"Today's action by the Supreme Court confirms that Judge Easterbrook and the Seventh Circuit were out of step with the Constitution, and implicitly endorses Chief Judge Posner's faithful protection of women's health and the Constitution," said Simon Heller, CRLP's Director of Litigation, who represents abortion providers in Wisconsin challenging the state ban. Heller argued the Nebraska ban case, Stenberg v. Carhart, before the U.S. Supreme Court.

The Supreme Court's 5-4 decision in Stenberg v. Carhart exposed these bans for what they are: extreme and deceptive attempts to outlaw abortion that jeopardize women's health. As a result of the Court's decision, bans passed in over 30 states are likely to be found unconstitutional or unenforceable.

In a majority opinion written by Justice Breyer, the Supreme Court affirmed that restrictions on previability abortions lacking provisions to protect women's health violate Roe v. Wade and other precedents guaranteeing the right to choose abortion. In addition, the Court determined that the effect of the bans went well beyond prohibitions against so-called "late term" abortion, finding the ban to be so broad and vague that constitutionally protected abortion procedures performed before viability could be prohibited. The majority decision was joined by five Justices. Four separate dissenting opinions were filed by Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas, demonstrating that Roe and the right to choose is imperiled.

On October 26, 1999, the U.S. Court of Appeals for the Seventh Circuit issued a sharply divided 5-4 opinion finding that the bans of Illinois and Wisconsin could be construed in a constitutional manner. This decision created a split in the circuit courts, setting the stage for Supreme Court consideration of the bans. Wisconsin has the harshest "partial-birth abortion" ban in the nation, carrying a penalty of life imprisonment for doctors convicted under the statute. On May 12, 1998, U.S. District Court Judge John C. Shabaz became the first judge to deny a preliminary injunction against a so-called "partial-birth abortion" ban. Attorneys from CRLP and the Planned Parenthood Federation of America represent six doctors and a local Planned Parenthood affiliate challenging the ban.