Steinberg v. Carhart: women retain their right to choose.

• Author: Berkowitz, Janeen F.

Stenberg v. Carhart, 120 S. Ct. 2597 (2000)

1. INTRODUCTION

   In Stenberg v. Carhart,(1) the Supreme Court held that a Nebraska statute banning partial birth abortions was unconstitutional. In a 5-4 decision, the Court concluded that: (1) the statute lacked any exception for the preservation of the health of the mother;(2) and (2) the statute was impermissibly vague and could be interpreted to include a ban on the most commonly used second trimester abortions, thereby unduly burdening a woman's right to choose abortion.(3) For these two distinct reasons, the Nebraska statute banning partial birth abortions was rendered unconstitutional.

   This Note argues that the judgment of the Court was correct.(4) The Note explains why the absence of a health exception in the statute rendered the entire statute unconstitutional and discusses why the statute could be interpreted to include a ban on multiple methods of abortion.(5) This Note further argues that the Supreme Court should have declared a broader holding on this issue.(6) By first addressing the issues of the health exception and the plain language interpretation, the Court did not have the opportunity to reach the issue of whether a narrowly tailored statute prohibiting only one method of abortion, specifically the Dilation and Extraction procedure (D&X), would in itself constitute an undue burden.(7) Ultimately, this Note concludes that a ban of the D&X alone would, in fact, impose an undue burden on a woman's right to choose abortion and, therefore, should be deemed unconstitutional.(8)

   1. BACKGROUND

   1. The Right to Privacy

      The Constitution does not explicitly mention any right to privacy.(9) However, the Supreme Court has recognized that a right of personal privacy does exist under the Constitution.(10) The Court has opined that this right of personal privacy has its roots in the First Amendment;(11) the Fourth Amendment;(12) within the penumbra of the Bill of Rights;(13) in the Ninth Amendment;(14) or in the Fourteenth Amendment's concept of personal liberty.(15) And, this right of privacy has been found to extend to marriage;(16) procreation;(17) contraception;(18) familial relationships;(19) and child rearing.(20)

   2. The Supreme Court Recognizes a Woman's Constitutional Right to Choose Whether or Not to Terminate Her Pregnancy

      In Roe v. Wade, the Supreme Court recognized that the right of privacy, founded in the Fourteenth Amendment's concept of personal liberty and upheld by years of Supreme Court precedent, is in fact broad enough to encompass a woman's decision whether or not to terminate her pregnancy.(21) For the first time in the United States, laws that called for an absolute proscription on abortion were deemed unconstitutional.(22)

      Although the Court concluded that our right to personal privacy includes the abortion decision, it was made clear that the right is qualified and must be considered against important state interests in regulation.(23) Simply stated, the right to terminate a pregnancy is not absolute.(24) However, where certain fundamental rights are involved, including the right to terminate a pregnancy, the Court has held that any regulations affecting those rights may be justified only by a compelling and legitimate state interest.(25) Also, any legislative enactments must be narrowly drawn to express only those compelling and legitimate state interests at stake.(26)

      As the Justices have noted, a state may properly assert legitimate interests in safeguarding health, in maintaining medical standards, and in protecting potential life.(27) And, at some point during pregnancy, all these interests become sufficiently "compelling" to warrant regulation of the abortion process.(28) To that end, the Court established the trimester framework approach to abortion regulation.(29)

      With respect to the state's legitimate interest in protecting the health of the mother, the point at which the interest became "compelling" was at the end of the first trimester.(30) This was so because until that point in a pregnancy, mortality in abortion could actually be less than mortality in childbirth.(31) Hence, during the first trimester, the abortion decision and any related matters, would be left to the medical judgment of the pregnant women and her doctor, and could not be regulated by the state.(32)

      During the second trimester of pregnancy, a state could regulate the abortion procedures, but only to the extent that the regulation reasonably related to the preservation and protection of the woman's health.(33) Examples of permissible state regulations in this area included requirements concerning the qualifications of the person performing the abortion, the licensure of that person, or the facility in which the procedure is to be performed.(34)

      With respect to the state's legitimate interest in protecting potential life, the "compelling" point was at viability.(35) This was so because until viability, the fetus is incapable of a meaningful life outside of the womb.(36) Hence, for the stage subsequent to viability (approximately the beginning of the third trimester to the end of the pregnancy), the Court held that the State, in promoting its interest in the potentiality of human life, may regulate and even proscribe abortion, except where it is necessary for the preservation of the health of the mother.(37)

   3. A Statute Prohibiting a Particular Method of Abortion Violates a Woman's Fundamental Right to Choose Abortion, as established in Roe v. Wade

      Throughout the seventies and eighties, the essential holding of Roe was consistently reaffirmed.(38) A notable case in the mid-seventies to uphold Roe was Planned Parenthood of Central Missouri v. Danforth.(39) The issue in Danforth concerned a particular section of a Missouri statute regulating abortions that proscribed the use of saline amniocentesis, a method of abortion commonly used after the first twelve weeks of pregnancy.(40) The statute imposed this proscription on the grounds that the technique was deleterious to maternal health.(41)

      The Supreme Court concluded that this proscription was unconstitutional, based on its holding in Roe.(42) The general prohibition of saline amniocentesis failed as a reasonable regulation for the protection of maternal health.(43) The Court reasoned that other permitted methods were more dangerous to the health of the mother and were less widely used and accepted.(44) In fact, the statute did not even prohibit techniques that were many times more likely to result in maternal death, forcing women and their physicians to terminate pregnancies by methods more dangerous to the pregnant woman's health than the method outlawed.(45)

      Instead, the Court noted, the statute was an unreasonable and arbitrary regulation intended to inhibit the majority of second trimester abortions, as 68 percent to 80 percent of all second trimester abortions were effected through the saline amniocentesis procedure.(46)

      Following the Roe trimester framework, as the Court in Danforth did, states could regulate abortions during the second trimester.(47) However, the regulations must be related to protecting a woman's health and may not be detrimental to a woman choosing to undergo an abortion.(48) Thus, the Missouri statute did not withstand constitutional challenge.(49)

   4. The Central Theme of Roe is Upheld, But the Supreme Court Rejects the Trimester Framework, Giving Power Back to the States in the Battle Over Abortion Rights

      In 1992, the issue of abortion again reached the Supreme Court with the watershed case of Planned Parenthood of SE Pennsylvania v. Casey.(50) And, once again, the essential holding of Roe--woman have the fundamental, yet qualified, right to choose abortion(51)--was upheld.(52) However, in this case, the Court asserted that the trimester approach established in Roe(53) undervalued the state's interest in potential life.(54) In another 54 decision, the Court found that to deem unwarranted all governmental attempts to regulate previability abortions solely on behalf of potential life is irreconcilable with the Court's recognition in Roe that there is, in fact, a substantial state interest in protecting potential life throughout the pregnancy.(55) "The woman's liberty is not so unlimited ... that from the outset the State cannot show its concern for the life of the unborn."(56) And with this conclusion, the Court rejected the long-standing trimester framework.(57)

      Again, the Court concluded that the essential holding of Roe should be reaffirmed: women do have the fundamental right to terminate a pregnancy before the fetus attains viability.(58) However, to replace the rejected trimester approach, the majority decided that simple "viability," and not trimesters, would mark the point at which the state's interest in protecting potential life would outweigh the pregnant woman's liberty interest in having an abortion.(59) A woman may choose to terminate her pregnancy previability.(60) Once the fetus becomes viable, however, the state may proscribe abortion altogether.(61) It is important to note that while states may proscribe abortions of viable fetuses, the Court held that those regulations must contain exceptions for pregnancies that endanger the woman's life or health.(62)

      Additionally, the Court gave the states greater latitude in governing previability abortions by holding that states are constitutionally permitted to regulate, but not proscribe, previability abortions based solely on their interest in respecting potential life, so long as the specific regulations do not impose an undue burden on the woman seeking the abortion.(63)

      This brings us to the obvious and often debated question: what constitutes an undue burden.(64) The Court described an undue burden as any state regulation that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.(65) The Court further explained that the only issue at stake...