Preface.

• Author: Bopp, James Jr.

This edition of Issues in Law & Medicine focuses on partial-birth abortion and the constitutional issues raised and argued in the Nebraska case of Stenberg v. Carhart. The first Verbatim is the Petitioner's Brief by Nebraska Attorney General Don Stenberg. The Attorney General presents the following argument in support of Nebraska's ban on partial-birth abortions. Over the last five years, thirty States and both Houses of Congress have attempted to regulate an abortion procedure that 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 that "there does not appear to be any identified situation in which intact D&X is the only appropriate procedure to induce abortion." To prevent the use of this procedure in Nebraska, the citizens of the State responded with the legislation banning partial-birth abortions. 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.

The State of Nebraska contends that the federal courts have a duty to try to save, not destroy, democratically-developed legislation. The Eighth Circuit Court of Appeals failed to respect this rule in general, and in particular, the Customary benefit of the doubt that the Court gives state and federal lawmakers, when it concluded that the Nebraska law encompasses not just partial-birth (or D&X) abortions, but the more common D&E procedure as well.

The Nebraska Attorney General argues that the plain terms of the statute regulate the D&X procedure and no other. The D&E procedure is nowhere mentioned and nowhere banned. Even if doubt remained regarding the scope of the regulation, the answer was not to invalidate the law in its entirety in this pre-implementation challenge. It was to consider whether other time-honored rules of construction -- deference to administrative interpretations, legislative history, the doctrine of constitutional avoidance -- clarify any such ambiguity. The Attorney General, Nebraska's top legal official, has disclaimed any intent to construe the statute to apply to the D&E...