This article was originally published in: Vegas Legal Magazine, Vol. 8 Issue 4, p. 37, The Power of We the People of the State of Nevada: How Nevada’s Abortion Law Embodies the People’s Voice,
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How Nevada’s Abortion Law Embodies the People’s Voice
It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” Those are the words of Justice Alito in the opinion written for Dobbs v. Jackson Womens Health Organization, also known as the case that overturned Roe v. Wade. Among other reasons, Justice Alito’s basis for overturning Roe was the determination that each State’s legislature is in the best position to make and pass the laws that the people of that state want.
By 1990, the people of Nevada had already done what Justice Alito suggested in 2022. In 1973, NRS 442.250 was enacted. Later, in 1990, Nevada voters made NRS 442.250 permanent by passing a referendum pursuant to Article 19, Section 1 of the Nevada Constitution. According to the Legislative Counsel Bureau, NRS 442.250’s ballot question passed by 63.5% with 200,645 Nevadans voting in favor of Ballot Question No. 7 and 115,495 voting against. Per Nevada Secretary of State records, 516,423 people were registered to vote in Nevada for the October 6, 1990 general election.
Because NRS 442.250 was added by referendum, it “shall not be amended, annulled, repealed, set aside, suspended or in any way made inoperative except by the direct vote of the people.” In other words, in Nevada, the right to an abortion is guaranteed by a law that cannot be changed or repealed in any way unless a majority of Nevada voters say so.
This is what NRS 442.250 says:
1. No abortion may be performed in this state unless the abortion is performed:
(a) By a physician licensed to practice in this state or by a physician in the employ of the government of the United States who: (1) Exercises his or her best clinical judgment in the light of all attendant circumstances including the accepted professional standards of medical practice in determining whether to perform an abortion; and
(2) Performs the abortion in a manner consistent with accepted medical practices and procedures in the community.
(b) Within 24 weeks after the commencement of the pregnancy.
(c) After the 24th week of pregnancy only if the physician has reasonable cause to believe that an abortion currently is necessary to preserve the life or health of the pregnant woman.
2. All abortions performed after the 24th week of pregnancy or performed when, in the judgment of the attending physician, there is a reasonable likelihood of the sustained survival of the fetus outside of the womb by natural or artificial supportive systems must be performed in a hospital licensed under chapter 449 of NRS.
3. Before performing an abortion pursuant to subsection 2, the attending physician shall enter in the permanent records of the patient the facts on which the physician based his or her best clinical judgment that there is a substantial risk that continuance of the pregnancy would endanger the life of the patient or would gravely impair the physical or mental health of the patient.
According to Nevada’s abortion law, abortions in Nevada: 1) must be done by a doctor licensed to practice medicine in Nevada or employed by the U.S. government, who uses medical judgment to decide whether to perform the abortion and does so in a manner that is medically accepted; 2) an abortion can be performed after the 24th week of pregnancy if the doctor determines that the abortion is necessary to “preserve the life or health of the pregnant woman;” and 3) if an abortion is performed any time after the 24th week, or when the fetus may survive outside the womb, it must be done in a licensed hospital and the doctor has to state in the medical records the facts the doctor relied on to determine there was a substantial risk that the pregnancy would “endanger the life of the patient or would gravely impair the physical or mental health of the patient.”
In 2019, a bill was introduced in the Nevada Legislature to address parental notification requirements for pregnant minors and to revise the requirements relating to informed consent. The parental notification parts of the bill did not pass through the amendments process.
On June 28, 2022, Nevada Governor Steve Sisolak issued Executive Order 2022-08, which prohibited all state agencies, employees and officers from providing information or expending or using any “time, money, facilities, property, equipment, personnel or other resources” to assist anyone in another state seeking to impose criminal or civil liability on a person who assists or provides, secures, or receives, or inquiries about receiving abortion services in Nevada. The Executive Order encourages Nevada’s licensing bodies to consider granting reciprocal medical licenses to reproductive health care providers from other states, and prohibits extradition of a person who received reproductive health care services in Nevada to another state unless the crime charged would also constitute a criminal offense under the laws of the State of Nevada.
The recent events surrounding this issue underscore how important it is that Nevadans elect people who represent them at al I levels of state government and remember the power that the Nevada Constitution grants the People of Nevada to make their own laws. Nevada’s abortion law would not exist if it were not for the people who worked to put the referendum question on the ballot and to pass it. Nevada’s abortion statute is the personification of the power of “We the People” that can profoundly affect our lives.
Some people abstain from voting because they believe the lie that their vote will not make a difference. This lie is perpetuated by people who want to prevent “We the People” from exercising a valuable and irreplaceable right available only to those who live in a real democracy. On a state and municipal level, where the elected officials are closer to the People, each vote is even more important and election winners can be decided by small margins.
Nevada has a “citizen legislature” in which its elected officials meet for only 120 days in odd-numbered years. During the times the Legislature is not in session, they have other jobs. Except for during the legislative session, Nevada’s legislators do not keep offices or staff. Nevada is 1 out of 4 states where the state legislature meets for a set number of days every other year. The other 3 states are Montana, North Dakota, and Texas. Nevada has term limits for its legislators. Senators and Assembly members can each serve a total of 12 years. Senate terms are 4 years long and Assembly members serve 2-year terms. Only 15 states currently have term limits for legislators.
Nevada is a leader among the states in ensuring that its government serves “We the People.” Nevadans were decades ahead of the rest of the county in 1990 when they passed a commonsense referendum guaranteeing a woman’s right to reproductive health care. In 1990 and 2022, Nevadans understand the importance of each person having the right to make their own health care decisions without government intrusion.
Nevada’s referendum provision arises out of the Nevada Constitution. The Nevada Constitution is the primary source of the People’s power and rights, second only to the U.S. Constitution. Nevada’s Constitution established the laws of our state and grants the power held by its government, officers, and lawmakers. Nevadans’ exercise of Constitutional rights in bringing referenda is correlated with the historical tradition of keeping our government accountable. Nevada judges and Supreme Court justices, like Nevada legislators, are elected. Government accountability also depends on Nevadans being able to seek redress from lawmakers and in the courts. As this article is written, the Nevada Supreme Court is considering whether Nevadans can file civil rights lawsuits against the government for violating the Nevada Constitution. Just as Nevadans 32 years ago exercised their power to pass NRS 442.250 by referendum, Nevadans today must use our power at the ballot box this and every election year to support candidates that will enforce the Nevada Constitution, support personal freedom, and hold all branches of the government accountable. Our voice is our vote, and our vote is our power.