Caseflicks

Supreme Court of the United States • 2000

Stenberg v. Carhart

530 U.S. 914 | 120 S. Ct. 2597 | 147 L. Ed. 2d 743 | 2000 U.S. LEXIS 4484 | 2000 Daily Journal DAR 6977 | 2000 Colo. J. C.A.R. 3802 | 13 Fla. L. Weekly Fed. S 496 | 2000 Cal. Daily Op. Serv. 5252 | 68 U.S.L.W. 4702

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Takeaway

In short, Stenberg invalidated Nebraska’s partial-birth-abortion ban because it lacked a health exception and was written broadly enough to threaten ordinary D&E abortions, thereby imposing an undue burden under Casey.

Background

Nebraska enacted a law making it a felony to perform a “partial birth abortion,” defined to include deliberately and intentionally delivering into the vagina a living fetus, or a substantial portion of one, for the purpose of performing a procedure known to kill the fetus. The law contained an exception only when the procedure was necessary to save the mother’s life; it contained no exception to protect her health.

Dr. Leroy Carhart, a Nebraska physician who performed second-trimester abortions, challenged the law before it was enforced. The evidence concerned dilation and evacuation (D&E), the most common second-trimester procedure, and intact D&E—also called dilation and extraction (D&X)—in which the fetus is removed largely intact and the skull is collapsed to permit extraction.

After a trial with competing medical experts, the Federal District Court held the statute unconstitutional. It found that intact D&E could be safer than alternatives in some circumstances and that the statute’s language could reach ordinary D&E as well as D&X. The Eighth Circuit affirmed. The Supreme Court likewise affirmed.

Issues

Issue #1

Whether Nebraska could ban the specified abortion method without an exception when the procedure was necessary, in appropriate medical judgment, to preserve the woman’s health.

Holding

No. The statute was unconstitutional because it lacked a health exception.

Reasoning

Casey reaffirmed that a State may regulate or proscribe abortion after viability only where the regulation includes an exception necessary, in appropriate medical judgment, to preserve the woman’s life or health. Because Nebraska’s law applied both before and after viability, and the State’s regulatory interest is weaker before viability, at minimum the same health protection was required for the law’s previability applications.

The health requirement was not limited to cases in which pregnancy itself endangered the woman. A State also may not regulate abortion methods in a way that exposes women to significant medical risks. Nebraska’s interest in expressing concern for fetal life, preventing perceived cruelty, or protecting medical ethics did not eliminate that constitutional limitation.

The trial record supported the conclusion that intact D&E could be safer than other methods for some patients. The District Court found that it could reduce the number of instrument passes, uterine or cervical injury, retained fetal tissue, infection, blood loss, and other complications. The American College of Obstetricians and Gynecologists likewise explained that the procedure could offer safety advantages in particular circumstances.

Nebraska emphasized that the procedure was uncommon, that alternatives were generally safe, and that no controlled comparative studies proved it was uniquely necessary. The Court held that these points did not establish that a health exception was unnecessary. Medical necessity does not demand absolute proof, unanimity among doctors, or a showing that no alternative exists; appropriate medical judgment permits responsible differences of medical opinion.

Where substantial medical authority concluded that banning a procedure could create greater health risks for some women, uncertainty itself did not justify the ban. If the procedure was in fact safer in particular cases, the absence of an exception would expose women to unnecessary and potentially serious harm; if it was not, the exception would simply have no practical use. The statute therefore had to include a health exception.

Issue #2

Whether Nebraska’s definition of “partial birth abortion” imposed an undue burden by reaching the common D&E procedure as well as intact D&E or D&X.

Holding

Yes. The statute’s breadth created an undue burden because it potentially prohibited the most common method of previability second-trimester abortion.

Reasoning

Under Casey, a regulation is invalid before viability if it has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion. Nebraska conceded that a ban on ordinary D&E would impose such an undue burden, because D&E was the commonly used method for second-trimester previability abortions.

The statutory definition covered deliberately and intentionally delivering into the vagina a living fetus, or “a substantial portion thereof,” before performing a procedure that kills the fetus. In an ordinary D&E, a physician may pull a living fetal arm, leg, or other substantial part through the cervix into the vagina before the fetus dies. The dismemberment may occur through traction against the cervix only after that portion has been drawn into the birth canal.

Nothing in the operative definition reliably distinguished D&E from D&X. The statute did not limit itself to extraction of an intact fetus up to the head, nor did it exclude D&E or other conventional abortion procedures, as some state statutes did. Its use of “substantial portion” was broader than the Attorney General’s proposed interpretation of “the child up to the head.”

The Court declined to adopt the Attorney General’s narrowing interpretation. The District Court and Eighth Circuit had rejected it; the Attorney General’s view did not bind Nebraska courts or local prosecutors; and the proposed reading was not reasonably apparent from the statute’s text. The Court also noted legislative debate indicating that the bill’s sponsor believed even a fetal foot could be a substantial portion under the law.

Because physicians performing D&E could reasonably fear prosecution, conviction, imprisonment, and loss of their licenses, the statute placed a substantial obstacle in the path of women seeking previability abortions. That independent undue-burden defect required invalidation.

Concurrences

Justice Stevens

Reasoning

Justice Stevens agreed that the law was invalid, but stressed that Nebraska could not rationally treat D&X as more brutal or less respectful of potential life than the D&E procedures it purported to permit. In his view, the State had no legitimate interest in forcing a physician to select a procedure other than the one the physician reasonably believed best protected the woman’s constitutional liberty.

He also suggested that the legislation reflected a broader effort to undermine the abortion right recognized in Roe. But, he concluded, the Court did not need to resolve that larger concern because it was irrational to ban one comparably gruesome procedure while allowing another.

Justice O'Connor

Reasoning

Justice O'Connor joined the Court's result, but justice O’Connor emphasized that Casey required a health exception even for a postviability abortion prohibition, and Nebraska’s own general postviability statute recognized that rule. Because the State’s interest before viability is weaker, its method-specific previability ban could not stand without an exception for the woman’s health.

She agreed that the medical evidence showed a significant body of professional opinion supporting intact D&E as safer in some circumstances. That evidence, rather than the preferences of one physician, triggered the constitutional need for a health exception.

She also agreed that Nebraska’s language reached ordinary D&E, the principal method of previability second-trimester abortion, and therefore imposed an undue burden. She added that a more narrowly drafted law limited to D&X, coupled with a life-and-health exception, would present a different question and in her view would likely be constitutional if adequate safe alternatives remained available.

Justice Ginsburg

Reasoning

Justice Ginsburg stressed that Nebraska’s law did not preserve fetal life because it regulated only the method by which an abortion was performed. Nor was the law directed toward protecting the health of pregnant women.

Echoing Judge Posner’s view in related litigation, she concluded that the law’s practical purpose was to erode the abortion right protected by Roe and Casey. A State may not burden that right merely to express hostility toward it, particularly by preventing a woman and her physician from choosing the method reasonably thought best for her.

Dissents

Chief Justice Rehnquist

Reasoning

Chief Justice Rehnquist reiterated that he believed Casey was wrongly decided. Nevertheless, he regarded its joint opinion as controlling under Marks and concluded that Justices Kennedy and Thomas had correctly applied Casey. He therefore joined their dissents.

Justice Scalia

Reasoning

Justice Scalia believed the Court’s health-exception requirement effectively gave physicians authority to perform the prohibited procedure whenever they claimed it was marginally safer. He regarded that result as an unjustified constitutional barrier to a State’s effort to prohibit what he characterized as a brutal form of abortion.

He argued that the decision was not merely a mistaken application of Casey but its logical consequence. In his view, Casey’s undue-burden standard was an unprincipled and standardless policy judgment made by judges rather than a rule derived from constitutional text or tradition. He concluded that Casey, and ultimately Roe, should be overruled.

Justice Kennedy

Reasoning

Justice Kennedy maintained that Casey recognized a substantial and legitimate state role in regulating abortion and expressing respect for fetal life. Nebraska could reasonably regard D&X as morally distinct from D&E because D&X uses the process of delivery to bring most of a living fetus outside the woman’s body before causing death. The State could seek to prevent what it viewed as an erosion of medical ethics and a blurring of the line between abortion and infanticide.

He rejected the majority’s health-exception analysis as excessive deference to individual physicians. In his view, the relevant Casey question was whether the law deprived women of the ultimate choice to obtain an abortion, not whether a doctor preferred the banned method. Because other safe abortion methods remained available and major medical organizations could identify no circumstance in which D&X was the only option to protect a woman’s health, the ban imposed no substantial obstacle.

Justice Kennedy also read the statute as limited to D&X. Its references to partial birth, delivery, and killing after partial delivery described an intact fetus partially delivered before a separate death-causing act. Ordinary D&E, by contrast, dismembers the fetus during extraction and does not entail completing the delivery of an intact fetus. At minimum, he argued, the Court should have adopted that narrowing construction to avoid invalidating the statute.

Justice Thomas

Reasoning

Justice Thomas maintained that neither the Constitution nor Casey prevented Nebraska from banning D&X while allowing other abortion methods. He criticized Roe and Casey as lacking constitutional grounding, but argued that even under Casey’s undue-burden framework Nebraska’s law was valid because it advanced the legitimate interest of expressing profound respect for fetal life without eliminating access to abortion.

He read the statute as applying only to D&X. Its requirement that a living fetus, or substantial portion of one, be delivered into the vagina before a death-causing procedure meant that the prohibited act involved partial delivery followed by a separate act causing death. In ordinary D&E, he reasoned, dismemberment during extraction is itself the death-causing act, not a delivery preceding a separate killing procedure.

Even if the text were ambiguous, Justice Thomas argued that the Court should have adopted a narrowing construction consistent with the ordinary meaning of “partial birth abortion,” the legislative purpose, and the canon requiring courts to avoid unnecessary constitutional invalidation. He faulted the majority for ignoring those principles and for refusing to credit the Attorney General’s narrowing interpretation.

He further argued that Casey’s health-exception language concerned situations where continuing a pregnancy threatened the woman’s life or health, not situations where a doctor believed one abortion technique marginally preferable to another. Requiring an exception whenever some medical opinion favored the prohibited procedure would, he warned, nullify almost any regulation of abortion methods. In his view, medical disagreement called for legislative latitude, and no evidence showed that the ban substantially obstructed any woman’s ability to obtain a safe abortion.