530 U.S. 914 (2000)
In 1999 the Nebraska Legislature enacted a statute that prohibits any partial birth abortion.
The statute defines partial birth abortion as an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery.1 The statute provides an exception only when the procedure is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.2 Violation of the statute is a Class III felony carrying a prison term of up to twenty years, a fine of up to twenty-five thousand dollars, and automatic revocation of the physician's license to practice medicine in Nebraska.3
Dr. Leroy Carhart is a Nebraska physician who performs abortions in a clinical setting.4 He brought suit in federal district court seeking a declaration that the Nebraska statute violates the Federal Constitution and an injunction forbidding its enforcement.5 After a trial on the merits during which both sides presented several expert witnesses, the District Court held the statute unconstitutional.6 The Eighth Circuit affirmed the judgment of the District Court.7
The evidence at trial addressed several abortion procedures used after the first trimester.8 The most common second-trimester method is dilation and evacuation, or D&E, in which the cervix is dilated and instruments are used to remove fetal tissue, often requiring dismemberment.9 A variation known as intact D&E or D&X involves removing the fetus intact, usually after collapsing the skull, and is used after approximately sixteen weeks of gestation.10 Dr. Carhart testified that he attempts to use the intact D&E procedure in the 10 to 20 cases a year that present to Dr. Carhart because it reduces the risk of injury from sharp bone fragments, minimizes instrument passes, and lowers the chance of leaving retained tissue.11
The District Court found that the banned procedure is sometimes safer than other methods for women undergoing abortions between twelve and twenty weeks of gestation.12 It credited testimony that the intact D&E procedure reduces operating time, blood loss, risk of infection, complications from bony fragments, and instrument-inflicted damage to the uterus and cervix.13 The court also noted that a select panel of the American College of Obstetricians and Gynecologists had concluded the procedure may be the best or most appropriate in particular circumstances.14 The Court of Appeals accepted these findings.15
The Supreme Court granted certiorari to review the judgment of the Court of Appeals.16
Whether the Nebraska statute lacks the requisite exception for the preservation of the health of the mother?17
A statute regulating abortion must contain an exception where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 879 (1992); Roe v. Wade, 410 U. S. 113, 164–165 (1973).18
Yes. The Nebraska Legislature enacted the statute in 1999.19 The law prohibits any partial birth abortion and defines the procedure as one in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery.20 The statute provides an exception only when the procedure is necessary to save the life of the mother.21 Violation of the law is a Class III felony that carries a prison term of up to twenty years, a fine of up to twenty-five thousand dollars, and automatic revocation of the physician's license to practice medicine in Nebraska.22
Dr. Leroy Carhart, a Nebraska physician who performs abortions in a clinical setting, brought suit in federal district court.23 He sought a declaration that the Nebraska statute violates the Federal Constitution and an injunction forbidding its enforcement.24 After a trial on the merits during which both sides presented several expert witnesses, the District Court held the statute unconstitutional. The Eighth Circuit affirmed the judgment of the District Court.
The evidence at trial addressed several abortion procedures used after the first trimester. The most common second-trimester method is dilation and evacuation, or D&E, in which the cervix is dilated and instruments are used to remove fetal tissue, often requiring dismemberment. A variation known as intact D&E or D&X involves removing the fetus intact, usually after collapsing the skull, and is used after approximately sixteen weeks of gestation. Dr. Carhart testified that he attempts to use the intact D&E procedure in the 10 to 20 cases a year that present to Dr. Carhart because it reduces the risk of injury from sharp bone fragments, minimizes instrument passes, and lowers the chance of leaving retained tissue.
The District Court found that the banned procedure is sometimes safer than other methods for women undergoing abortions between twelve and twenty weeks of gestation. It credited testimony that the intact D&E procedure reduces operating time, blood loss, risk of infection, complications from bony fragments, and instrument-inflicted damage to the uterus and cervix. The court also noted that a select panel of the American College of Obstetricians and Gynecologists had concluded the procedure may be the best or most appropriate in particular circumstances. The Court of Appeals accepted these findings. The Supreme Court granted certiorari to review the judgment of the Court of Appeals. The statute provides an exception only when the procedure is necessary to save the life of the mother. The district court found that the banned procedure is sometimes the safest procedure for the woman.25 The Court of Appeals agreed with the District Court’s assessment of the record.26 The evidence showed that the intact D&E procedure reduces the risk of injury to the woman’s cervix and uterus.27 The Supreme Court saw no basis for rejecting these findings.28 The statute therefore lacks the requisite health exception and is unconstitutional.29
The Nebraska statute is unconstitutional because it lacks the requisite exception for the preservation of the health of the mother.30
Related opinions on this issue
Joined by None
Justice O'Connor wrote separately to emphasize that the Nebraska statute is inconsistent with Casey because it lacks an exception for those instances when the banned procedure is necessary to preserve the health of the mother.31 She noted that Nebraska's own statutory scheme underscores this constitutional infirmity by recognizing the need for a health exception in its postviability statute.32 Justice O'Connor stressed that where a significant body of medical opinion believes a procedure may bring with it greater safety for some patients and explains the medical reasons supporting that view, the State cannot say that the procedure will not, in some circumstances, be necessary to preserve the life or health of the mother.33
She also addressed the alternative ground that the statute imposes an undue burden by covering the D&E procedure as well as the D&X procedure.34
Joined by Justice Ginsburg
Justice Stevens joined the Court’s opinion and wrote separately to emphasize that the Nebraska statute is unconstitutional not only because it lacks a health exception but also because it is impermissibly vague.35 The statute’s definition of the prohibited procedure is so broad that it could be read to encompass the most common form of second-trimester abortion.36 A statute that is so vague that it chills the exercise of constitutional rights cannot stand.37
He further observed that the rhetoric describing the procedure does not provide a reason to believe that the banned method is more brutal or less respectful of potential life than the equally gruesome procedure the statute still allows.38 The notion that one procedure is more akin to infanticide than the other is simply irrational.39
Joined by Justice Stevens
Justice Ginsburg joined the Court’s opinion and stressed that the Nebraska law is an effort to chip away at the right recognized in Roe and reaffirmed in Casey.40 It cannot survive constitutional scrutiny.41 The Court’s decision today reaffirms the central holding of Casey that a state may not impose an undue burden on a woman’s right to choose an abortion before viability.42
She noted that the law targets only a method of performing abortion and does not save any fetus from destruction or protect the lives or health of pregnant women.43 The prohibition reflects an effort by state legislators to express hostility to the constitutional right rather than any legitimate health or safety concern.44
Joined by None
Chief Justice Rehnquist dissented and stated that the Court’s decision today ignores the State’s legitimate interest in protecting potential human life and in regulating the medical profession.45 The Nebraska statute is a reasonable regulation of abortion procedures.46 It does not impose an undue burden on the right to abortion.47
He would reverse the judgment of the Court of Appeals.48 He continued to believe that Casey was wrongly decided. He acknowledged that under the rule of Marks the joint opinion represents the holding of the Court, and he joined the dissents of Justices Kennedy and Thomas as correctly applying Casey’s principles.
Whether the statute imposes an undue burden on a woman's ability to choose a dilation and evacuation abortion?49
A statute that bans a commonly used abortion procedure is unconstitutional if it does not contain an exception for the health of the mother.50 The statute imposes an undue burden if it has the effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.51 Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 877 (1992).
Yes. The statute’s language does not track the commonly understood medical definition of partial birth abortion.52 Instead, it reaches the Dilation and Evacuation procedure, which is the most commonly used method for performing previability second trimester abortions.53 The statute therefore has the effect of banning the most common abortion procedure.54
The lower courts found that the statute applies to D&E as well as D&X.55 The Supreme Court agreed that the statute covers D&E.56 The statute therefore imposes an undue burden on a woman’s ability to choose a D&E abortion and is unconstitutional.57
The statute imposes an undue burden on a woman's ability to choose a dilation and evacuation abortion and is therefore unconstitutional.58
Related opinions on this issue
Joined by None
Justice Scalia joined the dissent of Justice Thomas and stated that the Court’s abortion jurisprudence is without foundation in the Constitution.59 Today’s decision further extends that flawed jurisprudence.60 The Nebraska statute should be upheld.61
He viewed the outcome as the logical and predictable consequence of Casey rather than a misapplication of it.62 The decision demonstrates that the undue burden test is unprincipled and standardless, amounting to nothing more than a policy judgment by nine lawyers on whether the limitation goes too far.63 Casey must be overruled.64
Joined by Chief Justice Rehnquist
Justice Kennedy dissented and stated that the Court’s opinion misapplies the undue burden standard established in Casey.65 The Nebraska statute is a valid exercise of the State’s authority to regulate the practice of medicine and to protect human life.66 The statute does not ban the D&E procedure; it bans only a particular variant of that procedure.67
The District Court’s findings regarding the comparative safety of the procedures are not supported by the record.68 He would reverse.69 Nebraska was entitled to find a consequential moral difference between the procedures and to conclude that the ban advances important interests regarding the sanctity of life without depriving any woman of a safe abortion.70
Joined by Chief Justice Rehnquist And Justice Scalia
Justice Thomas stated that the Court’s decision today is not supported by the Constitution or our precedents.71 The Nebraska statute regulates a specific abortion procedure that is particularly gruesome.72 The State has a legitimate interest in prohibiting such a procedure.73
The statute contains an exception for the life of the mother and does not impose an undue burden on the right to abortion.74 The lower courts erred in striking down the statute.75 The majority’s holding is an unprecedented expansion of prior cases and is obviously irreconcilable with Casey’s explication of the undue burden standard.76
Joined by None
Justice O'Connor wrote separately to emphasize that the Nebraska statute is inconsistent with Casey because it lacks an exception for those instances when the banned procedure is necessary to preserve the health of the mother. She noted that Nebraska's own statutory scheme underscores this constitutional infirmity by recognizing the need for a health exception in its postviability statute. Justice O'Connor stressed that where a significant body of medical opinion believes a procedure may bring with it greater safety for some patients and explains the medical reasons supporting that view, the State cannot say that the procedure will not, in some circumstances, be necessary to preserve the life or health of the mother.