Stenberg, Donald, Nebraska Atty General v. Carhart, Leroy, et al. (06/28/2000)

Question presented: Whether a Nebraska law outlawing "partial-birth abortions" is unconstitutionally overbroad by putting an undue burden on women seeking abortions?

By Greg Jonsson & Allison Pries, Medill News Service

On June 9, 1997, Nebraska's Governor signed into law a bill enacted by the Nebraska Legislature prohibiting "partial-birth abortion." When the legislature passed the bill only six days earlier, it had incorporated an emergency clause making it effective upon the governor's signature.

Immediately thereafter, LeRoy Carhart, a doctor who performs abortions at a clinic in Bellevue, Neb., sued, claiming the law was unconstitutionally vague and placed an undue burden on himself and female patients seeking abortions. U.S. District Judge Richard Kopf enjoined the state from prosecuting Carhart during the time it took for him to decide the case.

The critical issue stems from two abortion techniques used in the second trimester. In the much more common dilation and evacuation (D&E) procedure, the fetus is pulled into the vagina and dismembered. In the dilation and extraction (D&X) procedure, the fetus is pulled into the vagina, where the skull is emptied by the doctor.

The medical community agrees that the D&E procedure is the best choice for second-trimester abortions.

The U.S. Supreme Court has made it unconstitutional to prohibit abortions, but the Court has allowed states to limit procedures as long as those limits don’t cause an "undue burden" on the right of a woman to choose. Carhart argued that the state, in trying to ban the D&X procedure, also banned the D&E procedure, thereby placing an undue burden on him and his patients.

After holding a trial on the merits, the district judge issued his ruling more than a year after the law was passed, holding it unconstitutional, enjoining its enforcement and awarding attorney's fees and costs to Carhart.

A unanimous 8th Circuit Court of Appeals panel affirmed, also holding the law unconstitutional. "Because we are holding the law unconstitutional on undue-burden grounds, it is not necessary for us to discuss the vagueness issue," the opinion stated.

The appeals court noted that the Nebraska law defines the partial-birth abortions it bans as any procedures that "partially deliver vaginally a living unborn child before killing the unborn child and completing the delivery."

"The law refers to 'partial-birth abortion,' but this term, though widely used by lawmakers and in the popular press, has no fixed medical or legal content," wrote Judge Richard Arnold. "The closest thing we have to a medical definition comes from the American College of Obstetricians and Gynecologists (ACOG). The ACOG definition describes a method of abortion (commonly called dilation and extraction, or D&X) involving extraction, from the uterus and into the vagina, of all of the body of a fetus except the head, following which the fetus is killed by extracting the contents of the skull.

"The difficulty," the opinion continued, "is that the statute covers a great deal more. It would also prohibit, in many circumstances, the most common method of second-trimester abortion, called a dilation and evacuation (D&E)."

In holding Nebraska's law an unconstitutionally undue burden on the right to an abortion, the appeals court rejected Nebraska’s argument that Roe v. Wade doesn’t apply to partial-birth abortion. The state claimed that the U.S. Supreme Court referred only to the "unborn." Once substantial parts of a live fetus have passed into the vagina from the uterus, the fetus has been born, the state argued.

The appeals court said this argument was outside the bounds of its decision, finding that the term "born" most naturally applies to a viable fetus, and that the case before them applied to nonviable fetuses.

About 30 states have passed laws banning "partial-birth" abortions, but many have been struck down as unconstitutional.

The appeals court’s decision joined similar decisions in other circuits. Then on Oct. 26, 1999, the 7th Circuit Court of Appeals issued an opinion upholding similar statutes in Wisconsin and Illinois, placing it in apparent conflict with the other circuits.

The U.S. Supreme Court granted certiorari in the Nebraska case on Jan. 14, 2000 South Carolina, Idaho, Louisiana, Ohio, Pennsylvania, Rhode Island, South Dakota, Utah have joined the appeal as amici curiae.

On June 28, 2000 a sharply divided Court struck down the Nebraska statute prohibiting partial birth abortions because it placed an undue burden on a woman’s right to have an abortion and did not allow for exception in cases of threatened health.

The 5-4 vote included eight separate opinions, with Justice David Souter the only justice to not put his position in his own words. The majority opinion holding the "partial birth abortion" statute unconstitutional was written by Justice Stephen Breyer and joined by Justices John Paul Stevens, Sandra Day O'Connor and Ruth Bader Ginsburg. In dissent, Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy and Chief Justice William Rehnquist each contributed.

Though the Nebraska statute directly prohibited only the D&X (dilation and extraction) procedures, it also could be used by prosecutors to pursue doctors who use D&E procedures, the most commonly used method for performing early second trimester abortions, Justice Breyer found for the majority. It was that possibility that the majority found to be an unconstitutional "undue burden" on a woman's right to an abortion.

"All those who perform abortion procedures using that method must fear prosecution, conviction, and imprisonment," wrote Breyer. "The result is an undue burden upon a woman’s right to make an abortion decision."

Concurring, Justice O’Connor wrote "a ban on partial-birth abortion that only proscribed the D&X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional in my view."

"This law does not save any fetus from destruction, for it targets only a ‘method of performing abortion.’…Nor does the statue seek to protect the lives or health of pregnant women." Justice Ginsburg wrote.

"This is a victory for all Americans who believe that the government must not be allowed to meddle in private medical decisions best left to women, their families and their doctors," Dr. Carhart said in a written statement. "We as a society cannot afford to slip back to the days when women were sacrificed by illegal abortion. I saw the human toll of that inhumane policy and I assure you we do not want to return to that terrible time."

The dissents were bristling.

Chief Justice Rehnquist wrote: "Requiring Nebraska to defer to Dr. Carhart’s judgment is no different than forbidding Nebraska from enacting a ban at all; for it is now Dr. LeRoy Carhart who sets abortion policy for the State of Nebraska, not the legislature or the people."

In his dissent Justice Antonin Scalia said he was optimistic that the majority opinion would would day "be assigned it's right place in history" and be overturned in disgrace.

"The method of killing a human child–one cannot even accurately say an entirely unborn human child–proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion," wrote Scalia. "The notion that the Constitution of the United States, designed, among other things, 'to establish Justice, insure domestic Tranquility, . . .and secure the Blessings of Liberty to ourselves and our Posterity,' prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd."

In summing up his dissent, Scalia returned to his argument that the Court's 1992 decision in Casey, which established the "undue burden" test should be overruled.

The Casey opinion placed Justices O'Connor, Souter and Kennedy as the swing votes whose unified stand created the undue burden test in the first place.

This case split them, with Justice Kennedy shifting to the dissent that urged that the "partial birth" statute should be upheld.

"The majority views the procedure from the perspective of the abortionist, rather than from the perspective of a society shocked when confronted with a new method of ending human life," Justice Kennedy wrote in his dissent.

In his opinion for the Court, Justice Breyer recognized how divisive the abortion question is, not just for the Court, but for the nation:

"We understand the controversial nature of the problem. Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child; they recoil at the thought of a law that would permit it. Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering. Taking account of these virtually irreconcilable points of view, aware that constitutional law must govern a society whose different members sincerely hold directly opposing views, and considering the matter in light of the Constitution’s guarantees of fundamental individual liberty, this Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman’s right to choose."