Report: U.S. Supreme Court Reviews
Stenberg v. Carhart

In recent years, 31 states have enacted bans on so-called "partial birth" abortion. In the words of Richard A. Posner, Chief Judge of the United States Court of Appeals for the Seventh Circuit (appointed by anti-choice President Reagan), this onslaught did not "exhibit the legislative process at its best.... [It] produce[d] a set of laws that can fairly be described as irrational... concerned with making [the] statement... that fetal life is more valuable than women's health" (Hope Clinic v. Ryan, 195 F.3d at 880, 881).

On April 25, 2000, the U.S. Supreme Court will hear arguments in Stenberg v. Carhart, concerning Nebraska's law that bans so-called "partial birth" abortion. A decision is expected by the end of June 2000.

Background and District Court Ruling

The Nebraska law, enacted in 1997, 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. For purposes of this subdivision, the term 'partially delivers vaginally a living unborn child' means deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child (Neb. Rev. Stat. § 28-326(9) (1998)).

The law has a limited exception for when a banned procedure is necessary to protect a woman's life and no exception for when such a procedure is necessary to protect the woman's health.

Shortly after the Nebraska law was enacted, LeRoy Carhart, a Nebraska physician challenged the law in the United States District Court for Nebraska. Dr. Carhart practices medicine and surgery and provides abortions in Nebraska. Before he entered private practice, Carhart was a Lieutenant Colonel in the United States Air Force and was Chairman of the Department of Surgery at Offutt Air Force Base in Nebraska (Greenhouse, 2000). He has also been an assistant professor in the surgery departments of Creighton University Medical School and the University of Nebraska Medical Center.

In July, 1998, after a trial, the district court judge, who was appointed by anti-choice President Bush, declared the Nebraska law unconstitutional and permanently enjoined its enforcement (Carhart v. Stenberg, 11 F. Supp. 2d 1099 (D. Neb. 1998)).

The district court ruled that, even if the law could be read to ban a narrowly defined specific method of abortion — dilation and extraction ("D&X") — that method was for some women "appreciably safer" than other abortion methods employed at the same time of gestation (Carhart, 11 F. Supp. 2d at 1123). Thus, the court found that the statute subjected Dr. Carhart's patients "to an appreciably greater risk of injury or death" by preventing him from using that method when medically advisable (Carhart, 11 F. Supp. 2d at 1123). This is an "undue burden" and unconstitutional.

The court also held that the law could not be read to ban a specifically defined method. The court held that the law would ban many abortions performed by the most commonly used second-trimester method, the dilation and evacuation ("D&E") method. This was another reason why the law constituted an undue burden (Carhart, 11 F. Supp. 2d at 1130-31). Finally, the court held that the definition of the banned procedure was unconstitutionally vague because every doctor who testified stated that the definition "could be interpreted in vastly different ways by fair-minded people" (Carhart, 11 F. Supp. 2d at 1131).

The Eighth Circuit Ruling

Nebraska appealed, and in September 1999, the U.S. Court of Appeals for the Eighth Circuit affirmed the district court ruling (Carhart, 192 F.3d 1142 (8th Cir. 1999)).

The Eighth Circuit held that the term "partial birth" abortion has "no fixed medical or legal content" (Carhart, 192 F.3d at 1145). According to the court, although the law encompasses the D&X method (which the state claimed was the only procedure banned), the law would, in fact, "cover[s] a great deal more (Carhart, 192 F.3d at 1144)." In particular, the court of appeals held that the law would criminalize many abortions performed by the D&E method (Carhart, 192 F.3d at 1150).

The court rejected Nebraska's argument that the law should be construed only to ban the D&X method. The court ruled that such a construction would "twist the words of the law and give them a meaning they cannot reasonably bear (Carhart, 192 F.3d at 1150)." As a result of the law's broad sweep, the court of appeals ruled that it imposed an "undue burden" on a woman's right to choose abortion, and thus is unconstitutional under Planned Parenthood v. Casey.

Constitutional Defects in the Nebraska Law (and Similar Laws)

As the district court and Eighth Circuit opinions demonstrate, and as numerous federal courts around the country have held in challenges to similar laws, the Nebraska law suffers from three constitutional defects:

• First, the definition of the banned "procedure" describes a sequence of steps that occur in many pre-viability abortions performed by commonly used methods. Thus, physicians risk prosecution whenever they employ these methods to perform an abortion. Thus, the law is effectively a ban on many common methods used for pre-viability abortions.
• Second, there is no permissible state interest to justify the law. The U.S. Supreme Court has recognized two state interests as justifying restrictions on abortions — promoting maternal health and protecting potential life. (Prior to fetal viability, these interests cannot be pursued in ways that place a substantial obstacle in the path of a woman seeking an abortion.) The Nebraska law, however, cannot be justified as protecting maternal health because not only is there no evidence that even a precisely defined D&X method is dangerous to a woman's health but, as the district court found, that method is actually safer for some women. Nor can the law be justified by an interest in fetal life. Prior to fetal viability, the state may only pursue this interest by ensuring that a woman's abortion decision is informed and by seeking to persuade a woman not to have an abortion. The Nebraska law, which applies before viability, is not intended to "persuade."
• Third, the Nebraska law contains no exceptions for when a physician determines that the banned procedure is necessary to preserve the woman's health, and the law's exceptions to protect the woman's life are too narrow to be of any value. The Supreme Court has consistently mandated health and life exceptions, even for post-viability abortions.

If the Supreme Court agrees with the two lower federal courts that the Nebraska law is broad enough to ban common abortion procedures used throughout pregnancy, it is virtually certain to conclude that the law is unconstitutional. If it rules, however, that the Nebraska law bans only a narrowly defined and specific abortion procedure (D&X), then the Court will be faced with issues at the core of the protections afforded by Roe v. Wade and Planned Parenthood v. Casey. The U.S. Court of Appeals for the Seventh Circuit followed this second path in Planned Parenthood v. Doyle, and its opinion gives an indication of the dangers that could lie ahead. (See Hope Clinic v. Ryan, 195 F.3d 857 (7th Cir. 1999)).

If the U.S. Supreme Court rules that the law bans only D&X abortions, then the court must decide the following:

• Does banning one abortion method constitute an "undue burden" on a woman's right to choose abortion? The Seventh Circuit enunciated a watered-down definition of "undue burden," and used it to allow a ban on the D&X procedure. If the Seventh Circuit's formulation is endorsed by the U.S. Supreme Court, it would dramatically downgrade the constitutional status of the right to choose.
• What state interest justifies the statute? The Seventh Circuit did not attempt to find a justification linked to maternal health or potential life. Instead, it enunciated a new state interest in "moral considerations." If the U.S. Supreme Court did likewise, this would open a Pandora's box of daunting possibilities for new state restrictions on abortion and, other constitutional rights as well.
• Can a state ban an abortion procedure without providing a health exception and providing only an unacceptably narrow life exception? The Seventh Circuit held that a health exception was not necessary because, even with the ban, there remained safe alternative methods, although not necessarily as safe as what the statute — even narrowly construed — bans. If the U.S. Supreme Court held likewise, this would be a ground-breaking abandonment of what one federal appellate court has described as the constant thread in all abortion jurisprudence — the primacy of women's health.

Carhart v. Stenberg, 11 F. Supp. 2d 1099 (D. Neb. 1998).

Carhart v. Stenberg, 192 F.3d 1142 (8th Cir. 1999).

Greenhouse, Linda (2000, April 8). "Doctor Spurns Euphemism in Pursuing Abortion Rights." New York Times. p. A7.

Hope Clinic v. Ryan, 195 F.3d 857 (7th Cir. 1999) (en banc), stayed, No. 99-A428, A427 (Stevens, Circuit Justice Nov. 30, 1999), pets. for cert. filed, 68 U.S.L.W. 3461 (U.S. Jan. 10, 1999) (Nos. 99-1152 & 99-1156) and 68 U.S. L.W. 3480 (U.S. Jan. 14, 1999) (No. 99-1177).

Neb. Rev. Stat. § 28-326(9) (1998).

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). Roe v. Wade, 410 U.S. 113 (1973).