Stenberg v. Carhart

United States Supreme Court

530 U.S. 914, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000)

 

            In this case the Supreme Court considers a constitutional challenge to a Nebraska law that prohibits any “partial birth abortion” unless that procedure is necessary to save the life of the mother. The statute defines “partial birth abortion” as a procedure in which the doctor “partially delivers vaginally a living unborn child before killing the . . . child.” In a suit brought by Leroy Carhart, a Nebraska doctor who performs abortions, a federal district court held the statute unconstitutional. The Court of Appeals affirmed.

 

Justice Breyer delivered the opinion of the Court.

 

            … Three established principles determine the issue before us. We shall set them forth in the language of the joint opinion in [Planned Parenthood v.] Casey [1992]. First, before “viability ... the woman has a right to choose to terminate her pregnancy.” … Second, “a law designed to further the State’s interest in fetal life which imposes an undue burden on the woman’s decision before fetal viability” is unconstitutional. … An “undue burden is ... shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” … Third, “subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” …

 

            We apply these principles to a Nebraska law banning “partial birth abortion.” … We hold that this statute violates the Constitution. …

 

            Because Nebraska law seeks to ban one method of aborting a pregnancy, we must describe and then discuss several different abortion procedures. Considering the fact that those procedures seek to terminate a potential human life, our discussion may seem clinically cold or callous to some, perhaps horrifying to others. There is no alternative way, however, to acquaint the reader with the technical distinctions among different abortion methods and related factual matters, upon which the outcome of this case depends. For that reason, drawing upon the findings of the trial court, underlying testimony, and related medical texts, we shall describe the relevant methods of performing abortions in technical detail.

 

              The evidence before the trial court, as supported or supplemented in the literature, indicates the following:

 

1. About 90% of all abortions performed in the United States take place during the first trimester of pregnancy, before 12 weeks of gestational age. … During the first trimester, the predominant abortion method is “vacuum aspiration,” which involves insertion of a vacuum tube (cannula) into the uterus to evacuate the contents. Such an abortion is typically performed on an outpatient basis under local anesthesia. … Vacuum aspiration is considered particularly safe. The procedure’s mortality rates for first trimester abortion are, for example, 5 to 10 times lower than those associated with carrying the fetus to term. Complication rates are also low. As the fetus grows in size, however, the vacuum aspiration method becomes increasingly difficult to use. …

 

2. Approximately 10% of all abortions are performed during the second trimester of pregnancy (12 to 24 weeks). … In the early 1970’s, inducing labor through the injection of saline into the uterus was the predominant method of second trimester abortion. … Today, however, the medical profession has switched from medical induction of labor to surgical procedures for most second trimester abortions. The most commonly used procedure is called “dilation and evacuation” (D&E). That procedure (together with a modified form of vacuum aspiration used in the early second trimester) accounts for about 95% of all abortions performed from 12 to 20 weeks of gestational age. …

 

3. D&E “refers generically to transcervical procedures performed at 13 weeks gestation or later.” … “D&E is similar to vacuum aspiration except that the cervix must be dilated more widely because surgical instruments are used to remove larger pieces of tissue. Osmotic dilators are usually used. Intravenous fluids and an analgesic or sedative may be administered. A local anesthetic such as a paracervical block may be administered, dilating agents, if used, are removed and instruments are inserted through the cervix into the uterus to removal fetal and placental tissue. Because fetal tissue is fragile and easily broken, the fetus may not be removed intact. The walls of the uterus are scraped with a curette to ensure that no tissue remains.” …  After 15 weeks: “Because the fetus is larger at this stage of gestation (particularly the head), and because bones are more rigid, dismemberment or other destructive procedures are more likely to be required than at earlier gestational ages to remove fetal and placental tissue.”  After 20 weeks: “Some physicians use intrafetal potassium chloride or digoxin to induce fetal demise prior to a late D&E (after 20 weeks), to facilitate evacuation.” … There are variations in D&E operative strategy. However, the common points are that D&E involves (1) dilation of the cervix; (2) removal of at least some fetal tissue using nonvacuum instruments; and (3) (after the 15th week) the potential need for instrumental disarticulation or dismemberment of the fetus or the collapse of fetal parts to facilitate evacuation from the uterus.

 

4. When instrumental disarticulation incident to D&E is necessary, it typically occurs as the doctor pulls a portion of the fetus through the cervix into the birth canal. …

 

5. The D&E procedure carries certain risks. The use of instruments within the uterus creates a danger of accidental perforation and damage to neighboring organs. Sharp fetal bone fragments create similar dangers. And fetal tissue accidentally left behind can cause infection and various other complications. … Nonetheless studies show that the risks of mortality and complication that accompany the D&E procedure between the 12th and 20th weeks of gestation are significantly lower than those accompanying induced labor procedures (the next safest midsecond trimester procedures). …

 

6. At trial, Dr. Carhart and Dr. Stubblefield described a variation of the D&E procedure, which they referred to as an “intact D&E.” … Like other versions of the D technique, it begins with induced dilation of the cervix. The procedure then involves removing the fetus from the uterus through the cervix “intact,” i.e., in one pass, rather than in several passes. … It is used after 16 weeks at the earliest, as vacuum aspiration becomes ineffective and the fetal skull becomes too large to pass through the cervix. … The intact D proceeds in one of two ways, depending on the presentation of the fetus. If the fetus presents head first (a vertex presentation), the doctor collapses the skull; and the doctor then extracts the entire fetus through the cervix. If the fetus presents feet first (a breech presentation), the doctor pulls the fetal body through the cervix, collapses the skull, and extracts the fetus through the cervix. … The breech extraction version of the intact D is also known commonly as “dilation and extraction,” or D&X. … In the late second trimester, vertex, breech, and traverse/compound (sideways) presentations occur in roughly similar proportions. …

 

7. The intact D&E procedure can also be found described in certain obstetric and abortion clinical textbooks, where two variations are recognized. The first, as just described, calls for the physician to adapt his method for extracting the intact fetus depending on fetal presentation. … This is the method used by Dr. Carhart. … A slightly different version of the intact D procedure … calls for conversion to a breech presentation in all cases. …

 

8. The American College of Obstetricians and Gynecologists describes the D&X procedure in a manner corresponding to a breech-conversion intact D&E, including the following steps:

 

1. deliberate dilatation of the cervix, usually over a sequence of days; 2. instrumental conversion of the fetus to a footling breech; 3. breech extraction of the body excepting the head; and 4. partial evacuation of the intracranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus.” …

 

            Despite the technical differences we have just described, intact D&E and D&X are sufficiently similar for us to use the terms interchangeably.

 

9. Dr. Carhart testified he attempts to use the intact D&E procedure during weeks 16 to 20 because (1) it reduces the dangers from sharp bone fragments passing through the cervix, (2) minimizes the number of instrument passes needed for extraction and lessens the likelihood of uterine perforations caused by those instruments, (3) reduces the likelihood of leaving infection-causing fetal and placental tissue in the uterus, and (4) could help to prevent potentially fatal absorption of fetal tissue into the maternal circulation. … The District Court made no findings about the D&X procedure’s overall safety. … The District Court concluded, however, that “the evidence is both clear and convincing that Carhart’s D&X procedure is superior to, and safer than, the ... other abortion procedures used during the relevant gestational period in the 10 to 20 cases a year that present to Dr. Carhart.”

 

10. The materials presented at trial referred to the potential benefits of the D&X procedure in circumstances involving nonviable fetuses, such as fetuses with abnormal fluid accumulation in the brain (hydrocephaly). … Others have emphasized its potential for women with prior uterine scars, or for women for whom induction of labor would be particularly dangerous. …

 

11. There are no reliable data on the number of D&X abortions performed annually. Estimates have ranged between 640 and 5,000 per year. …

 

 

            The question before us is whether Nebraska’s statute, making criminal the performance of a “partial birth abortion,” violates the Federal Constitution, as interpreted in Planned Parenthood of Southeastern Pa. v. Casey (1992), and Roe v. Wade (1973). We conclude that it does for at least two independent reasons. First, the law lacks any exception “‘for the preservation of the ... health of the mother.’” … Second, it “imposes an undue burden on a woman’s ability” to choose a D&E abortion, thereby unduly burdening the right to choose abortion itself. …

 

              The fact that Nebraska’s law applies both pre- and postviability aggravates the constitutional problem presented. The State’s interest in regulating abortion previability is considerably weaker than postviability. … Since the law requires a health exception in order to validate even a postviability abortion regulation, it at a minimum requires the same in respect to previability regulation. …

 

              The quoted standard also depends on the state regulations “promoting [the State’s] interest in the potentiality of human life.” The Nebraska law, of course, does not directly further an interest “in the potentiality of human life” by saving the fetus in question from destruction, as it regulates only a method of performing abortion. Nebraska describes its interests differently. It says the law “show[s] concern for the life of the unborn,” “prevent[s] cruelty to partially born children,” and “preserve[s] the integrity of the medical profession.” … But we cannot see how the interest-related differences could make any difference to the question at hand, namely, the application of the “health” requirement.

 

              Consequently, the governing standard requires an exception “where it is necessary, in appropriate medical judgment for the preservation of the life or health of the mother,” … for this Court has made clear that a State may promote but not endanger a woman’s health when it regulates the methods of abortion. …

 

            … Nebraska has not convinced us that a health exception is “never necessary to preserve the health of women.” … Rather, a statute that altogether forbids D&X creates a significant health risk. The statute consequently must contain a health exception. … By no means must a State grant physicians “unfettered discretion” in their selection of abortion methods. … But where substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women’s health, Casey requires the statute to include a health exception when the procedure is “‘necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’” … Requiring such an exception in this case is no departure from Casey, but simply a straightforward application of its holding.

 

              The Eighth Circuit found the Nebraska statute unconstitutional because, in Casey’s words, it has the “effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” … It thereby places an “undue burden” upon a woman’s right to terminate her pregnancy before viability. … Nebraska does not deny that the statute imposes an “undue burden” if it applies to the more commonly used D&E procedure as well as to D&X. And we agree with the Eighth Circuit that it does so apply.

 

            Even if the statute’s basic aim is to ban D&X, its language makes clear that it also covers a much broader category of procedures.

 

              The Nebraska State Attorney General argues that the statute does differentiate between the two procedures [D&X and D&E]. …

 

              We cannot accept the Attorney General’s narrowing interpretation of the Nebraska statute. This Court’s case law makes clear that we are not to give the Attorney General’s interpretative views controlling weight. For one thing, this Court normally follows lower federal-court interpretations of state law. … It “rarely reviews a construction of state law agreed upon by the two lower federal courts.” … In this case, the two lower courts have both rejected the Attorney General’s narrowing interpretation. …

 

            We are aware that adopting the Attorney General’s interpretation might avoid the constitutional problem discussed in this section. But we are “without power to adopt a narrowing construction of a state statute unless such a construction is reasonable and readily apparent.” …

 

            In sum, using this law some present prosecutors and future Attorneys General may choose to pursue physicians who use D&E procedures, the most commonly used method for performing previability second trimester abortions. All those who perform abortion procedures using that method must fear prosecution, conviction, and imprisonment. The result is an undue burden upon a woman’s right to make an abortion decision. We must consequently find the statute unconstitutional.

 

Justice Stevens, with whom Justice Ginsburg joins, concurring.

 

              Although much ink is spilled today describing the gruesome nature of late-term abortion procedures, that rhetoric does not provide me a reason to believe that the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome, or less respectful of “potential life” than the equally gruesome procedure Nebraska claims it still allows. The rhetoric is almost, but not quite, loud enough to obscure the quiet fact that during the past 27 years, the central holding of Roe v. Wade has been endorsed by all but 4 of the 17 Justices who have addressed the issue. That holding--that the word “liberty” in the Fourteenth Amendment includes a woman’s right to make this difficult and extremely personal decision--makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty. But one need not even approach this view today to conclude that Nebraska’s law must fall. For the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational. …

 

Justice O’Connor, concurring.

 

              …For the reasons stated in the Court’s opinion, I agree that Nebraska’s statute cannot be reconciled with our decision in Planned Parenthood v. Casey (1992), and is therefore unconstitutional. I write separately to emphasize the following points.

 

              First, 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. …

The statute at issue here, however, only excepts those procedures “necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury.” … This lack of a health exception necessarily renders the statute unconstitutional. …

 

            Second, Nebraska’s statute is unconstitutional on the alternative and independent ground that it imposes an undue burden on a woman’s right to choose to terminate her pregnancy before viability. Nebraska’s ban covers not just the dilation and extraction procedure [D&X], but also the dilation and evacuation procedure [D&E], “the most commonly used method for performing previability second trimester abortions.” …

 

              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. … If there were adequate alternative methods for a woman safely to obtain an abortion before viability, it is unlikely that prohibiting the D&X procedure alone would “amount in practical terms to a substantial obstacle to a woman seeking an abortion.” … Thus, a ban on partial-birth abortion that only proscribed the D&X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional in my view.

 

              Nebraska’s statute, however, does not meet these criteria. It contains no exception for when the procedure, in appropriate medical judgment, is necessary to preserve the health of the mother; and it proscribes not only the D&X procedure but also the D&E procedure, the most commonly used method for previability second trimester abortions, thus making it an undue burden on a woman’s right to terminate her pregnancy. For these reasons, I agree with the Court that Nebraska’s law is unconstitutional.

 

Justice Ginsburg, with whom Justice Stevens joins, concurring. ...

 

Chief Justice Rehnquist, dissenting. …

 

Justice Scalia, dissenting.

 

              I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott. The method of killing a human child--one cannot even accurately say an entirely unborn human child--proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion. And the Court must know (as most state legislatures banning this procedure have concluded) that demanding a “health exception”--which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?)--is to give live-birth abortion free rein. The notion that the Constitution of the United States, designed, among other things, “to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity,” prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd. …

 

Justice Kennedy, with whom The Chief Justice joins, dissenting.

 

              For close to two decades after Roe v. Wade the Court gave but slight weight to the interests of the separate States when their legislatures sought to address persisting concerns raised by the existence of a woman’s right to elect an abortion in defined circumstances. When the Court reaffirmed the essential holding of Roe, a central premise was that the States retain a critical and legitimate role in legislating on the subject of abortion . … Planned Parenthood of Southeastern Pa. v. Casey, (1992). The political processes of the State are not to be foreclosed from enacting laws to promote the life of the unborn and to ensure respect for all human life and its potential. ... The State’s constitutional authority is a vital means for citizens to address these grave and serious issues, as they must if we are to progress in knowledge and understanding and in the attainment of some degree of consensus.

 

              The Court’s decision today, in my submission, repudiates this understanding by invalidating a statute advancing critical state interests, even though the law denies no woman the right to choose an abortion and places no undue burden upon the right. The legislation is well within the State’s competence to enact. Having concluded Nebraska’s law survives the scrutiny dictated by a proper understanding of Casey, I dissent from the judgment invalidating it. …

 

              Ignoring substantial medical and ethical opinion, the Court substitutes its own judgment for the judgment of Nebraska and some 30 other States and sweeps the law away. The Court’s holding stems from misunderstanding the record, misinterpretation of Casey, outright refusal to respect the law of a State, and statutory construction in conflict with settled rules. The decision nullifies a law expressing the will of the people of Nebraska that medical procedures must be governed by moral principles having their foundation in the intrinsic value of human life, including life of the unborn. Through their law the people of Nebraska were forthright in confronting an issue of immense moral consequence. The State chose to forbid a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life, while the State still protected the woman’s autonomous right of choice as reaffirmed in Casey. The Court closes its eyes to these profound concerns. …

 

Justice Thomas, with whom The Chief Justice and Justice Scalia join, dissenting.

 

            ... In the years following Roe, this Court applied, and, worse, extended, that decision to strike down numerous state statutes that purportedly threatened a woman’s ability to obtain an abortion. …

 

              It appeared that this era of Court-mandated abortion on demand had come to an end … in our decision in Planned Parenthood v. Casey (1992). Although in Casey the separate opinions of The Chief Justice and Justice Scalia urging the Court to overrule Roe did not command a majority, seven Members of that Court, including six Members sitting today, acknowledged that States have a legitimate role in regulating abortion and recognized the States’ interest in respecting fetal life at all stages of development. … The joint opinion authored by Justices O’Connor, Kennedy, and Souter concluded that prior case law “went too far” in “undervalu[ing] the State’s interest in potential life” and in “striking down ... some abortion regulations which in no real sense deprived women of the ultimate decision.” …

 

              My views on the merits of the Casey joint opinion have been fully articulated by others. … I will not restate those views here, except to note that the Casey joint opinion was constructed by its authors out of whole cloth. The standard set forth in the Casey joint opinion has no historical or doctrinal pedigree. The standard is a product of its authors’ own philosophical views about abortion, and it should go without saying that it has no origins in or relationship to the Constitution and is, consequently, as illegitimate as the standard it purported to replace. Even assuming, however, as I will for the remainder of this dissent, that Casey’s fabricated undue-burden standard merits adherence (which it does not), today’s decision is extraordinary. Today, the Court inexplicably holds that the States cannot constitutionally prohibit a method of abortion that millions find hard to distinguish from infanticide and that the Court hesitates even to describe. … This holding cannot be reconciled with Casey’s undue-burden standard, as that standard was explained to us by the authors of the joint opinion, and the majority hardly pretends otherwise. In striking down this statute--which expresses a profound and legitimate respect for fetal life and which leaves unimpeded several other safe forms of abortion--the majority opinion gives the lie to the promise of Casey that regulations that do no more than “express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose” whether or not to have an abortion. … Today’s decision is so obviously irreconcilable with Casey’s explication of what its undue-burden standard requires, let alone the Constitution, that it should be seen for what it is, a reinstitution of the pre-Webster abortion-on-demand era in which the mere invocation of “abortion rights” trumps any contrary societal interest. If this statute is unconstitutional under Casey, then Casey meant nothing at all, and the Court should candidly admit it.

 

              To reach its decision, the majority must take a series of indefensible steps. The majority must first disregard the principles that this Court follows in every context but abortion: We interpret statutes according to their plain meaning and we do not strike down statutes susceptible of a narrowing construction. The majority also must disregard the very constitutional standard it purports to employ, and then displace the considered judgment of the people of Nebraska and 29 other States. The majority’s decision is lamentable, because of the result the majority reaches, the illogical steps the majority takes to reach it, and because it portends a return to an era I had thought we had at last abandoned. …

 

              In the almost 30 years since Roe, this Court has never described the various methods of aborting a second- or third-trimester fetus. From reading the majority’s sanitized description, one would think that this case involves state regulation of a widely accepted routine medical procedure. Nothing could be further from the truth. The most widely used method of abortion during this stage of pregnancy is so gruesome that its use can be traumatic even for the physicians and medical staff who perform it. …And the particular procedure at issue in this case, “partial birth abortion,” so closely borders on infanticide that 30 States have attempted to ban it. …

 

            “Partial birth abortion” is a term that has been used by a majority of state legislatures, the United States Congress, medical journals, physicians, reporters, even judges, and has never, as far as I am aware, been used to refer to the D&E procedure. The number of instances in which “partial birth abortion” has been equated with the breech extraction form of intact D&E (otherwise known as “D&X”) and explicitly contrasted with D&E, are numerous. …

 

              Were there any doubt remaining whether the statute could apply to a D&E procedure, that doubt is no ground for invalidating the statute. Rather, we are bound to first consider whether a construction of the statute is fairly possible that would avoid the constitutional question. …

 

              The majority contends that application of the Nebraska statute to D&E would pose constitutional difficulties because it would eliminate the most common form of second-trimester abortions. To the extent that the majority’s contention is true, there is no doubt that the Nebraska statute is susceptible of a narrowing construction by Nebraska courts that would preserve a physicians’ ability to perform D&E. … The term “substantial portion” is susceptible to a narrowing construction that would exclude the D&E procedure. …. If nothing else, a court could construe the statute to require that the fetus be “largely, but not wholly,” delivered out of the uterus before the physician performs a procedure that he knows will kill the unborn child. …

 

            The next question, therefore, is whether the Nebraska statute is unconstitutional because it does not contain an exception that would allow use of the procedure whenever “necessary in appropriate medical judgment, for the preservation of the ... health of the mother.” … It is clear that the Court’s understanding of when a health exception is required is not mandated by our prior cases. In fact, we have, post-Casey, approved regulations of methods of conducting abortion despite the lack of a health exception. …

 

            As if this state of affairs were not bad enough, the majority expands the health exception rule articulated in Casey in one additional and equally pernicious way. Although Roe and Casey mandated a health exception for cases in which abortion is “necessary” for a woman’s health, the majority concludes that a procedure is “necessary” if it has any comparative health benefits. … In other words, according to the majority, so long as a doctor can point to support in the profession for his (or the woman’s) preferred procedure, it is “necessary” and the physician is entitled to perform it. … But such a health exception requirement eviscerates Casey’s undue burden standard and imposes unfettered abortion-on-demand. The exception entirely swallows the rule. In effect, no regulation of abortion procedures is permitted because there will always be some support for a procedure and there will always be some doctors who conclude that the procedure is preferable. If Nebraska reenacts its partial birth abortion ban with a health exception, the State will not be able to prevent physicians like Dr. Carhart from using partial birth abortion as a routine abortion procedure. This Court has now expressed its own conclusion that there is “highly plausible” support for the view that partial birth abortion is safer, which, in the majority’s view, means that the procedure is therefore “necessary.” … Any doctor who wishes to perform such a procedure under the new statute will be able to do so with impunity. … The majority’s insistence on a health exception is a fig leaf barely covering its hostility to any abortion regulation by the States--a hostility that Casey purported to reject. …