Stenberg v. Carhart.

• Author: Bostrom, Barry A.
• Position: Nebraska ban on partial birth abortions

Dr. Leroy Carhart is a Nebraska physician who performs abortions in a clinical setting. He brought this lawsuit in Federal District Court seeking a declaration that the Nebraska statute violates the Federal Constitution, and asking for an injunction forbidding its enforcement. After a trial on the merits, during which both sides presented several expert witnesses, the District Court held the statute unconstitutional. 11 F. Supp.2d 1099 (D.Neb. 1998). On appeal, the Eighth Circuit affirmed. 192 F.3d 1142 (8th Cir. 1999); Stenberg v. Carhart, 120 S. Ct. 2597, 2605 (2000). The United States Supreme Court affirmed holding that the Nebraska ban on partial birth abortions violates the Federal Constitution as interpreted in Casey and Roe. 120 S. Ct. at 2604-17. Justice Breyer delivered the opinion of the Court. Id. at 2604. Justices Stevens, O'Connor and Ginsburg filed concurring opinions. Id. Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas filed dissenting opinions. Id. The Supreme Court's own syllabus ably summarizes its rationale. Id. at 2600-04.

The Majority Opinion

The Court's fundamental premise is that the Constitution offers basic protection to a woman's right to choose whether to have an abortion. Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). Before fetal viability, a woman has a right to terminate her pregnancy and a state law is unconstitutional if it imposes on the woman's decision an "undue burden," i.e., if it has the purpose or effect of placing a substantial obstacle in the woman's path. Id. at 877. Postviability, the State, in promoting its interest in the potentiality of human life, may regulate and even proscribe abortion, except where "necessary, in appropriate medical judgment, for the preservation of the [mother's] life or health." Id. at 879. The Nebraska law at issue prohibits any "partial birth abortion" as a procedure in which the doctor "partially delivers vaginally a living unborn child before killing the ... child," and defines the latter phrase to mean "intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the [abortionist] knows will kill the ... child and does kill the ... child." Violation of the law is a felony, and it provides for the automatic revocation of a convicted doctor's state license to practice medicine. 120 S. Ct. at 2600.

Because the statute seeks to ban one abortion method, the Court discusses several different abortion procedures, as described in the evidence below and the medical literature. During a pregnancy's second trimester (twelve to twenty-four weeks), the most common abortion procedure is "dilation and evacuation" (D&E), which involves dilation of the cervix, removal of at least some fetal tissue using non-vacuum surgical instruments, and (after the 15th week) the potential need for instrumental dismemberment of the fetus or the collapse of fetal parts to facilitate evacuation from the uterus. When such dismemberment is necessary, it typically occurs as the doctor pulls a portion of the fetus through the cervix into the birth canal. The risks of mortality and complication that accompany D&E are significantly lower than those accompanying induced labor procedures (the next safest mid-second-trimester procedures). A variation of D&E, known as "intact D&E," is used after sixteen weeks. It involves removing the fetus from the uterus through the cervix "intact," i.e., in one pass rather than several passes. The intact D&E proceeds in one of two ways, depending on whether the fetus presents head first or feet first. The feet-first method is known as "dilation and extraction" (D&X). D&X is ordinarily associated with the term "partial birth abortion." The District Court concluded that clear and convincing evidence established that Carhart's D&X procedure is superior to, and safer than, the D&E and other abortion procedures used during the relevant gestational period in the ten to twenty cases a year that present to Dr. Carhart. Moreover, materials presented at trial emphasize the potential benefits of the D&X procedure in certain cases. Id. at 2605-08.

The Supreme Court held that the Nebraska statute is unconstitutional for two reasons. First, it lacked the requisite exception "for the preservation of the ... health of the mother." Casey, 505 U.S. at 879 (joint opinion). The State may promote but not endanger a woman's health when it regulates the methods of abortion. 120 S. Ct. at 2608-13. The Court rejects Nebraska's contention that there is no need for a health exception here because safe alternatives remain available and a ban on partial-birth abortion/D&X would create no risk to women's health. The parties strongly contested this factual question in the District Court; and the Court held that the findings and evidence support Dr. Carhart. Id. at 2610.

Nebraska and its supporting amici responded with eight arguments as to why the District Court's findings are irrelevant, wrong, or applicable only in a tiny number of instances. Id. at 2610-11. The Court held...