Brief of the Attorney General of the State of Nebraska in Stenberg v. Carhart(*).

• Author: STENBERG, DON

[1]

Opinions Below

The opinion of the United States Court of Appeals for the Eighth Circuit is reported at 192 F. 3d 1142 (8th Cir. 1999) (Pet. App. 1).(1) The opinions of the United States District Court for the District of Nebraska in this case are reported at 972 F. Supp. 507 (D.Neb. 1997) (Supp.App. 91) and 11 F. Supp.2d 1099 (D.Neb. 1998) (5upp.App. 1).

Jurisdiction

The judgment of the United States Court of Appeals for the Eighth Circuit was entered on September 24, 1999. A Petition For Writ of Certiorari was filed on November 15, 1999. Certiorari was granted on January 14, 2000. Jurisdiction in this Court exists under 28 U.S.C. [sections] 1254(1).

Constitutional and Statutatory Provisions Involved

1. Neb. Rev. Stat. [sections] 28-326(9):

   Partial-birth abortion means 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. For purposes of this subdivision, the term partially delivers vaginally a living unborn child before killing the unborn child means deliberately and intentionally delivering into the vagina a living [2] 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.

2. Neb. Rev. Stat. [sections] 28-328(1)-(4):

   (1) No partial-birth abortion shall be performed in this state, unless such procedure is necessary to save the life of the mother 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.

   (2) The intentional and knowing performance of an unlawful partial-birth abortion in violation of subsection (1) of this section is a Class III felony.

   (3) No woman upon whom an unlawful partial-birth abortion is performed shall be prosecuted under this section or for conspiracy to violate this section.

   (4) The intentional and knowing performance of an unlawful partial-birth abortion shall result in the automatic suspension and revocation of an attending physician's license to practice medicine in Nebraska by the Director of Regulation and Licensure....

3. U.S. Const. Amendment XIV:

   The Fourteenth Amendment provides in pertinent part: "Nor shall any State deprive any person of life, liberty, or property without due process of law."

1. Statement of the Case

   In the past five years the nation has witnessed an outpouring of public concern over a controversial medical procedure legally denominated as "partial-birth abortion" and now referred to medically as "D&X" abortion. [3]

   The United States District Court for the District of Nebraska described the partial-birth abortion/D&X procedure as follows, based on testimony by the Respondent in the present case:

   When the fetus is presented feet first, Carhart, using forceps, pulls the feet of the living fetus from the uterus into the vaginal cavity and then pulls the remainder of the fetus, except the head, into the vaginal cavity to a point where the base of the fetal skull is lodged in the uterine side of the cervical canal. At that point, the size of the head will not permit him to pull it through the cervical canal into the vaginal cavity. To decompress the fetal skull and evacuate the contents in order to pull it through the cervical canal, Carhart uses an instrument to either tear or perforate the skull to allow insertion of a cannula and removal of the cranial contents. Sometimes he will crush the skull rather than pierce it in order to reduce the size of the skull. Brain death occurs sometime during this two-to-three-second reduction procedure, but fetal heart function may continue for several seconds or minutes after the fetus's skull is decompressed. Carhart v. Stenberg, 11 F. Supp.2d 1099, 1106 (D.Neb. 1998) (Supp.App. 17).

   One nurse who personally observed the partial-birth abortion/D&X procedure stated, "I have been a nurse for a long time, and I have seen a lot of death -- people maimed in auto accidents, gunshot wounds, you name it. I have seen surgical procedures of every sort. But in all my professional years, I had never witnessed anything like this." Partial-Birth Abortion Ban Act, 1995: Hearings on H.R. 1833 Before the Senate Judiciary Committee, 104th Cong. 17-18 (1995) (Statement of Brenda Pratt Shafer, R.N.). [4]

   Nurse Shafer described the procedure's effect on a partially-born child as follows:

   [The doctor] brought the ultrasound in and hooked it up so that he could see the baby. On the ultrasound screen, I could see the heart beat. As [the doctor] watched the baby on the ultrasound screen, the baby's heartbeat was clearly visible on the ultrasound screen. [The doctor] went in with the forceps and grabbed the baby's legs and pulled them down into the birth canal. Then he delivered the baby's body and the arms -- everything but the head. The doctor kept the head right inside the uterus.... The baby's little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby's arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall. The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby's brains out. Now the baby went completely limp. I was really completely unprepared for what I was seeing. I almost threw up as I watched [the doctor] doing these things. Next, [the doctor] delivered the baby's head. He cut the umbilical cord and delivered the placenta. He threw the baby in a pan, along with the placenta and the instruments he had just used. I saw the baby move in the pan. I asked another nurse, and she said it was just reflexes. Id. The reaction to the development of this procedure has been truly unprecedented. Nation-wide, large bi-partisan majorities consisting of both pro-choice and pro-life legislators have voted to ban the procedure in thirty [5] States and both Houses of Congress. The general public clearly does not view the procedure as falling within the liberty right protected by Roe v. Wade and Casey due, in large part, to the fact the child is primarily outside the womb when it is killed. The Nebraska Legislature, with only one dissenting vote, passed a ban on the partial-birth abortion/D&X procedure which was signed into law on June 9, 1997. Nebraska's statute was patterned closely after language passed by both Houses of Congress.

   Just three days after enactment of Nebraska's statute, and before the statute had been applied in any setting, LeRoy Carhart, a Bellevue, Nebraska physician who performs late-term abortions, filed a pre-implementation Complaint challenging the constitutionality of the statute on its face. On June 17, 1997, the United States District Court for the District of Nebraska entered a Temporary Restraining Order preventing enforcement of the statute. The TRO remained in effect pending disposition of the Plaintiff's Motion For Preliminary Injunction which was heard on July 17 and 18, 1997. On August 14, 1997, the district court entered a preliminary injunction against enforcement of the statute.

   Following additional discovery, a trial on the merits was held on March 24, 1998, at which time additional testimony and evidence were received. On July 2, 1998, the district court permanently enjoined enforcement of the statute. Final Judgment was entered on August 10, 1998. A timely appeal was taken to the Eighth Circuit Court of Appeals, and on September 24, 1999, that court affirmed the judgment of the district court.

   Notwithstanding the fact that Nebraska's chief legal officer construes the statute as banning only the D&X abortion procedure, the Eighth Circuit read Nebraska's statute as banning both the partial-birth abortion/D&X procedure and the more common D&E procedure. The panel did not reach the issue of whether a State may enact a statute limited only to the D&X procedure, but [6] concluded that a prohibition encompassing the D&E procedure "imposes an undue burden on a woman's right to choose to have an abortion." Carhart v. Stenberg, 192 F.3d 1142 (8th Cir. 1999) (Pet.App. 19). A Petition For Writ of Certiorari was filed on November 15, 1999, and on January 14, 2000, the Court entered an order granting the Writ.

2. Summary of the Argument

   Over the last five years, thirty States and both Houses of Congress have attempted to regulate an abortion procedure that, in their judgment, is medically unnecessary and looks disturbingly close to infanticide. Supported by Democrats and Republicans, pro-choice and pro-life advocates and medical and non-medical interest groups, partial-birth abortion regulations represent a broad based response to an abortion procedure that was virtually unknown until 1995 and which is widely viewed as outside acceptable medical practice. The American Medical Association has concluded "there does not appear to be any identified situation in which intact D&X is the only appropriate procedure to induce abortion." Hope Clinic v. Ryan, 195 F.3d 857, 872 (7th Cir. 1999) (quoting AMA Policy H-5.982). To prevent the use of this procedure in Nebraska, the citizens of the State responded with the legislation now before the Court. Patterned after the federal bill passed by both Houses of Congress, the Nebraska law bans "partial-birth abortions," and does so in a constitutionally permissible manner.

   Federal courts have a duty to try to save, not destroy, democratically-developed legislation. Planned Parenthood Ass'n of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 493 (1983). In concluding that the Nebraska law encompasses not just partial-birth (or D&X) abortions, but the more common D&E procedure as well, the Eighth [7] Circuit failed to respect this rule in general and in particular the customary benefit of the doubt that...