Carhart's story wouldn't have fooled Bullwinkle, but he managed to find five people smart enough to graduate from law school who were willing to run with it. Pro-Life Guide Christina Dunigan offers an "editorial rant" on the case.
Dateline: 6/28/00
In a 5-4 decision, the Supreme Court struck down Nebraska's ban on "partial-birth" abortions. Justice Stephen Breyer, writing for the majority, said that the law results in an "undue burden upon a woman's right to make an abortion decision." Concurring were Justices Stevens, O'Connor, Souter, and Ginsburg. Dissenting were Justices Rehnquist, Scalia, Kennedy, and Thomas.
Background
The "undue burden" standard mentioned by Justice Breyer resulted from the last case on abortion rights heard by the Supreme Court in 1992, Planned Parenthood v. Casey. Prior to that case, the standard for review of laws restricting or regulating abortion was "strict scrutiny" - meaning that any such laws would have to be proven to address a compelling state interest, and that there was no alternate way of addressing the state's interest
That standard came from the landmark Roe v. Wade ruling, which additionally categorized "state interests" in regulating abortion according to a trimester system. This system held that the state had no interests which would permit it to restrict abortion in the first three months, could only restrict or regulate abortion in the second trimester to protect or promote the health of the mother, and could ban abortions after fetal viability (the point at which the fetus could survive outside the uterus) as long as such laws provided exceptions for the life or health of the woman.
In Casey, the Court essentially abandoned the trimester system, and reduced the standard for determining the constitutionality of abortion restrictions to an "undue burden" standard. This ruling meant that state regulations or restrictions on abortions are permissible at any time during the pregnancy as long as they do not place an "undue burden" on a woman's ability to obtain an abortion prior to fetal viability.
The Casey decision held that mandatory waiting periods, and the requirement that abortion providers distribute state-sponsored literature aimed at dissuading women from abortion, were not undue burdens. (The court had previously held that states cannot give husbands veto power over their pregnant wives' decision to abort their pregnancies.)
Other restrictions upheld by lower courts based on the Casey decision include parental consent and notification laws for minor women, and restrictions or prohibitions on state funding for abortions for poor women.
Stenberg v. Carhart
Thirty-one states have passed so called "partial birth abortion" bans. Legal challenges to those bans have been filed in 21 of those states, and the laws have been blocked in 20 states. Nebraska's "partial birth abortion" law was challenged by Dr. LeRoy Carhart, represented by the Center for Reproductive Law and Policy (CRLP), and held to be unconstitutional in September of 1999 by the Eight Circuit of the U.S. Court of Appeals. The Supreme Court consideration of this case, and "partial birth abortion" bans in general, was initiated by a conflict between that decision and a decision by the Seventh Circuit the following month which upheld virtually identical laws in Illinois and Wisconsin. U.S. Supreme Court Justice John Paul Stevens issued a stay blocking the Seventh Circuit's decision on November 30, 1999, pending review by the full Supreme Court.
Today, the Court found that the ban on "partial birth abortions" did place an "undue burden" on women seeking abortions. The opinion primarily addressed two points:
1) The prohibited procedure, as decribed in the law, included methods of abortion used at stages of the pregnancy prior to fetal viability, and that a substantial body of medical evidence indicates these procedures may be safer than the methods which would not be prohibited under this law. Thus, the law may require doctors to perform more dangerous procedures which would endanger the woman's health.
Nebraska argued that, although the description in the law could cover the other procedures, that it was the "intent" that it would only cover one method of abortion, in which all of the fetus except the head was delivered into the vagina. The Court found this stated "intent" to narrow the law insufficient
The Court rejects the Nebraska Attorney General's arguments that the state law does differentiate between the two procedures--i.e., that the words "substantial portion" mean "the child up to the head," such that the law is inapplicable where the physician introduces into the birth canal anything less than the entire fetal body--and that the Court must defer to his views. The Court's case law makes clear that the Attorney General's narrowing interpretation cannot be given controlling weight.
2) The Nebraska law provided no exception to protect the health of the woman seeking an abortion.
Nebraska offered eight arguments detailing why its law required no "health exception," and the Supreme Court addressed each in its majority opinion:
The eight arguments are insufficient to demonstrate that Nebraska's law needs no health exception. For one thing, certain of the arguments are beside the point. The D&X procedure's relative rarity (argument (1)) is not highly relevant. The State cannot prohibit a person from obtaining treatment simply by pointing out that most people do not need it. And the fact that only a "handful" of doctors use the procedure (argument (2)) may reflect the comparative rarity of late second term abortions, the procedure's recent development, the controversy surrounding it, or, as Nebraska suggests, the procedure's lack of utility. For another thing, the record responds to Nebraska's (and amici's) medically based arguments. As to argument (3), the District Court agreed that alternatives, such as D&E and induced labor are "safe," but found that the D&X method was safer in the circumstances used by Carhart. As to argument (4)--that testimony showed that the statutory ban would not increase a woman's risk of several rare abortion complications--the District Court simply relied on different expert testimony than the State. Argument (5)--the assertion of amici Association of American Physicians and Surgeons et al. that elements of the D&X procedure may create special risks--is disputed by Carhart's amici, including the American College of Obstetricians and Gynecologists (ACOG), which claims that the suggested alternative procedures involve similar or greater risks of cervical and uterine injury. Nebraska's argument (6) is right--there are no general medical studies documenting the comparative safety of the various abortion procedures. Nor does the Court deny the import of the American Medical Association's (AMA) recommendation (argument (7)) that intact D&X not be used unless alternative procedures pose materially greater risk to the woman. However, the Court cannot read ACOG's qualification that it could not identify a circumstance where D&X was the "only" life- or health-preserving option as if, according to Nebraska's argument (8), it denied the potential health-related need for D&X ACOG has also asserted that D&X can be the most appropriate abortion procedure and presents a variety of potential safety advantages. Pp. 15-18.
It is important to note that the Court did not substantially address the constitutionality of prohibiting any particular method of abortion, nor did it address whether the Nebraska law might have been held constitutional if it had provided an exception for the health of the mother. In a separate concurring opinion, Justice O'Connor notes that several states have more narrowly tailored laws which do include a "health" exception, and states:
If Nebraska's statute limited its application to the D&X procedure and included an exception for the life and health of the mother, the question presented would be quite different than the one we face today.
This would seem to invite further challenges to abortion rights by using laws which include a health exception and can be shown to restrict only the procedure medically known as "intact dilatation and extraction or D&X" and referred to by abortion opponents as "partial-birth abortion." And it would seem to indicate that at least one of the "swing votes" in this decision is open to finding such laws to be constitutional.
This decision strikes down one heavy-handed restriction on a woman's right to choose to terminate a pregnancy. But the only clear message that the Supreme Court has sent today is that the battle is far from over.
More Supreme Court News: Bubble Law Upheld
Articles On This Case
Carhart And His Fairy Godmothers
Carhart's story wouldn't have fooled Bullwinkle, but he managed to find five people smart enough to graduate from law school who were willing to run with it. Pro-Life Guide Christina Dunigan offers an "editorial rant" on the case.
"Partial Birth" Abhorrence
Now that the Supreme Court has tacitly approved the grisly procedure known as partial-birth abortion, how will the abortion debate affect the presidential campaign? Conservative Politics Guide Ted Gausmann takes a look.
'Partial-Birth' Abortion Ban Struck Down
The decision was no surprise, but the close 5-4 vote was. Pro-choice Guide Margaret Sykes looks at the vote and what it may mean for the future.
Supreme Court Strikes Anti-Abortion Law
The U.S. Supreme Court today issued a 5-4 ruling striking down as
unconstitutional a state law prohibiting the procedure referred to as a
"partial birth abortion" in the state of Nebraska. US Government Guide
Robert Longley reports.
Supreme Court Strikes Down Abortion Ban
CNN first report on the Court's action to strike down the Nebraska ban.
Nebraska Abortion Law Deceptive
The Nebraska abortion law recently argued before the US Supreme Court may at first appear to restrict late-term abortions. In fact, Nebraska's so-called ''partial-birth abortion'' ban would outlaw a selected abortion procedure at any stage of pregnancy, even a few weeks after conception and even if a doctor concluded that the method was the safest choice for the patient.
Semantic Absurdity and Abortion
Two columnists at Brown Daily Herald certainly go a long way to illustrate how simple semantics can be used to obfuscate Steinberg v. Carhart, the Partial Birth Abortion case to be decided by the Supreme Court. Tony Charuvastra & Jen Swedish lament that "statutes such as the Nebraska law place a woman’s vagina under the jurisdiction and control of the state, while curiously leaving the uterus alone."
Supreme Court Dispatch: Partial-Ban Aborted
A look at the gulf between what's at stake in Stenberg vs. Carhart and what the public believes is at stake.
Supreme Ct. to Hear "Partial-Birth Abortion" Ban
In the first major abortion case since 1992, the Supreme Court
will hear oral arguments on whether states can place additional
restrictions on pre-viability abortions on Tuesday.
Background and Reference
Chronology of Supreme Court Abortion Decisions A chronology of major abortion decisions from the Supreme Court.
CRLP Special Report: "Partial-Birth Abortion" Bans
An extensive report by Center for Reproductive Law and Policy, who represented the plaintiff, LeRoy Carhart, M.D. in the challenge to Nebraska's "partial-birth abortion" ban. Includes links to court documents, statements and excerpts from the Oral Arguments before the Supreme Court.
Late Term Confusion, Partial Birth Lies
Comprehensive two-part article about the deliberately-created confusion between a time of abortion (late term) and a method of abortion ("partial birth"), from About Pro-Choice Views Guide Margaret Sykes.
"Partial Truth" Abortion Laws
Women's eNews coverage of a speech by Dr. LeRoy Carhart to pro-choice Republicans in New York on May 30. Dr. Carhart warned his audience that "partial-birth" abortion laws are so vague that they criminalize all abortions. He also detailed how he has lost two clinics and continues to live with a daily barrage of harassment and threats of violence.
Supreme Court of the United States
The official web site of the Supreme Court offers information for both the general public and for lawyers concerned with cases before the court.
What the "Partial-Birth" Abortion Case is Really About
Michael C. Dorf, Vice Dean and Professor of Law at Columbia University, argues that the Stenberg vs. Carhart decision may actually turn on a technical lawyer’s question: What standard should the federal courts use in deciding so-called "facial challenges" to state laws?
Relevant Supreme Court Opinions