Stenberg v. Carhart
530 U.S. 914, 2000 U.S. LEXIS 4484, 147 L. Ed. 2d 743 (2000)
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Rule of Law:
A state law regulating abortion procedures is unconstitutional if it lacks an exception for the preservation of the mother's health. A law also imposes an unconstitutional undue burden if its language is so broad that it has the effect of placing a substantial obstacle in the path of a woman seeking a pre-viability abortion, such as by banning the most common and safest procedure for that stage of pregnancy.
Facts:
- Nebraska enacted a law criminalizing the performance of a "partial birth abortion."
- The statute defined the procedure as one in which a physician "partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery."
- This was further defined as delivering "a living unborn child, or a substantial portion thereof" into the vagina for the purpose of performing a procedure that will kill the child.
- Dr. Leroy Carhart, a Nebraska physician, performed abortions, including the Dilation and Extraction (D&X) procedure, which the law targeted, and the more common Dilation and Evacuation (D&E) procedure.
- The D&E procedure, which accounts for the vast majority of second-trimester abortions, often involves pulling a fetal limb or other "substantial portion" of a living fetus through the cervix into the vagina before fetal demise occurs.
- The Nebraska law provided an exception to save the life of the mother but contained no exception for the preservation of the mother's health.
- Violation of the law was classified as a felony, punishable by up to 20 years in prison and automatic revocation of the physician's medical license.
Procedural Posture:
- Dr. Leroy Carhart filed a lawsuit against Nebraska officials in the U.S. District Court for the District of Nebraska, seeking to have the state's 'partial birth abortion' statute declared unconstitutional and to enjoin its enforcement.
- After a trial, the District Court found the statute unconstitutional and issued a permanent injunction against its enforcement.
- Nebraska officials (the appellants) appealed the decision to the U.S. Court of Appeals for the Eighth Circuit.
- The Eighth Circuit affirmed the District Court's judgment, agreeing that the statute was unconstitutional.
- The U.S. Supreme Court granted certiorari to review the case.
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Issue:
Does a state statute that bans "partial birth abortion" violate the Constitution by creating an undue burden on a woman's right to an abortion when it lacks an exception for preserving the mother's health and is worded so broadly that it could be interpreted to prohibit the most common method of second-trimester abortion (D&E)?
Opinions:
Majority - Justice Breyer
Yes. The Nebraska statute is unconstitutional because it lacks a necessary health exception and imposes an undue burden on a woman's right to choose by effectively banning the more common D&E procedure. First, precedent established in Roe and affirmed in Casey requires that abortion regulations include an exception to preserve the health of the mother, not just her life. Given that substantial medical authority suggests the D&X procedure is safer for some women in some circumstances, a state cannot ban it without providing a health exception. Second, the statute's language, specifically its prohibition on delivering a "substantial portion" of a fetus, is not limited to the D&X procedure and is broad enough to encompass the common D&E procedure. By banning the most frequently used method for second-trimester abortions, the law creates a substantial obstacle for women seeking an abortion, thereby imposing an undue burden in violation of Casey.
Concurring - Justice Stevens
Yes. The statute is unconstitutional because the state's distinction between the D&X and D&E procedures is irrational. The notion that one of these equally gruesome procedures is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is irrational and violates the Fourteenth Amendment.
Concurring - Justice O'Connor
Yes. The statute is unconstitutional on two independent grounds: it lacks a required exception for the health of the mother, and it imposes an undue burden by covering the D&E procedure. However, a more narrowly tailored statute that only proscribed the D&X method and included a health exception would likely be constitutional, as prohibiting that single procedure would not be a substantial obstacle if other safe abortion methods remained available.
Concurring - Justice Ginsburg
Yes. The statute is unconstitutional because it serves no legitimate purpose of protecting fetal life or maternal health; it only targets a method. The law's real purpose is to chip away at the abortion right protected by Roe and Casey. When a law burdens a constitutional right merely to express hostility to that right, the burden is undue.
Dissenting - Chief Justice Rehnquist
No. The statute is constitutional. While continuing to believe Casey was wrongly decided, Chief Justice Rehnquist stated that the dissents by Justices Kennedy and Thomas correctly applied Casey's principles in upholding the Nebraska law.
Dissenting - Justice Scalia
No. The statute is constitutional. The majority's holding is an absurd and predictable consequence of Casey's 'undue burden' test, which is a standardless value judgment by unelected judges. The Constitution does not address abortion, and the matter should be returned to the states to decide.
Dissenting - Justice Kennedy
No. The statute is constitutional. The majority gives insufficient weight to Nebraska's legitimate interests in respecting potential life and preserving the integrity of the medical profession. The statute's language, read correctly, applies only to the D&X procedure, not the D&E. Furthermore, the majority is wrong to require a health exception based on conflicting medical opinions, which effectively gives a single physician veto power over state law, contrary to the principles of Casey.
Dissenting - Justice Thomas
No. The statute is constitutional. The majority's decision wrongly expands Casey's requirements by mandating a health exception for a specific method when other safe methods are available. The statute's plain language, including terms like 'delivers' and the timing of the act, clearly distinguishes the banned D&X procedure from the D&E procedure. The law does not create a substantial obstacle to abortion and should be upheld as a valid expression of the state's profound respect for fetal life.
Analysis:
This decision solidified and clarified the scope of the "undue burden" test from Planned Parenthood v. Casey. It established that a state regulation of a specific abortion method creates an undue burden if it is so vaguely or broadly written that it effectively bans the most common and safe procedures available. Crucially, the Court held that the health exception required by Casey applies not just to laws banning abortion outright, but also to laws regulating specific procedures, especially where there is a credible medical debate about the relative safety of the banned procedure. This ruling significantly limited states' ability to ban specific abortion methods based on moral or symbolic objections if doing so could compromise maternal health, setting the stage for the next legal battle in Gonzales v. Carhart.
