Stenberg, Attorney General of Nebraska, et al. v. Carhart,
530 U.S. 914Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(2000), is a case heard by the
Supreme Court of the United StatesThe Supreme Court of the United States is the highest judicial body in the United States, and leads the federal judiciary. It consists of the Chief Justice of the United States and eight Associate Justices, who are nominated by the President and confirmed with the "advice and consent" of the Senate...
dealing with a
NebraskaNebraska is a state located on the Great Plains of the Midwestern United States. The state's capital is Lincoln and its largest city is Omaha....
law which made performing partial-birth abortion illegal, without providing exceptions to preserve a woman's health. Nebraska
physicianA physician — also known as medical practitioner, doctor of medicine, medical doctor, or simply doctor — practices the ancient profession of medicine, which is concerned with maintaining or restoring human health through the study, diagnosis, and treatment of disease or injury...
s who performed the procedure contrary to the law were subject to having their medical licenses revoked. Nebraska, like many states, banned the procedure on the basis of public morality. The Court struck down the law, finding the Nebraska statute criminalizing "partial birth abortion[s]" violated the Due Process Clause of the
United States ConstitutionThe Constitution of the United States of America is the supreme law of the United States. It is the foundation and source of the legal authority underlying the existence of the United States of America and the federal government of the United States...
, as interpreted in
Planned Parenthood v. CaseyPlanned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 was a case decided by the Supreme Court of the United States in which the constitutionality of several Pennsylvania state regulations regarding abortion was challenged...
and
Roe v. WadeRoe v. Wade, , a landmark case decided by the United States Supreme Court on the issue of abortion, is one of the most controversial and politically significant cases in U.S. Supreme Court history.In Roe v...
. This case dealt with pre-viability second trimester abortions, whereas most abortions occur during the first trimester.
History
LeRoy CarhartLeRoy Harrison Carhart is an American physician from Nebraska who became well-known for his participation in the Supreme Court cases Stenberg v. Carhart and Gonzales v. Carhart, both of which dealt with intact dilation and extraction , a controversial abortion procedure.-Biography:Carhart is a...
, a Nebraska physician who specialized in late-term abortions, brought suit against
Don StenbergDon Stenberg is a Nebraska attorney and politician. He served as Attorney General of Nebraska from 1991 to 2003. He also served as legal counsel to Governor Charles Thone from 1979 to 1983....
, the
Attorney GeneralIn most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may in addition have executive responsibility for law enforcement or responsibility for public prosecutions.-Usage:The term has traditionally...
of Nebraska, seeking
declaratory judgmentA declaratory judgment is a judgment of a court in a civil case which declares the rights, duties, or obligations of each party in a dispute. It is commonly called a declaratory ruling, a term which also includes decisions of regulatory agencies. A declaratory judgment or ruling is legally...
that a state law banning certain forms of
abortionAn abortion is the termination of a pregnancy by the removal or expulsion from the uterus of a fetus or embryo. An abortion can occur spontaneously due to complications during pregnancy or can be induced, in humans and other species...
was unconstitutional, based on the undue burden test mentioned by a dissenting opinion in
Akron v. Akron Center for Reproductive Health and by the Court in
Planned Parenthood v. CaseyPlanned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 was a case decided by the Supreme Court of the United States in which the constitutionality of several Pennsylvania state regulations regarding abortion was challenged...
. Both a
federal district courtThe 94 United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
and the
U.S. Court of AppealsThe United States courts of appeals are the intermediate appellate courts of the United States federal court system...
ruled in favor of Carhart before the case was appealed to the Supreme Court.
The Nebraska statute prohibited "partial birth abortion", which it defined as any abortion in which the physician "partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery." The most common type of abortion performed is
suction-aspiration abortionVacuum or suction aspiration uses aspiration to remove the contents of the uterus through the cervix. It may be used as a method of induced abortion, a therapeutic procedure used after miscarriage, or a procedure to obtain a sample for endometrial biopsy. The rate of infection is lower than any...
which consists of a vacuum tube inserted into the
uterusThe uterus is a major female hormone-responsive reproductive sex organ of most mammals, including humans. It is within the uterus that the fetus develops during gestation. The term uterus is used consistently within the medical and related professions; the Germanic term, womb is more common in...
; others consist of what is known as "D&E" (
dilation and evacuationDilation and evacuation literally refers to the dilation of the cervix and surgical evacuation of the contents of the uterus...
), which is usually used during the second
trimesterThe term Trimester usually means* A period of 3 months.* The division of the academic year. There is, in the Northern Hemisphere, a winter term , a spring term , a summer term and an autumn term...
because of the increased amount of fetal material. The procedure dilates the
cervixThe cervix is the lower, narrow portion of the uterus where it joins with the top end of the vagina. It is cylindrical or conical in shape and protrudes through the upper anterior vaginal wall. Approximately half its length is visible with appropriate medical equipment; the remainder lies above...
and removes some fetal material with non-vacuum instruments, and, in some cases, uses curettage inside the uterus so that fetal material can be evacuated. Dr. Carhart wanted to use a modified version of this called "D&X" (
Dilation and ExtractionIntact dilation and extraction , also known as intact dilation and evacuation , dilation and extraction , intrauterine cranial decompression and controversially in the United States as partial birth abortion, is a surgical abortion wherein an intact fetus is removed from the uterus via the cervix...
), which, rather than commencing curettage inside the uterus, extracts part of the fetus first and then begins the process of dismemberment. Carhart stated that he wanted to perform this procedure because he believed it would be safer and would involve fewer risks for the women; it lowered the risk of leaving potentially harmful fetal tissue in the uterus, and it minimized the number of instruments physicians needed to use.
Experts in fetal development provide markedly different assessments of the kind and degree of pain (if any) experienced by the fetus (
see Fetal painNeonatal perception is the study of the extent of somatosensory and other perceptual systems during pregnancy. In practical terms, this means the study of fetuses; none of the accepted indicators of perception are present in embryos....
). Although in the second and third trimesters the
nervous systemThe nervous system is a network of specialized cells that communicate information about an organism's surroundings and itself. It processes this information and causes reactions in other parts of the body. It is composed of neurons and other specialized cells called glial cells that aid in the...
is largely in place, the level of consciousness or awareness of the fetus is a matter of conjecture. Experiments aimed at measuring fetal pain have yielded results that are somewhat open to interpretation, given that measurable reactions of the fetus to stimuli may not correspond directly to an adult experience of pain. Many medical authorities affirm that at the stage of pregnancy when this procedure is performed, the fetus has not reached what the medical community has defined as
viabilityViability means in general "capacity for survival" and is more specifically used to mean a capacity for living, developing, or germinating under favorable conditions. The word is specially used in the following contexts:...
, the stage at which a developing fetus can be expected to live if removed from the uterus (usually at five months gestation, with medical assistance, although the viability threshold is retreating with medical advances).
The medical and scientific questions surrounding partial-birth abortion are impacted in the public arena by political and special interest considerations, resulting in a certain degree of media "hype" surrounding this case. Proponents of abortion rights on the one hand and the right-to-life on the other both decry what they describe as "myths" regarding this procedure that have passed into mainstream American debate on the issue.
The U.S. Supreme Court Ruling
The case was argued in 2000, and several issues were brought up during the oral arguments. The first was the lack of an exception for the woman's health. The state of Nebraska took the position that D&X abortions were never medically necessary, meaning that an exception was not needed. Secondly, it was inquired on whether or not the law could be construed to apply to other forms of abortion, in which case it would violate the "right to privacy" interpreted from the Constitution, as described in the
Roe and
Casey decisions. The law had never been certified to the Supreme Court of Nebraska, as it had been challenged two days after the law was passed.
Opinion of the court and concurring opinions
Justice
Stephen BreyerStephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by Democratic President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court.Following a clerkship with Supreme...
, in writing the opinion of the Court, cited
Planned Parenthood v. CaseyPlanned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 was a case decided by the Supreme Court of the United States in which the constitutionality of several Pennsylvania state regulations regarding abortion was challenged...
and said that any abortion law that imposed an undue burden on a woman's "right to choose" (abortion) was unconstitutional. He said that causing those who procure abortions to "fear prosecution, conviction, and imprisonment" was an undue burden, and therefore declared the law to be against the Constitution. Justices
John Paul StevensJohn Paul Stevens is the senior Associate Justice of the Supreme Court of the United States. He joined the Supreme Court in 1975 and is the oldest member of the Court. He was appointed to the Court by Republican President Gerald Ford. Stevens is widely considered to be on the liberal side of the...
,
Ruth Bader GinsburgRuth Joan Bader Ginsburg is an Associate Justice on the Supreme Court of the United States. Ginsburg was appointed by Democratic President Bill Clinton with the support of Republican Judiciary Chairman Senator Orrin Hatch in 1993 and generally votes with the liberal wing of the court...
,
David SouterDavid Hackett Souter David Hackett Souter David Hackett Souter served as an Associate Justice of the Supreme Court of the United States from 1990 until his retirement on June 29, 2009. Appointed by Republican President George H. W. Bush to fill the seat vacated by...
, and
Sandra Day O'ConnorSandra Day O'Connor is an American jurist and was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006...
all agreed that the law was unconstitutional, but Ginsburg wrote a separate opinion, as did O'Connor. Ginsburg stated plainly that a state could not force physicians to use procedures other than what they felt in their own judgment to be the safest, that this was part of the "life and liberty" protected under the Constitution. O'Connor agreed, saying that any such procedural law would have to be applied only to prevent unnecessary partial-birth abortions, and would have to include an exception for the health of the woman (as this law did not). Justices Stevens also filed a separate opinion. He noted that government had no right to force doctors to perform any procedure other than what they felt would be the safest.
Dissents
Justice
Anthony KennedyAnthony McLeod Kennedy is an Associate Justice of the U.S. Supreme Court, having been appointed by Republican President Ronald Reagan in 1988...
dissented. Kennedy claimed this type of law was allowed by their ruling in
Planned Parenthood v. CaseyPlanned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 was a case decided by the Supreme Court of the United States in which the constitutionality of several Pennsylvania state regulations regarding abortion was challenged...
, which allowed laws to preserve prenatal life to a certain extent. He called
Sandra Day O'ConnorSandra Day O'Connor is an American jurist and was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006...
's behavior a "repudiation" of the understandings and assurances given in
Casey. Justice Kennedy also detailed what he deemed a constitutionally protected alternative to partial-birth abortion, as follows:
This was a far cry from Justice
Clarence ThomasClarence Thomas is an Associate Justice of the Supreme Court of the United States, having served since 1991. Justice Thomas is the second African American to serve on the nation's highest court, after Justice Thurgood Marshall, whom he succeeded.Thomas grew up in Georgia, and graduated from...
' dissent, which stated that abortion was not a right contained in the Constitution, and sharply criticized the majority and concurring opinions. Chief Justice
William RehnquistWilliam Hubbs Rehnquist was an American lawyer, jurist, and a political figure who served as an Associate Justice on the Supreme Court of the United States and later as the Chief Justice of the United States. Considered a conservative, Rehnquist favored a federalism under which the states...
, along with
Antonin Scaliais an Associate Justice of the Supreme Court of the United States. He was appointed in 1986 by President Ronald Reagan having previously served on the D.C. Circuit and in the Nixon and Ford administrations, and teaching law at the Universities of Virginia and Chicago...
, and Thomas have consistently said that they do not believe abortion is a protected right, and have pointed out that "privacy" is not explicitly mentioned in the Constitution. Thomas also pointed out in his dissenting opinion that even if abortion was a woman's right, the law in question was not designed to strike at the right itself. He reminded the others that many groups, including even the
American Medical AssociationThe American Medical Association , founded in 1847 and incorporated 1897, is the largest association of physicians and medical students in the United States. While its membership has declined in recent years, it claims approximately 20% of practicing physicians as members...
, had concluded that partial-birth abortion was very different from other forms of abortion, and was often considered
infanticideInfanticide is the practice of someone intentionally killing an infant. Often it is the mother who commits the act, but criminology recognizes various forms of non-maternal child murder. In many past societies, certain forms of infanticide were considered permissible...
. Thomas further noted that the gruesome nature of some partial-birth abortions has caused personal trauma in the doctors performing them. In a short separate opinion, Chief Justice Rehnquist stated that he did not join
Casey but felt that Justice Kennedy had applied its precedent correctly, and thus joined his opinion.
In his dissent, Justice Scalia recalled his prior dissent in
Casey in which he had criticized the undue burden standard as "doubtful in application as it is unprincipled in origin." What constitutes an undue burden is a value judgment, argued Scalia; it should therefore be no surprise that the Court split on whether the Nebraska statute constitutes an undue burden. Scalia moreover chastised Kennedy for feeling betrayed by the majority. Scalia declared that the
Stenberg decision was not "a regrettable misapplication of
Casey,"—as Kennedy claimed—but "
Caseys logical and entirely predictable consequence." Denouncing the undue burden standard of Casey
as illegitimate, Scalia called for Casey to be overruled.
Effects of the Decision
By a 5-4 majority, the Nebraska law was struck down, as were all other state laws banning partial-birth abortion. In 2003, however, the federal government enacted a
Partial-Birth Abortion Ban ActThe Partial-Birth Abortion Ban Act is a United States law prohibiting a form of late-term abortion that the Act calls partial-birth abortion. The U.S. Supreme Court has ruled that the term "partial-birth abortion" in the act pertains to a procedure that is medically called intact dilation and...
. This law did not include an exception for the health of the woman, as Justice O'Connor said it must. Congress inserted findings into the law saying that the procedure is never needed to protect maternal health. Although several federal judges struck down this federal law, citing the precedent of Stenberg v. Carhart
, it was eventually upheld by the Supreme Court in Gonzales v. CarhartGonzales v. Carhart, 550 U.S. 124 , is a United States Supreme Court case which upheld the Partial-Birth Abortion Ban Act of 2003. The case reached the high court after U.S. Attorney General Alberto Gonzales appealed a ruling of the United States Court of Appeals for the Eighth Circuit in favor of...
.
The Supreme Court case of Gonzales v. CarhartGonzales v. Carhart, 550 U.S. 124 , is a United States Supreme Court case which upheld the Partial-Birth Abortion Ban Act of 2003. The case reached the high court after U.S. Attorney General Alberto Gonzales appealed a ruling of the United States Court of Appeals for the Eighth Circuit in favor of...
concerns similar questions as those in Stenberg, but this time in the context of a federal statute. The decision in Gonzales v. Carhart has narrowed the holding in this case.