Stenberg v. Carhart (2000)
The state of Nebraska enacted the Partial-Birth Abortion Ban
act. Thirty other states enacted similar laws. A Nebraska
abortionist, LeRoy Carhart, brought suit in federal district court
against Don Stenberg, the attorney general for Nebraska. Carhart
sought a declaration that the law was invalid and an injunction to
bar its enforcement. The district court invalidated the law
after conducting a trial. The Eighth Circuit Court of Appeals
affirmed. Stenberg sought and obtained review in the United States
The Statute under Review
Nebraska law criminalized the performance of partial-birth
abortions. A "partial-birth abortion" was defined 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." The law also defined
"partially delivers vaginally" as "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."
The law contained an exception, permitting partial-birth
abortion when necessary to save the life of a woman "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."
Penalties for violating the law included a prison term of up to
twenty years, a fine of up to $25,000, and revocation of the
doctor's license to practice medicine in the state.
The Court's Holding
The Court struck down the law concluding that it was
constitutionally infirm because it lacked a health exception and
"imposed an undue burden."
The opinion was authored by Justice Breyer and joined by
Justices Stevens, O'Connor, Souter and Ginsburg. Justice Stevens
authored a concurrence in which Justice Ginsburg joined. Justice
O'Connor authored a concurrence. Justice Ginsburg authored a
concurrence in which Justice Stevens joined. Chief Justice
Rehnquist authored a dissent. Justice Scalia authored a
dissent. Justice Kennedy authored a dissent in which the Chief
Justice joined. And Justice Thomas authored a dissent in which the
Chief Justice and Justice Scalia joined.
The Court's Reasoning
1. Health exception. The Court began its
discussion by quoting Roe v. Wade's standard for
post-viability abortions: "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."
The Court noted that the Nebraska law applied to abortions of
both pre- and post-viable unborn children. The Court concluded that
if a health exception is required after viability, it is also
required before viability. With respect to the state's
interest in protecting unborn children prior to viability, the
Court said Nebraska has a "weaker" interest. And in terms of the
state's interest in protecting unborn children after viability, the
Court said the ban did not promote this interest. The Court noted
that even under the ban, unborn children could be killed by an
alternative method of abortion.
Regardless of any interest the state may have in protecting
unborn children, the Court said a health exception is
required. By requiring an exception to Nebraska's
partial-birth abortion ban, the Court read Roe's standard
more broadly. Not only would the Court require a health exception
for a ban on all abortions after viability, but also, in some
circumstances, for abortion regulations that fall short of an
Nebraska offered eight reasons challenging the requirement
for a health exception to its partial-birth abortion ban: (1) the
procedure is rare, (2) the procedure is performed by a few doctors,
(3) safe alternative procedures are available, (4) the ban would
not create health risks to women, (5) the procedure involves unique
health risks, (6) there are no medical studies demonstrating the
procedure's safety, (7) the American Medical Association (AMA) said
that the procedure is not the only appropriate procedure, and (8)
the American College of Obstetricians and Gynecologists (ACOG) said
that there were no cases in which the procedure would be the only
option to save a woman's life or promote her health.
The Court rejected all eight arguments, saying that the first
two were irrelevant. The Court said that the third and fourth
arguments were based on disputed facts. The Court noted the
district court found that in some circumstances the partial-birth
abortion procedure was safer and that some experts said it
eliminated some risks associated with abortion. The Court said ACOG
disagreed with the fifth argument. The Court did not question
Nebraska's sixth and seventh arguments, though it did offer a
correction to the seventh point. The Court said the AMA
recommendation also allowed for use of the partial-birth abortion
procedure if other procedures posed "materially greater health
risks" to the woman.
The Court questioned Nebraska's eighth argument saying that it
misunderstood ACOG's position. The Court cited ACOG's amicus brief
saying that for some women partial-birth abortion offered health
The Court concluded its discussion of the health exception by
saying the trial court found and the record supports the view that
the partial-birth abortion procedure eliminates some health risks.
The Court also said that the constitutional requirement that the
government permit abortions deemed "necessary" in appropriate
medical means that the government must tolerate differences in
The Court added that a division of medical opinion on the issue
suggests uncertainty and uncertainty suggests health risks. And
finally, the Court said "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'" (emphasis
2. Undue burden. The Court said that if the
partial-birth abortion statute's language also applied to dilation
and evacuation (D&E) abortion procedures, it would create an
"undue burden" on a woman's right to choose abortion. D&E
abortions involve dismemberment of the child inside the womb.
The language of Nebraska's partial-birth abortion ban, the Court
concluded, did apply to D&E procedures because the statute
prohibited delivery of a "substantial portion" of a living child
"for the purpose of performing a procedure that the person
performing such procedure knows will kill the unborn child."
The Court said that D&E's sometimes involve physicians
removing by dismemberment a substantial portion of a living child
into the vagina. The Court said that this method therefore involved
delivery of a substantial portion of an unborn child.
Nebraska's attorney general offered a narrowing interpretation
of the language "substantial portion," saying it would limit the
ban to cases in which the child is delivered up to his or her head.
The Court rejected the attorney general's interpretation, saying it
could not defer to his interpretation because it was an
unreasonable reading of the statute.
The Court also rejected the attorney general's argument that the
word "procedure" following the language "substantial portion"
limited the ban to the partial-birth abortion procedure. The
attorney general read the language of the ban to involve delivery
of the child or a substantial portion of the child before a
separate procedure killed the child. In the D&E procedure, the
child is killed by the act of dismemberment and not by a separate
procedure as in a partial-birth abortion.
The Court rejected this understanding saying it required the
statute to have the word "separate" in the definition.
The Court also rejected the dissenters' view that the word
"delivery" limited the ban to partial-birth abortion. The Court
said "delivery" is understood in obstetrics and gynecology to mean
removal of any tissue from the uterus.
The Court concluded that because D&Es are common procedures
and that because it read the ban to include D&Es, the ban must
be struck down as imposing an undue burden.
Justice Stevens (joined by Justice Ginsburg).
Justice Stevens agreed with the Court's opinion but wrote
separately to say that the State has no legitimate interest in
prohibiting a physician from doing what he or she thinks is best
for a woman exercising a right to an abortion.
Justice O'Connor. Justice O'Connor wrote
separately, saying that a ban that clearly applied only to
partial-birth abortion, and not D&Es, would pass constitutional
muster. Such a ban, she said, must have a health exception.
Justice Ginsburg (joined by Justice Stevens).
Justice Ginsburg wrote separately, saying that the ban does not
save any unborn children and that D&E is no less gruesome than
PBA. She also expressed her agreement with Seventh Circuit Judge
Posner that the aim of the law is to "chip away" at Roe v.
Wade. As such, she said, it burdens the constitutional
rights of women.
The Chief Justice. Justice Rehnquist wrote
separately, underscoring his view that Planned Parenthood v.
Casey was an incorrect decision. He said that Justice
Kennedy and Justice Thomas properly applied Casey in their
Justice Scalia. Justice Scalia also wrote
separately. He agreed with the other dissenters that the
Court's decision did not follow from Casey. Nothing
in Casey, for example, requires a court to disregard the
plain meaning of a statute or interpret it in a manner that renders
it unconstitutional, as the majority did here.
But the problem, Justice Scalia said, is not simply that the
majority misapplied Casey. The problem is with
Casey itself, The undue burden test that
Casey created is, in Justice Scalia's view, unprincipled
in origin and unworkable in practice. Casey, he
said, should be overturned.
Justice Kennedy (joined by the Chief Justice).
Justice Kennedy authored a dissent, highlighting that
Casey stands for the principle that states have an
interest in protecting unborn human life. He said the state
may further this interest by banning the partial-birth abortion
procedure even if the ban will not effectively save an unborn
child. The state, he said, may use the ban to promote its
interest in maintaining the integrity of the medical profession.
He noted the critical difference between D&E and PBA is
the location of the child and said the state ought to be allowed to
draw a moral distinction between the two procedures.
He said the Court's decision goes too far by deferring too much
to the abortionist's judgment, thereby allowing him to settle the
abortion policy for the state. He also noted that Nebraska
has not prohibited any woman from obtaining a safe abortion.
Justice Kennedy said that the language of the statute was
clear in prohibiting only PBA. It did not, he said, include
the D&E procedure because the definition required a "delivery"
and removal of dismembered parts of an unborn child could not be
considered a delivery. Justice Kennedy concluded that the
Court had failed in its duty to offer a constitutional construction
of the statute. And finally, Justice Kennedy noted that the
Court imposed its view of the issue on some thirty states that had
passed similar bans.
Justice Thomas (joined by the Chief Justice and Justice
Scalia). Justice Thomas began his dissent by stating that
Roe was an incorrect decision because the Constitution
does not require abortion. Justice Thomas noted that after
Roe the Court struck down any regulation of abortion, but
that with Webster and then Casey the Court began
to recognize the state has an interest in protecting the lives of
unborn children and may further this interest by regulating
The majority's decision, he said, is reminiscent of the
immediate post-Roe era which struck down virtually any
abortion regulation, and is not in accord with the Court's current
Justice Thomas said the Court failed to carry out its duty to
construe statutes on the basis of their plain language and to
resolve any ambiguities in statutory language by providing a
constitutional reading of the statute, if possible.
In reading the Nebraska statute, Justice Thomas said the
definition of the partial-birth abortion procedure does not include
D&E procedures because it requires "delivery" and "delivery"
supposes an intact child. Justice Thomas pointed out that
when the majority said "delivery" could include removing tissue
from the uterus, they were relying on citations that involved
delivery of the placenta after childbirth. Nonetheless, a
delivery involves the birth of an intact child. Justice
Thomas also pointed out that the majority provided no obstetrical
source for the proposition that "delivery" could include extracting
a limb of a child from the uterus.
Justice Thomas also said the sequence in the definition excluded
D&Es because the definition requires delivery of the child and
then a procedure that kills the child. (In the D&E, the act of
dismemberment kills the child). In addition to pointing out
that the text of the law covers only the partial-birth abortion
procedure, Justice Thomas notes that there is a common
understanding of "partial-birth abortion" - adopted by most state
legislatures, the Congress and discussed in medical
authorities. That common understanding speaks of the PBA
procedure as distinct from D&E and limits the application of
the law only to the former.
But even if there were any doubt about the meaning of the
statute, the Court is required to construe it in a constitutional
manner, if reasonable. Justice Thomas said such a
construction is possible. He said the words "substantial
portion" can be construed to mean the child must be "largely, but
not wholly" delivered.
Justice Thomas also said the legislature is free to define the
term "partial-birth abortion" even if the medical community does
not generally use the term. He also faulted the majority for
not conducting a thorough statutory analysis. He noted that
the majority would require the state to adopt so precise a
definition of the procedure that evading the law would be rather
easy. The state, he said, has an interest in preventing the
deaths of partially-born children and is therefore free to define
the procedure in a way broad enough to ban such killings.
In applying Casey, Justice Thomas said the state has a
valid interest in protecting unborn children and may do so as long
as it does not create an undue burden. The state's interest
here is so clear because it is prohibiting a procedure very similar
to infanticide. He noted that Casey requires a
health exception only if continuing the pregnancy creates health
risks to the woman. It does not require a health exception, as the
majority says, if some physicians think the ban might have health
consequences for the woman. Justice Thomas says
Casey requires a health exception only if the absence of
an exception creates an undue burden. He said the ban does
not pose an undue burden because it would not create significant
health risks. He also noted the challenge to the law must
demonstrate that there are "no set of circumstances" under which
the law would be constitutional. Carhart failed to make such
a showing. In fact, under the ban there would always be an
alternative method of abortion available.