and Children has its way, we will not.

The issue, as the Coalition for Parents and Children sees it, is the Reproductive Freedom Amendment — which, if passed, would extend the same protections we currently enjoy against the government’s ability to infringe against our freedom of speech to most matters pertaining to human reproduction — is, in a word, bad.

Being politically or morally opposed to a constitutional initiative, however, doesn’t grant one legal standing. Consequently, if the Coalition for Parents and Children wants to keep the measure off of our ballots, it needs to reverse engineer some potential defects that it could challenge the referendum against.

One alleged defect is that the Reproductive Freedom Amendment doesn’t limit itself to a single subject. According to a lawsuit the coalition recently filed, the amendment — which explicitly lists prenatal care, childbirth, postpartum care, birth control, vasectomy, tubal ligation, abortion, abortion care, management of a miscarriage and infertility care as matters it would protect from governmental infringement if ratified — “embraces a litany of subjects that clearly amount to logrolling.”

This logic, however, could just as easily be applied to ballot measures that, for example, require two-thirds votes of both houses of the Legislature to pass measures that increase “a tax, fee, assessment, rate, or any other form of public revenue.” Are taxes a separate subject from fees? For that matter, are property taxes a separate subject from sales taxes? How specific of a subject does a constitutional referendum need to address before the people are allowed to write a meaningful amendment to our own governing documents?

This, I will add, doesn’t even address whether the Legislature even has the constitutionally enumerated power to require voter initiatives to stick to a single subject in the first place. Article 19, Section 2 of the Nevada Constitution is clear — even though the power to legislate is otherwise reserved for the Legislature, “the people reserve to themselves the power to propose, by initiative petition, statutes and amendments to statutes and amendments to this Constitution, and to enact or reject them at the polls.”

Though Section 5 grants the Legislature the power to facilitate the operation of the initiative process, it doesn’t grant the Legislature the power to restrict it. If a majority of Nevada’s voters choose to amend every word of our state constitution in a single voter referendum, we have that right regardless of whether the Legislature thinks we should “embrace but one subject” or not.

Put another way, does the Legislature have the power to demand I stick to a single subject in my columns despite my constitutionally guaranteed right to freely write and publish my sentiments on all subjects? Clearly not.

Another alleged defect of the Reproductive Freedom Amendment is that the description of effect printed on the initiative petition does not tell petition signers that, if ratified, the state will be prohibited from investigating or taking action against miscarriages or stillborn births. 

It’s true that the description — which, unlike my columns, is limited to 200 words — does not explicitly state this. Instead, the description states that the state may not penalize or prosecute individuals based on the outcome of an individual’s pregnancy. Miscarriages and stillbirths are, of course, included as potential outcomes of an individual’s pregnancy. 

Once again, the whole contains the allegedly missing parts.

One final alleged defect of the Reproductive Freedom Amendment is that, if ratified, it would require a tax-funded board to review whether abortions or reproductive services delivered to consenting patients were performed pursuant to a standard of care — a board whose funding is not provided for in the ratification.

This defect, however, fails because the amendment does not require the creation of a board or any other governing body to determine whether a particular service was delivered according to a specific standard of care. Not only does the amendment not explicitly require that such a board must be created, one such board already exists. The Board of Medical Examiners is already empowered with the responsibility to ensure all medical care, whether it’s reproductive care or not, meets existing standards of care.

I recognize that granting the same protections to reproductive rights — including abortion — as we currently extend to speech and religious rights is deeply undesirable to those who are morally or politically opposed to abortion. I consequently understand why those opposed to widening the already substantial protections to reproductive rights enjoyed by Nevadans are fighting tooth and nail anywhere they can against further expansions.

Explanation, however, is not justification. If the Coalition for Parents and Children truly believes that ratifying the Reproductive Rights Amendment is a mistake, it should be willing to make that case openly and directly. Attempting to deny Nevadans the right to even consider the matter violates our constitutionally guaranteed right to self-government.

David Colborne ran for public office twice. He is now an IT manager, the father of two sons, and a weekly opinion columnist for The Nevada Independent. You can follow him on Mastodon @[email protected], on Bluesky @davidcolborne.bsky.social or email him at [email protected].