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Stenberg v. Carhart (2000)

In Depth


The state of Nebraska enacted the Partial-Birth Abortion Ban act. Thirty other states enacted similar laws. A Nebraska abortionist, LeRoy Carhart, brought suit in federal district court against Don Stenberg, the attorney general for Nebraska. Carhart sought a declaration that the law was invalid and an injunction to bar its enforcement.  The district court invalidated the law after conducting a trial. The Eighth Circuit Court of Appeals affirmed. Stenberg sought and obtained review in the United States Supreme Court.

The Statute under Review

Nebraska law criminalized the performance of partial-birth abortions.  A "partial-birth abortion" was defined as "an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery." The law also defined "partially delivers vaginally" as "deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child."

The law contained an exception, permitting partial-birth abortion when necessary to save the life of a woman "whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself."

Penalties for violating the law included a prison term of up to twenty years, a fine of up to $25,000, and revocation of the doctor's license to practice medicine in the state.

The Court's Holding

The Court struck down the law concluding that it was constitutionally infirm because it lacked a health exception and "imposed an undue burden."

The opinion was authored by Justice Breyer and joined by Justices Stevens, O'Connor, Souter and Ginsburg. Justice Stevens authored a concurrence in which Justice Ginsburg joined. Justice O'Connor authored a concurrence. Justice Ginsburg authored a concurrence in which Justice Stevens joined.  Chief Justice Rehnquist authored a dissent.  Justice Scalia authored a dissent. Justice Kennedy authored a dissent in which the Chief Justice joined. And Justice Thomas authored a dissent in which the Chief Justice and Justice Scalia joined.

The Court's Reasoning

1.  Health exception. The Court began its discussion by quoting Roe v. Wade's standard for post-viability abortions:  "subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary in appropriate medical judgment, for the preservation of the life or health of the mother."

The Court noted that the Nebraska law applied to abortions of both pre- and post-viable unborn children. The Court concluded that if a health exception is required after viability, it is also required before viability.  With respect to the state's interest in protecting unborn children prior to viability, the Court said Nebraska has a "weaker" interest. And in terms of the state's interest in protecting unborn children after viability, the Court said the ban did not promote this interest. The Court noted that even under the ban, unborn children could be killed by an alternative method of abortion.

Regardless of any interest the state may have in protecting unborn children, the Court said a health exception is required.  By requiring an exception to Nebraska's partial-birth abortion ban, the Court read Roe's standard more broadly. Not only would the Court require a health exception for a ban on all abortions after viability, but also, in some circumstances, for abortion regulations that fall short of an across-the-board ban.

Nebraska offered eight reasons challenging the  requirement for a health exception to its partial-birth abortion ban: (1) the procedure is rare, (2) the procedure is performed by a few doctors, (3) safe alternative procedures are available, (4) the ban would not create health risks to women, (5) the procedure involves unique health risks, (6) there are no medical studies demonstrating the procedure's safety, (7) the American Medical Association (AMA) said that the procedure is not the only appropriate procedure, and (8) the American College of Obstetricians and Gynecologists (ACOG) said that there were no cases in which the procedure would be the only option to save a woman's life or promote her health.

The Court rejected all eight arguments, saying that the first two were irrelevant.  The Court said that the third and fourth arguments were based on disputed facts.  The Court noted the district court found that in some circumstances the partial-birth abortion procedure was safer and that some experts said it eliminated some risks associated with abortion. The Court said ACOG disagreed with the fifth argument.  The Court did not question Nebraska's sixth and seventh arguments, though it did offer a correction to the seventh point. The Court said the AMA recommendation also allowed for use of the partial-birth abortion procedure if other procedures posed "materially greater health risks" to the woman.

The Court questioned Nebraska's eighth argument saying that it misunderstood ACOG's position. The Court cited ACOG's amicus brief saying that for some women partial-birth abortion offered health advantages.

The Court concluded its discussion of the health exception by saying the trial court found and the record supports the view that the partial-birth abortion procedure eliminates some health risks. The Court also said that the constitutional requirement that the government permit abortions deemed "necessary" in appropriate medical means that the government must tolerate differences in medical opinion.

The Court added that a division of medical opinion on the issue suggests uncertainty and uncertainty suggests health risks. And finally, the Court said "where substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women's health, Casey requires the statute to include a health exception when the procedure is 'necessary, in appropriate medical judgment, for the preservation of the life or health of the mother'" (emphasis added).

2.  Undue burden. The Court said that if the partial-birth abortion statute's language also applied to dilation and evacuation (D&E) abortion procedures, it would create an "undue burden" on a woman's right to choose abortion. D&E abortions involve dismemberment of the child inside the womb.

The language of Nebraska's partial-birth abortion ban, the Court concluded, did apply to D&E procedures because the statute prohibited delivery of a "substantial portion" of a living child "for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child."

The Court said that D&E's sometimes involve physicians removing by dismemberment a substantial portion of a living child into the vagina. The Court said that this method therefore involved delivery of a substantial portion of an unborn child.

Nebraska's attorney general offered a narrowing interpretation of the language "substantial portion," saying it would limit the ban to cases in which the child is delivered up to his or her head. The Court rejected the attorney general's interpretation, saying it could not defer to his interpretation because it was an unreasonable reading of the statute.

The Court also rejected the attorney general's argument that the word "procedure" following the language "substantial portion" limited the ban to the partial-birth abortion procedure. The attorney general read the language of the ban to involve delivery of the child or a substantial portion of the child before a separate procedure killed the child. In the D&E procedure, the child is killed by the act of dismemberment and not by a separate procedure as in a partial-birth abortion.

The Court rejected this understanding saying it required the statute to have the word "separate" in the definition.

The Court also rejected the dissenters' view that the word "delivery" limited the ban to partial-birth abortion. The Court said "delivery" is understood in obstetrics and gynecology to mean removal of any tissue from the uterus.

The Court concluded that because D&Es are common procedures and that because it read the ban to include D&Es, the ban must be struck down as imposing an undue burden.

The Concurrences

Justice Stevens (joined by Justice Ginsburg).  Justice Stevens agreed with the Court's opinion but wrote separately to say that the State has no legitimate interest in prohibiting a physician from doing what he or she thinks is best for a woman exercising a right to an abortion.

Justice O'Connor. Justice O'Connor wrote separately, saying that a ban that clearly applied only to partial-birth abortion, and not D&Es, would pass constitutional muster. Such a ban, she said, must have a health exception.

Justice Ginsburg (joined by Justice Stevens). Justice Ginsburg wrote separately, saying that the ban does not save any unborn children and that D&E is no less gruesome than PBA. She also expressed her agreement with Seventh Circuit Judge Posner that the aim of the law is to "chip away" at Roe v. Wade.  As such, she said, it burdens the constitutional rights of women.

The Dissents

The Chief Justice. Justice Rehnquist wrote separately, underscoring his view that Planned Parenthood v. Casey was an incorrect decision.  He said that Justice Kennedy and Justice Thomas properly applied Casey in their dissents.

Justice Scalia.  Justice Scalia also wrote separately.  He agreed with the other dissenters that the Court's decision did not follow from Casey.  Nothing in Casey, for example, requires a court to disregard the plain meaning of a statute or interpret it in a manner that renders it unconstitutional, as the majority did here.

But the problem, Justice Scalia said, is not simply that the majority misapplied Casey.  The problem is with Casey itself,  The undue burden test that Casey created is, in Justice Scalia's view, unprincipled in origin and unworkable in practice.  Casey, he said, should be overturned.

Justice Kennedy (joined by the Chief Justice).  Justice Kennedy authored a dissent, highlighting that Casey stands for the principle that states have an interest in protecting unborn human life.  He said the state may further this interest by banning the partial-birth abortion procedure even if the ban will not effectively save an unborn child.  The state, he said, may use the ban to promote its interest in maintaining the integrity of the medical profession.  He noted the critical difference between D&E and PBA is the location of the child and said the state ought to be allowed to draw a moral distinction between the two procedures.

He said the Court's decision goes too far by deferring too much to the abortionist's judgment, thereby allowing him to settle the abortion policy for the state.  He also noted that Nebraska has not prohibited any woman from obtaining a safe abortion.  Justice Kennedy said that the language of the statute was clear in prohibiting only PBA.  It did not, he said, include the D&E procedure because the definition required a "delivery" and removal of dismembered parts of an unborn child could not be considered a delivery.  Justice Kennedy concluded that the Court had failed in its duty to offer a constitutional construction of the statute.  And finally, Justice Kennedy noted that the Court imposed its view of the issue on some thirty states that had passed similar bans.

Justice Thomas (joined by the Chief Justice and Justice Scalia). Justice Thomas began his dissent by stating that Roe was an incorrect decision because the Constitution does not require abortion.  Justice Thomas noted that after Roe the Court struck down any regulation of abortion, but that with Webster and then Casey the Court began to recognize the state has an interest in protecting the lives of unborn children and may further this interest by regulating abortion.

The majority's decision, he said, is reminiscent of the immediate post-Roe era which struck down virtually any abortion regulation, and is not in accord with the Court's current abortion jurisprudence.

Justice Thomas said the Court failed to carry out its duty to construe statutes on the basis of their plain language and to resolve any ambiguities in statutory language by providing a constitutional reading of the statute, if possible.

In reading the Nebraska statute, Justice Thomas said the definition of the partial-birth abortion procedure does not include D&E procedures because it requires "delivery" and "delivery" supposes an intact child.  Justice Thomas pointed out that when the majority said "delivery" could include removing tissue from the uterus, they were relying on citations that involved delivery of the placenta after childbirth.  Nonetheless, a delivery involves the birth of an intact child.  Justice Thomas also pointed out that the majority provided no obstetrical source for the proposition that "delivery" could include extracting a limb of a child from the uterus.

Justice Thomas also said the sequence in the definition excluded D&Es because the definition requires delivery of the child and then a procedure that kills the child. (In the D&E, the act of dismemberment kills the child).  In addition to pointing out that the text of the law covers only the partial-birth abortion procedure, Justice Thomas notes that there is a common understanding of "partial-birth abortion" - adopted by most state legislatures, the Congress and discussed in medical authorities.  That common understanding speaks of the PBA procedure as distinct from D&E and limits the application of the law only to the former.

But even if there were any doubt about the meaning of the statute, the Court is required to construe it in a constitutional manner, if reasonable.  Justice Thomas said such a construction is possible.  He said the words "substantial portion" can be construed to mean the child must be "largely, but not wholly" delivered.

Justice Thomas also said the legislature is free to define the term "partial-birth abortion" even if the medical community does not generally use the term.  He also faulted the majority for not conducting a thorough statutory analysis.  He noted that the majority would require the state to adopt so precise a definition of the procedure that evading the law would be rather easy.  The state, he said, has an interest in preventing the deaths of partially-born children and is therefore free to define the procedure in a way broad enough to ban such killings.

In applying Casey, Justice Thomas said the state has a valid interest in protecting unborn children and may do so as long as it does not create an undue burden.  The state's interest here is so clear because it is prohibiting a procedure very similar to infanticide.  He noted that Casey requires a health exception only if continuing the pregnancy creates health risks to the woman. It does not require a health exception, as the majority says, if some physicians think the ban might have health consequences for the woman.  Justice Thomas says Casey requires a health exception only if the absence of an exception creates an undue burden.  He said the ban does not pose an undue burden because it would not create significant health risks.  He also noted the challenge to the law must demonstrate that there are "no set of circumstances" under which the law would be constitutional.  Carhart failed to make such a showing.  In fact, under the ban there would always be an alternative method of abortion available.

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