Stenberg v. Carhart

Carhart, a physician who performed abortions, brought suit challenging the constitutional validity of a Nebraska statute which prohibited non-lifesaving “partial birth abortions.” The statute defined this procedure as “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.” Violation of the law was a felony carrying a substantial fine and prison term of up to 20 years. It also provided for the automatic revocation of a convicted doctor’s license to practice medicine in Nebraska.

Carhart claimed that one of the superior and safer methods of abortion (dilation and extraction) would classify as “partial birth abortion” according to the statute’s definition. Moreover, the prohibited procedure primarily accounted for about 95 per cent of all abortions performed in the United States between 12 to 20 weeks of gestational age. Carhart alleged that the prohibition would therefore impose an undue burden on a woman’s ability to choose an abortion. Conversely, the State claimed the prohibition showed “concern for the life of the unborn,” prevented “cruelty to partially born children,” and preserved “the integrity of the medical profession.”

The Court of Appeals affirmed the District Court decision that the statute was unconstitutional. The State appealed to the Supreme Court.

The Court first examined whether the prohibition on “partial birth abortions” imposed an unconstitutional undue burden on women seeking abortions. The Court held that a prohibition on “partial birth abortions” which included the most commonly used method for performing previability second semester abortions, dilation and extraction, unduly burdened a woman’s right to choose an abortion. It also held that the prohibition would subject physicians who performed the procedure to a “fear [of] prosecution, conviction and imprisonment,” which further imposed an undue burden on a woman’s right to choose an abortion.

The Court then examined whether the prohibition imposed an unconstitutional undue burden because it banned use of the procedure even when necessary for the preservation of the health of the woman. Applying Planned Parenthood v. Casey, 505 U.S. 833 (1992), the Court held that the Nebraska statute lacked the requisite exception allowing the procedure to be conducted if “necessary for the preservation of the woman’s health.” The Court referred to a substantial body of medical authority, and found that banning the dilation and extraction procedure, without a health exception, could endanger women’s health as it may be the safest procedure in some instances. As a result, the State failed in its argument that “safe alternatives remain[ed] available,” and that the ban “would create no risk to the health of women.”

Lastly, the Court did not address the fact that the statute failed to distinguish between previability and postviability “partial birth abortions.” This is notable given that the Court had previously held (in Planned Parenthood v. Casey) that the State’s interest in regulating abortion previability was considerably weaker than doing so postviability.

“In sum, Nebraska has not convinced us that a health exception is ‘never necessary to preserve the health of women.’ Reply Brief for Petitioners 4. Rather, a statute that altogether forbids D&X creates a significant health risk. The statute consequently must contain a health exception. This is not to say, as Justice Thomas and Justice Kennedy claim, that a State is prohibited from proscribing an abortion procedure whenever a particular physician deems the procedure preferable. By no means must a State grant physicians ‘unfettered discretion’ in their selection of abortion methods. Post, at 969 (Kennedy, J., dissenting). But where substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women's health, Casey requires the statute to include a health exception when the procedure is ‘ ‘necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’ ’ 505 U. S., at 879. Requiring such an exception in this case is no departure from Casey, but simply a straightforward application of its holding.” 530 U.S., pp 937 - 938.

“In sum, using this law some present prosecutors and future Attorneys General may choose to pursue physicians who use D&E procedures, the most commonly used method for performing previability second trimester abortions. All those who perform abortion procedures using that method must fear prosecution, conviction, and imprisonment. The result is an undue burden upon a woman's right to make an abortion decision. We must consequently find the statute unconstitutional.” 530 U.S., p. 946.

“Although much ink is spilled today describing the gruesome nature of late-term abortion procedures, that rhetoric does not provide me a reason to believe that the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome, or less respectful of ‘potential life"’ than the equally gruesome procedure Nebraska claims it still allows. Justice Ginsburg and Judge Posner have, I believe, correctly diagnosed the underlying reason for the enactment of this legislation—a reason that also explains much of the Court's rhetoric directed at an objective that extends well beyond the narrow issue that this case presents. The rhetoric is almost, but not quite, loud enough to obscure the quiet fact that during the past 27 years, the central holding of Roe v. Wade, 410 U. S. 113 (1973), has been endorsed by all but 4 of the 17 Justices who have addressed the issue. That holding—that the word ‘liberty’ in the Fourteenth Amendment includes a woman's right to make this difficult and extremely personal decision—makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty. But one need not even approach this view today to conclude that Nebraska's law must fall. For the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational. See U. S. Const., Amdt. 14.” 530 U.S., pp. 946 - 947