Stenberg v. Carhart
120 S. Ct. 2597, 147 L. Ed. 2d 743, 2000 U.S. LEXIS 4484 (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 creates an unconstitutional undue burden if its language is so ambiguous that it could be interpreted to ban common and safe abortion procedures for a given stage of pregnancy.
Facts:
- Nebraska enacted a law criminalizing the performance of a 'partial birth abortion.'
- The law defined the 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 kills the child.
- The statute contained an exception for procedures necessary to save the mother's life, but no exception for the preservation of the mother's health.
- Dr. Leroy Carhart, a Nebraska physician, performed abortions, including the common second-trimester procedure Dilation and Evacuation (D&E) and a less common procedure known as Dilation and Extraction (D&X), which is also referred to as 'intact D&E.'
- The D&E procedure often involves pulling a 'substantial portion' of a living fetus, such as a limb, into the vagina before fetal demise.
- Dr. Carhart believed that in some circumstances, the D&X procedure was safer for the woman than other available procedures.
- A violation of the Nebraska law was classified as a felony, punishable by up to 20 years in prison, a fine, and automatic revocation of the physician's medical license.
Procedural Posture:
- Dr. Leroy Carhart sued Don Stenberg, the Attorney General of Nebraska, in the U.S. District Court for the District of Nebraska.
- Carhart sought a declaratory judgment that the Nebraska 'partial birth abortion' statute was unconstitutional and an injunction to prevent its enforcement.
- After a trial, the District Court held the statute unconstitutional and permanently enjoined Stenberg from enforcing it.
- Stenberg, as the appellant, appealed the decision to the U.S. Court of Appeals for the Eighth Circuit.
- The Eighth Circuit affirmed the District Court's judgment, finding the law unconstitutional.
- The U.S. Supreme Court granted Stenberg's petition for a writ of certiorari to review the Eighth Circuit's decision.
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Issue:
Does a Nebraska statute that criminalizes the performance of a 'partial birth abortion' violate the U.S. Constitution by lacking an exception for the preservation of the mother's health and by imposing an undue burden on a woman's right to choose an abortion?
Opinions:
Majority - Justice Breyer
Yes, the Nebraska statute violates the Constitution. The law is unconstitutional for two independent reasons. First, it lacks any exception for the preservation of the mother's health. Citing Planned Parenthood v. Casey, the Court held that where substantial medical authority supports the proposition that a banned procedure may be safer for some women, a health exception is constitutionally required. Second, the statute imposes an undue burden on a woman's right to choose an abortion because its language, specifically the phrase 'substantial portion thereof,' is so broad and vague that it also covers the common Dilation and Evacuation (D&E) procedure. Banning D&E, the most common method for second-trimester abortions, places a 'substantial obstacle' in the path of a woman seeking an abortion, which violates the standard set in Casey. The Court rejected the Attorney General's proposed narrowing construction of the statute as unreasonable and not binding on state courts or prosecutors.
Concurring - Justice Stevens
Yes, the Nebraska statute violates the Constitution. The state has no rational, legitimate interest in banning one gruesome procedure (D&X) while permitting another, equally gruesome procedure (D&E). The distinction is irrational, and the law's true purpose appears to be hostility towards the abortion right itself, not the regulation of a specific medical technique.
Concurring - Justice O'Connor
Yes, the Nebraska statute violates the Constitution. The statute is unconstitutional on two independent grounds consistent with the majority opinion: it lacks a necessary health exception and its broad language impermissibly burdens the D&E procedure, creating a substantial obstacle. However, a more narrowly tailored statute that proscribed only the D&X procedure and included an exception to preserve the life and health of the mother would likely be constitutional, as it would not pose a substantial obstacle to obtaining a safe abortion.
Concurring - Justice Ginsburg
Yes, the Nebraska statute violates the Constitution. The law does not save any fetus from destruction or protect women's health; its only purpose is to 'chip away' at the right to choose an abortion established in Roe v. Wade. A state regulation that has the purpose of placing a substantial obstacle in the path of a woman seeking an abortion is an undue burden, and this statute prevents a woman from choosing the procedure her doctor reasonably believes will best protect her, thus hindering her free choice.
Dissenting - Chief Justice Rehnquist
No, the Nebraska statute does not violate the Constitution. Although Planned Parenthood v. Casey was wrongly decided, its principles, when correctly applied, would lead to upholding this law. The dissents of Justice Kennedy and Justice Thomas correctly apply Casey's framework.
Dissenting - Justice Scalia
No, the Nebraska statute does not violate the Constitution. The notion that the Constitution prohibits states from banning this 'visibly brutal means of eliminating our half-born posterity is quite simply absurd.' The 'undue burden' test from Casey is a standardless value judgment made by unelected lawyers, not a principle of law. Casey must be overruled, and the issue of abortion regulation should be returned to the people in each state to decide.
Dissenting - Justice Kennedy
No, the Nebraska statute does not violate the Constitution. The majority repudiates Casey by failing to accord any weight to Nebraska's legitimate interests in expressing respect for life, drawing a moral line against a procedure that resembles infanticide, and preserving the integrity of the medical profession. The law does not impose an undue burden because safe alternative procedures like D&E remain available, and the medical evidence that D&X is safer is unsubstantiated and highly contested. Furthermore, the statute's language, when read in context, clearly targets only the D&X procedure ('delivery' of an intact fetus) and does not apply to the dismemberment involved in D&E.
Dissenting - Justice Thomas
No, the Nebraska statute does not violate the Constitution. The majority's decision is a reinstitution of the pre-Casey, abortion-on-demand era. The statute's plain language, read as a whole, unambiguously applies only to the D&X procedure and not D&E, as D&E involves dismemberment, not 'delivery.' Even if the statute were ambiguous, it should be construed narrowly to avoid unconstitutionality. The majority's creation of a health exception for when one procedure is merely 'safer' than another is an unprecedented expansion of Casey, which only required an exception when continuing the pregnancy itself endangered a woman's health. Because safe alternatives to D&X exist, the ban does not create a substantial obstacle.
Analysis:
This decision significantly clarified and arguably expanded the 'undue burden' standard from Planned Parenthood v. Casey. It established that the lack of a maternal health exception can operate as a per se undue burden, particularly when there is a division of medical opinion on the safety of a banned procedure. The ruling also underscored the judiciary's role in scrutinizing the text of abortion statutes for vagueness and potential overbreadth, refusing to accept narrowing constructions from state officials that are not clearly supported by the statutory language. This set a high bar for states attempting to ban specific abortion methods, requiring both precise drafting and a health exception, which strengthened the constitutional protections for abortion access.
