Brief of Dr. Carhart et al. in Stenberg v. Carhart(*).

• Author: HUG, JERRY M.

Questions Presented

1. Whether the Nebraska partial-birth abortion statute violates women's right to privacy because it bans a broad range of abortion procedures, including the safest method of second-trimester abortion, without regard to fetal viability?

2. Whether the court of appeals properly declined to narrow the scope of the Nebraska partial-birth abortion statute because doing so would have required the court to rewrite the law contrary to legislative intent and because such a narrowing construction would not cure its constitutional deficiencies?

3. Whether Nebraska's partial birth abortion statute violates women's right to privacy even if narrowed to ban only intact dilation and extraction abortions because it: (a) deprives women of their right to bodily integrity by forcing them to undergo undesired and unnecessary medical procedures and preventing some of them from undergoing the safest method of abortion; (b) has the effect of imposing an undue burden on women seeking pre-viability abortions by threatening their health without serving any legitimate state interest; (c) has the impermissible purpose of elevating legal protection of the fetus to the detriment of womenk health and liberty; and (d) lacks any exception for women who require abortions to preserve their health, and contains only an inadequate life exception.

4. Whether Nebraska's partial birth abortion statute is void for vagueness because it uses terms such as "substantial portion" that fail to give physicians adequate notice of the prohibited conduct and invite arbitrary and discriminatory enforcement?

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   Statement of the Case

   A woman's right to terminate her pregnancy is firmly rooted in the Constitution, as this Court recognized in Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood v. Casey, 505 U.S. 833 (1992). Moreover, Roe's essential holding that a woman may terminate her pregnancy prior to viability has repeatedly been affirmed by this Court.

   The Petitioners ("the State") seek to alter radically these basic tenets. In sweeping language, the Nebraska "partial-birth abortion" ban prohibits most modern abortion techniques without regard to viability of the fetus. See Neb. Rev: Stat. [subsections] 28-326(9), 28-328(1)-(4) ("the Act"). Indeed, the term "partial-birth abortion" was specifically designed to overturn Roe by luring this Court away from the viability polestar of its abortion jurisprudence. The Act is part of a coordinated national campaign to expand state interests in previable fetal life at the expense of women's health and liberty.(1) It attempts to eviscerate women's privacy rights by making the location of the fetus in the woman's body -- not [2] viability -- the defining criterion for women's pregnancy choices.(2)

   Since Roe, legal abortion has had an enormous positive effect on women's health in this Nation, both because of the development of increasingly safe abortion techniques and because the abortion choice has been available to women who would otherwise be forced to carry unwanted high-risk pregnancies to term. It has become increasingly difficult, however, for women to obtain abortions. Physicians, like Respondent Carhart, have been forced to work in an exceedingly hostile climate, created not only by private individuals, but also by legislatures that repeatedly enact anti-abortion legislation without regard to women's health or this Court's abortion jurisprudence. Hope Clinic v. Ryan, 195 F.3d 857, 879 (7th Cir. 1999) (Posner, C.J., dissenting) mandate stayed, No. 99A428 (Stevens, Circuit Justice, Nov. 30, 1999). The record in this case establishes that the Act is a deceptive maneuver in the campaign to erode women's right to choose abortion.

   1. The Nebraska Ban

      The Act bans "partial-birth abortions." It defines this term to mean "an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the child and completing the delivery" Neb. Rev. Stat. [sections] 28-326(9).(3) The Act further [3] states: "the term partially delivers vaginally a living unborn child before killing the unborn child means 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." Id.

      The Act contains no exception for abortions performed to protect a woman's health, nor an exception for when a particular method or variation is the safest for a particular woman.(4) The Act contains only a limited exception for abortions performed to save a woman's life; it permits such procedures only where "necessary" to save her life and then only if the woman's life is threatened by a physical condition. Neb. Rev. Stat. [sections] 28-328(1). By contrast, Nebraska's statute prohibiting post-viability abortions contains exceptions for the woman's life or health with no qualifiers, see Neb. Rev. Stat. [sections] 28-329, and permits women requiring such abortions to use the safest method, see Neb. Rev. Stat. [sections] 28-330.(5)

      The penalty for violating the Act is a maximum prison term of 20 years with up to $25,000 in fines. Neb. Rev. Stat. [subsections] 28-328(2), 28-105. The Act also provides that a physician's medical license may be revoked for performing a prohibited procedure. Neb. Rev. Stat. [sections] 28-328(4). These [4] penalties far exceed those Nebraska applied to illegal abortions prior to Roe. Former Neb. Rev. Stat. [sections] 28-404, 28-405 (both repealed in 1973) (from one to ten years imprisonment).

   2. The Legislative History of the Act

      The Act's legislative history demonstrates that the Nebraska legislature was intent on adopting a broad ban on abortions. It did not aim to ban any specific abortion method; rather, its sponsors "tried to be as encompassing as possible." J.A. 478-79 (Hilgert).

      The Act's chief sponsor, Senator Maurstad, acknowledged that it could operate in the first trimester of pregnancy. J.A. 447; see also J.A. 458-59 (Senator Bromm agreeing that bill is not a prohibition on late-term abortions). Moreover, Maurstad refused to equate "partial-birth abortion" with the "intact dilation and extraction" method of abortion, as the State now seeks to do in this Court. J.A. 1380-83. Although Senator Maurstad repeatedly described his bill in specific terms, ,see, e.g., J.A. 366 ("People know what `partial-birth abortion' means. It's when ... [e]very part of the child is outside the womb of the mother except for its head."), he conceded that the Act's language did not match his description.(6) J.A. 367. Later, however, Senator Maurstad admitted his description "was an accurate example of the definition provided in the bill," but "not the only example." J.A. 383 (emphasis added) (responding to questions by [5] Senator Chambers.(7) In fact, in opposing replacing the term partial-birth abortion" with the term "intact dilation and extraction," J.A. 381, Senator Maurstad agreed that such an amendment would change "what the bill is designed to do." Id. Thus, the Nebraska legislature defeated an amendment that would have substituted the term "intact dilation and extraction" for partial-birth abortion. J.A. 4-04.

      The Act's sponsors also consistently sought to extend legal protection to the fetus once any part of it was brought into the woman's vagina. Initially; the bill did not define the phrase "partially delivers vaginally." J.A. 417. Nevertheless, Senator Maurstad described the term partially" in his bill as meaning "everything up to completely," or "the opposite of `completely,'" and stated that "[t]here are many, many definitions of many examples that could fit in to the definition of `partially'." J.A. 385. See also J.A. 367 (Maurstad) ("'partially delivered' ... could be a foot"), 391 (Maurstad) ("partially delivers vaginally" means not completely delivered from the vagina").

      On the same day that a federal bill banning partial-birth abortion was modified in Congress, Senator Maurstad similarly amended the Nebraska bill to "define" "partially delivers vaginally" to mean "deliberate and intentional delivery into the vagina of a living 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." J.A. 416-17.(8) [6] This language was not intended to narrow the Act. After stating that the term "substantial" could be "easily defined and would not be something that would be necessarily contestable," J.A. 442, Senator Maurstad then stated: "one-third' of a fetus could be a substantial portion, J.A. 430; "one-fourth" could be, depending on "which fourth," J.A. 431; and "substantial would be subjective." Id. He also agreed that "as small a portion of the fetus as a foot would constitute a substantial portion," J.A. 452-53, as would a fetal hand. J.A. 453. Senator Maurstad plainly acknowledged that dismembering the fetus after "more than a little bit" of it had been delivered into the vagina would violate the Act. J.A. 442-43.

      Other Senators were also confused by the term "substantial portion," although that did not deter their support for the Act. Senator Brashear believed that "substantial portion" connoted both "the portion of the body and ... the function of that portion of the body," but he agreed that his gloss on the term was not in the bill. J.A. 443-44. He stated, "There's no question there will be a fact question as to what is a substantial portion." Id. at 444. Senator Abboud said: "I would assume ... `substantial' would mean a significant portion of that child"; he was unable to define the term further. J.A. 449. Senator Bromm, when asked if a physician reading the bill would understand what was meant by the words "or a substantial portion thereof," responded: "I think it would be difficult.... I think their...