Stenberg v. Carhart: Poor Interpretivist Analysis, Unreliable Expert Testimony, and the Immorality of the Court's Invalidation of Partial-birth Abortion Legislation

• Publication year: 2022
• Citation: Vol. 34

34 Creighton L. Rev. 549. STENBERG V. CARHART: POOR INTERPRETIVIST ANALYSIS, UNRELIABLE EXPERT TESTIMONY, AND THE IMMORALITY OF THE COURT'S INVALIDATION OF PARTIAL-BIRTH ABORTION LEGISLATION

Creighton Law Review

Vol. 34

RICHARD COLLIN MANGRUM(fn+)

I. INTRODUCTION

No issue in the law has been more politicized the last few decades than abortion. Divergent perspectives on abortion fuel political campaigns from the presidential level on down. The abortion question, regardless of political rhetoric to the contrary, provides the first question, if not the litmus test, for Supreme Court nominees from both parties. Any comment by a legislative, judicial, or executive candidate or officer revealing a personal view on the abortion issue typecasts that candidate or officer forever as either pro abortion/pro choice or antiabortion/pro life. The label becomes part of that person's political identity. Whether others will support or criticize that officer or candidate often turns on the fundamental answer to the abortion question. Accordingly, whenever the Supreme Court enters the abortion fray, everyone listens. The Supreme Court's most recent abortion pronouncement in Stenberg v. Carhart,(fn1) therefore, deserves our attention, if not devotion.

The transparency of the naked politics raging between the Supreme Court justices in Carhart can hardly be covered by the fig leaf of rule of law rhetoric invoked by the justices to cover themselves. Indeed, there is little left to the imagination even before the facts of the case reveal themselves to provide a judicial construct within which the tapestry of the opinion will be woven. Regardless of the facts of the case, and regardless of the specific issue addressed, Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer will vote to invalidate any law that restricts any method of abortion on demand. Conversely, Chief Justice William H. Rehnquist, Justices Clarence Thomas and Antonin Scalia will vote to uphold any law that aims at curtailing abortion rights. The three justices who jointly authored the majority opinion in Planned Parenthood of Southeastern Penn-sylvania v. Casey,(fn2) Justices Anthony M. Kennedy, David H. Souter and Sandra Day O'Connor, remain the only justices who appear equivocal on the issue of abortion. Their joint opinion in Casey paid lip service to the notion that the state has a legitimate interest in regulating, within certain limits, abortion and abortion procedures. The joining of Justices Souter and O'Connor to the majority in Carhart signals that the rhetoric in Casey, that the state has a cognizable interest in valuing life and the inhumanity of certain abortion procedures, will remain rhetoric alone with the present composition of the Supreme Court. Abortion cases, the most contentious of all legal issues, will remain split five to four disfavoring abortion restrictions for the foreseeable future. Hence the watchful eye over future Supreme Court candidates remains a significant exercise for anyone who cares dearly about the abortion issue.

Carhart represents the Court's most recent pronouncement on abortion in general, and the controversy regarding partial-birth abortion in specific. Partially encouraged by the promise in Casey, that states are empowered to enact abortion legislation expressing a preference for life,(fn3) Congress in 1995 passed and President Clinton vetoed legislation that would prohibit the most infamous of all abortion procedures: partial-birth abortion.(fn4) Following Congress' lead, a majority of the states, including Nebraska, enacted partial-birth abortion statutes. Patterned after the congressional model, the statutes proscribed partial-birth abortions, generally described as the partially delivering of a live fetus, before killing the fetus and completing the delivery.(fn5) If the promise of Casey meant anything, surely the states could proscribe the most horrific of all abortion procedures. However, shortly after Nebraska's ban was enacted, Dr. Leroy Carhart, the only physician performing partial-birth abortions in Nebraska, successfully challenged Nebraska's ban. The Supreme Court's acceptance of certiorari in Carhart presented the Court with an opportunity to announce whether Casey's promise that the Court would be more deferential to the interests of states in regulating abortion was anything more than lip service. The majority opinion in Carhart answers the question with a resounding "No."(fn6)

II. STENBERG V. CARHART

A. LOWER COURT HISTORY:

1. District Court Decisions(fn7)

a. Facts:

Leroy Carhart ("Dr. Carhart"), an M.D. specializing in abortions, filed an action seeking a preliminary injunction against the enforcement of Nebraska's newly enacted "partial-birth" abortion statute.(fn8) Doctor Carhart has no board certifications from any medical specialty board and no hospital privileges, but performs an average of eight hundred abortions a year in his abortion clinic in Bellevue, Sarpy County, Nebraska.(fn9)

Of the eight hundred abortions Dr. Carhart performs each year, approximately one hundred ninety of the patients are between the sixteenth and twentieth week of pregnancy.(fn10) Doctor Carhart testified that he was unaware of any other abortion provider in Nebraska who conducted elective abortions past the sixteenth week of gestation.(fn11) Doctor Carhart also performs abortions after the twentieth week of gestation.(fn12) Indeed, Dr. Carhart performs abortions after the period of likely viability, but only if he receives "a specific referral from the patient's physician identifying fetal flaws, stating that the fetus is not viable and stating that the patient needs an abortion."(fn13) Doctor Carhart "testified viability may occur around [twenty-two] weeks' gestation, but it can vary depending upon maternal habits such as drug and alcohol use and lack of prenatal care."(fn14) The State of Nebraska of-fered evidence that a child born at twenty-four weeks has about a fifty-five percent possibility of survival.(fn15)

Doctor Carhart selects the abortion procedure he uses primarily based upon the gestational age of the fetus.(fn16) From the sixteenth week to the twentieth week of pregnancy, Dr. Carhart attempts to deliver alive the body of the unborn child intact, except the head, then crushes the skull and evacuates the contents of the brain so that the compressed skull can be more easily pulled through the cervix.(fn17) Doctor Carhart performs approximately one hundred ninety abortions each year between the sixteenth and twentieth week of gestation wherein he attempts this "partial-birth abortion" procedure.(fn18) After the twentieth week, Dr. Carhart kills the fetus by injection before beginning this intact delivery procedure.(fn19) By killing the fetus early, these late-term abortions fall outside Nebraska's partial-birth abortion ban. However, because approximately one hundred ninety of the eight hundred abortions Dr. Carhart performs each year using the intact dilation procedure on a live fetus are arguably within Nebraska's ban on partial-birth abortions, he filed an action challenging the constitutionality of Nebraska's ban as applied to him and his patients.(fn20)

b. Abortion Procedures

The central issues in the case turn on expert testimony: first, the extent to which Nebraska's ban on partial-birth abortion presents an undue burden on the mother's right to an abortion because of an increased health risk to the mother and, second, if Nebraska's ban extends to the dilation and evacuation procedure as well as the intact dilation and evacuation procedure. On both these issues the court relied extensively on the American Medical Association's "Report of the Board of Trustees on Late-Term Abortion" ("AMA Report"), admitted into evidence by stipulation.(fn21) Because Nebraska's partial-birth abortion statute focuses on the procedure used during the abortion, rather than whether the abortion should be undertaken at all at this late stage of fetal development, understanding the variant late term abortion techniques described in the AMA Report becomes important.

i. Suction Curettage or Vacuum Aspiration

The AMA Report describes the "suction curettage, or vacuum aspiration" method as the most common method of conducting abortion from the sixth through the twelfth week of gestation.(fn22) No one contended that this abortion method during the first trimester offended the challenged partial-birth abortion statute and, consequently, the specific details of this technique are unimportant for the Carhart case.

ii. Dilation and Evacuation

The AMA Report describes the "dilation and evacuation" ("D & E") method as the most common method of conducting abortions from the thirteenth through fifteenth weeks of gestation.(fn23) In brief, the physician performing the D & E procedure dilates the cervix and inserts instruments "through the cervix into the uterus to remove fetal and placental tissue."(fn24) In performing a D & E abortion the physician essentially grabs fetal parts with the instruments and tears them from the fetal body, piece by piece. The unborn child usually dies while still in the uterus from the trauma of having the body torn apart prior to completion of the abortion. The court noted that according to the AMA Report, the D & E procedure, with some variation, is also widely used by many physicians who perform abortions from sixteenth to...