Stenberg v. Carhart (2000)
Stenberg v. Carhart (2000)
530 U.S. 912
In Roe v. Wade (1973) and Planned Parenthood of Southeastern Pa. v. Casey (1992), the Supreme Court held that the Constitution offers basic protection to a woman’s right to choose whether to have an abortion. Before fetal viability, a woman has a right to terminate her pregnancy, and a state law is unconstitutional if it imposes on the woman’s decision an “undue burden,” i.e., if it has the purpose or effect of placing a substantial obstacle in the woman’s path. After fetal viability, the State, in promoting its interest in the potentiality of human life, may regulate, and even proscribe, abortion except where “necessary, in appropriate medical judgment, for the preservation of the [mother’s] life or health.” The Nebraska legislature passed a law prohibiting any “partial birth abortion” unless that procedure was deemed necessary to save the mother’s life. It defined “partial birth abortion” as a procedure in which the doctor “partially delivers vaginally a living unborn child before killing the…child,” and defined the latter phrase to mean “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.” Violation of the law was a felony, and the law provided for the automatic revocation of a convicted doctor’s state license to practice medicine. Dr. Leroy Carhart, a Nebraska physician who performed abortions in a clinical setting, brought suit in federal court seeking a declaration that the statute violated the federal Constitution. The district court held the statute unconstitutional, the Eighth Circuit affirmed, and the Supreme Court granted certiorari.
Opinion of the Court: Breyer, Ginsburg, O’Connor, Souter, Stevens.
Concurring opinions: Stevens, Ginsburg; O’Connor; Ginsburg, Stevens.
Dissenting opinions: Rehnquist; Scalia; Kennedy, Rehnquist; Thomas, Rehnquist, Scalia.
MR. JUSTICE BREYER delivered the opinion of the Court.
We again consider the right to an abortion. We understand the controversial nature of the problem. Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child; they recoil at the thought of a law that would permit it. Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering. Taking account of these virtually irreconcilable points of view, aware that constitutional law must govern a society whose different members sincerely hold directly opposing views, and considering the matter in light of the Constitution’s guarantees of fundamental individual liberty, this Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman’s right to choose. Roe v. Wade (1973); Planned Parenthood of Southeastern Pa. v. Casey (1992). We shall not revisit those legal principles. Rather, we apply them to the circumstances of this case.
Three established principles determine the issue before us. We shall set them forth in the language of the joint opinion in Casey. 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:
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.…
Approximately 10% of all abortions are performed during the second trimester of pregnancy (12 to 24 weeks). Today, …the medical profession has switched to surgical procedures for most second trimester abortions. The most commonly used procedure is called “dilation and evacuation” (D&E).… 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.
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.
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.…
[A] variation of the D&E procedure … [is] referred to as an “intact D&E.” Like other versions of the D&E 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&E 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&E is also known commonly as “dilation and extraction,” or D&X.
The American College of Obstetricians and Gynecologists describes the D&X procedure [as] … 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.
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 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.”
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. We shall discuss each of these reasons in turn.
The Casey joint opinion reiterated what the Court held in Roe; that “ ‘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 quoted standard … 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.
Justice Thomas says that the cases just cited limit this principle to situations where the pregnancy itself creates a threat to health. He is wrong. The cited cases, reaffirmed in Casey, recognize that a State cannot subject women’s health to significant risks both in that context, and also where state regulations force women to use riskier methods of abortion. Our cases have repeatedly invalidated statutes that in the process of regulating the methods of abortion, imposed significant health risks. They make clear that a risk to a woman’s health is the same whether it happens to arise from regulating a particular method of abortion, or from barring abortion entirely. Our holding does not go beyond those cases, as ratified in Casey.
Nebraska responds that the law does not require a health exception unless there is a need for such an exception. And here there is no such need, it says. It argues that “safe alternatives remain available” and “a ban on partial-birth abortion/D&X would create no risk to the health of women.” The problem for Nebraska is that the parties strongly contested this factual question in the trial court below; and the findings and evidence support Dr. Carhart. The State fails to demonstrate that banning D&X without a health exception may not create significant health risks for women, because the record shows that significant medical authority supports the proposition that in some circumstances, D&X would be the safest procedure.…
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.
Our earlier discussion of the D&E procedure shows that it falls within the statutory prohibition. The statute forbids “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.” We do not understand how one could distinguish, using this language, between D&E (where a foot or arm is drawn through the cervix) and D&X (where the body up to the head is drawn through the cervix). Evidence before the trial court makes clear that D&E will often involve a physician pulling a “substantial portion” of a still living fetus, say, an arm or leg, into the vagina prior to the death of the fetus. Indeed D&E involves dismemberment that commonly occurs only when the fetus meets resistance that restricts the motion of the fetus: “The dismemberment occurs between the traction of … [the] instrument and the counteraction of the internal os of the cervix.” And these events often do not occur until after a portion of a living fetus has been pulled into the vagina.
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 language does not track the medical differences between D&E and D&X—though it would have been a simple matter, for example, to provide an exception for the performance of D&E and other abortion procedures. Nor does the statute anywhere suggest that its application turns on whether a portion of the fetus’ body is drawn into the vagina as part of a process to extract an intact fetus after collapsing the head as opposed to a process that would dismember the fetus. Thus, the dissenters’ argument that the law was generally intended to bar D&X can be both correct and irrelevant. The relevant question is not whether the legislature wanted to ban D&X; it is whether the law was intended to apply only to D&X. The plain language covers both procedures.…
The Nebraska State Attorney General argues that the statute does differentiate between the two procedures. He says that the statutory words “substantial portion” mean “the child up to the head.” He consequently denies the statute’s application where the physician introduces into the birth canal a fetal arm or leg or anything less than the entire fetal body. He argues further that we must defer to his views about the meaning of the state statute.
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.…For another, our precedent warns against accepting as “authoritative” an Attorney General’s interpretation of state law when “the Attorney General does not bind the state courts or local law enforcement authorities.” Under Nebraska law, the Attorney General’s interpretative views do not bind the state courts.…
Regardless, even were we to grant the Attorney General’s views “substantial weight,” we still have to reject his interpretation, for it conflicts with the statutory language discussed … above. The Attorney General, echoed by the dissents, tries to overcome that language by relying on other language in the statute; in particular, the words “partial birth abortion,” a term ordinarily associated with the D&X procedure, and the words “partially delivers vaginally a living unborn child.” But these words cannot help the Attorney General. They are subject to the statute’s further explicit statutory definition, specifying that both terms include “delivering into the vagina a living unborn child, or a substantial portion thereof.” When a statute includes an explicit definition, we must follow that definition, even if it varies from that term’s ordinary meaning.…
[U]sing 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 pre-viability 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.
The judgment of the Court of Appeals is Affirmed.
MR. JUSTICE STEVENS, with whom MS. 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 respective 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.
MS. JUSTICE O’CONNOR concurring.
…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 (D&X) procedure, but also the dilation and evacuation(D&E) procedure, “the most commonly used method for performing pre-viability second trimester abortions.” The statute defines the banned procedure 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.” As the Court explains, the medical evidence establishes that the D&E procedure is included in this definition. Thus, it is not possible to interpret the statute’s language as applying only to the D&X procedure.…
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. As we held in Casey, an abortion regulation constitutes an undue burden if it “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” 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.
MR. 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.…
But the Court gives a second and independent reason for invalidating this humane (not to say anti-barbarian) law: That it fails to allow an exception for the situation in which the abortionist believes that this live-birth method of destroying the child might be safer for the woman. (As pointed out by Justice Thomas, and elaborated upon by Justice Kennedy, there is no good reason to believe this is ever the case, but—who knows?—it sometime might be.)
I have joined Justice Thomas’s dissent because I agree that today’s decision is an “unprecedented expansion” of our prior cases, “is not mandated” by Casey’s “undue burden” test, and can even be called (though this pushes me to the limit of my belief) “obviously irreconcilable with Casey’s explication of what its undue-burden standard requires.” But I never put much stock in Casey’s explication of the inexplicable. In the last analysis, my judgment that Casey does not support today’s tragic result can be traced to the fact that what I consider to be an “undue burden” is different from what the majority considers to be an “undue burden”’—a conclusion that can not be demonstrated true or false by factual inquiry or legal reasoning. It is a value judgment, dependent upon how much one respects (or believes society ought to respect) the life of a partially delivered fetus, and how much one respects (or believes society ought to respect) the freedom of the woman who gave it life to kill it. Evidently, the five Justices in today’s majority value the former less, or the latter more, (or both), than the four of us in dissent. Case closed. There is no cause for anyone who believes in Casey to feel betrayed by this outcome. It has been arrived at by precisely the process Casey promised—a democratic vote by nine lawyers, not on the question whether the text of the Constitution has anything to say about this subject (it obviously does not); nor even on the question (also appropriate for lawyers) whether the legal traditions of the American people would have sustained such a limitation upon abortion (they obviously would); but upon the pure policy question whether this limitation upon abortion is “undue”— i.e., goes too far.
MR. JUSTICE KENNEDY, with whom THE CHIEF JUSTICE joins, dissenting.
For close to two decades after Roe v. Wade (1973), 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, as limited by the woman’s right the Court restated and again guaranteed. Planned Parenthood of Southeastern Pennsylvania 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.
States also have an interest in forbidding medical procedures which, in the State’s reasonable determination, might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus. Abortion, Casey held, has consequences beyond the woman and her fetus. The States’ interests in regulating are of concomitant extension. Casey recognized that abortion is, “fraught with consequences for … the persons who perform and assist in the procedure [and for] society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life.” …
Nebraska was entitled to find the existence of a consequential moral difference between the procedures. We are referred to substantial medical authority that D&X perverts the natural birth process to a greater degree than D&E, commandeering the live birth process until the skull is pierced. American Medical Association (AMA) publications describe the D&X abortion method as “ethically wrong.” The D&X differs from the D&E because in the D&X the fetus is “killed outside of the womb” where the fetus has “‘an autonomy which separates it from the right of the woman to choose treatments for her own body.” Witnesses to the procedure relate that the fingers and feet of the fetus are moving prior to the piercing of the skull; when the scissors are inserted in the back of the head, the fetus’ body, wholly outside the woman’s body and alive, reacts as though startled and goes limp. D&X’s stronger resemblance to infanticide means Nebraska could conclude the procedure presents a greater risk of disrespect for life and a consequent greater risk to the profession and society, which depend for their sustenance upon reciprocal recognition of dignity and respect. The Court is without authority to second-guess this conclusion.
Those who oppose abortion would agree, indeed would insist, that both procedures are subject to the most severe moral condemnation, condemnation reserved for the most repulsive human conduct. This is not inconsistent, however, with the further proposition that as an ethical and moral matter D&X is distinct from D&E and is a more serious concern for medical ethics and the morality of the larger society the medical profession must serve. Nebraska must obey the legal regime which has declared the right of the woman to have an abortion before viability. Yet it retains its power to adopt regulations which do not impose an undue burden on the woman’s right. By its regulation, Nebraska instructs all participants in the abortion process, including the mother, of its moral judgment that all life, including the life of the unborn, is to be respected. The participants, Nebraska has determined, cannot be indifferent to the procedure used and must refrain from using the natural delivery process to kill the fetus. The differentiation between the procedures is itself a moral statement, serving to promote respect for human life; and if the woman and her physician in contemplating the moral consequences of the prohibited procedure conclude that grave moral consequences pertain to the permitted abortion process as well, the choice to elect or not to elect abortion is more informed; and the policy of promoting respect for life is advanced.
It ill-serves the Court, its institutional position, and the constitutional sources it seeks to invoke to refuse to issue a forthright affirmation of Nebraska’s right to declare that critical moral differences exist between the two procedures. The natural birth process has been appropriated; yet the Court refuses to hear the State’s voice in defining its interests in its law. The Court’s holding contradicts Casey’s assurance that the State’s constitutional position in the realm of promoting respect for life is more than marginal.…
I am in full agreement with Justice Thomas that the appropriate Casey inquiry is not, as the Court would have it, whether the State is preventing an abortionist from doing something that, in his medical Judgment, he believes to be the most appropriate course of treatment. Casey addressed the question “whether the State can resolve … philosophic questions [about abortion] in such a definitive way that a woman lacks all choice in the matter.” We decided the issue against the State, holding that a woman cannot be deprived of the opportunity to make reproductive decisions. Casey made it quite evident, however, that the State has substantial concerns for childbirth and the life of the unborn and may enact laws “which in no real sense depriv[e] women of the ultimate decision.” Laws having the “purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” are prohibited. Nebraska’s law does not have this purpose or effect.…
No studies support the contention that the D&X abortion method is safer than other abortion methods. … Substantial evidence supports Nebraska’s conclusion that its law denies no woman a safe abortion. The most to be said for the D&X is it may present an unquantified lower risk of complication for a particular patient but that other proven safe procedures remain available even for this patient. Under these circumstances, the Court is wrong to limit its inquiry to the relative physical safety of the two procedures, with the slightest potential difference requiring the invalidation of the law.…
In light of divided medical opinion on the propriety of the partial-birth abortion technique (both in terms of physical safety and ethical practice) and the vital interests asserted by Nebraska in its law, one 1s left to ask what the first Justice Harlan asked: “Upon what sound principles as to the relations existing between the different departments of government can the court review this action of the legislature?”
The Court’s next holding is that Nebraska’s ban forbids both the D&X procedure and the more common D&E procedure. In so ruling the Court misapplies settled doctrines of statutory construction and contradicts Casey’s premise that the States have a vital constitutional position in the abortion debate. I agree with the careful statutory analysis conducted by Justice Thomas.…
…A commonsense understanding of the statute’s reference to “partial-birth abortion” demonstrates its intended reach and provides all citizens the fair warning required by the law.… The AMA does not disagree. It writes: “The partial birth abortion legislation is by its very name aimed exclusively at a procedure by which a living fetus is intentionally and deliberately given partial birth and delivered for the purpose of killing it. There is no other abortion procedure which could be confused with that description.” Casey disavows strict scrutiny review; and Nebraska must be afforded leeway when attempting to regulate the medical profession. To hold the statute covers the D&E, the Court must disagree with the AMA and disregard the known intent of the legislature, adequately expressed in the statute.…
The majority and, even more so, the concurring opinion by Justice O’Connor, ignore the settled rule against deciding unnecessary constitutional questions. The State of Nebraska conceded, under its understanding of Casey, that if this law must be interpreted to bar D&E as well as D&X it is unconstitutional. Since the majority concludes this is indeed the case, that should have been the end of the matter. Yet the Court and Justice O’Connor go much farther. They conclude that the statute requires a health exception which, for all practical purposes and certainly in the circumstances of this case, allows the physician to make the determination in his own professional judgment. This is an immense constitutional holding. It is unnecessary; and, for the reasons I have sought to explain, it is incorrect. While it is not clear which of the two halves of the majority opinion is dictum, both are wrong.…
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.
From the decision, the reasoning, and the judgment, I dissent.
MR. JUSTICE THOMAS, with whom THE CHIEF JUSTICE and MR. JUSTICE SCALIA join, dissenting.
…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.…
The majority and Justice O’Connor reject the plain language of the statutory definition, refuse to read that definition in light of the statutory reference to “partial birth abortion,” and ignore the doctrine of constitutional avoidance. In so doing, they offer scant statutory analysis of their own. In their brief analyses, the majority and Justice O’Connor disregard all of the statutory language except for the final definitional sentence, thereby violating the fundamental canon of construction that statutes are to be read as a whole.…
[T]he majority and Justice O’Connor argue that this Court generally defers to lower federal courts’ interpretations of state law. However, a decision drafted by Justice O’Connor, which she inexplicably fails to discuss, Frisby v. Schultz (1988), makes clear why deference is inappropriate here. As Justice O’Connor explained in that case: “[W]hile we ordinarily defer to lower court constructions of state statutes, We do not invariably do so. We are particularly reluctant to defer when the lower courts have fallen into plain error, which is precisely the situation presented here. To the extent they endorsed a broad reading of the ordinance, the lower courts tan afoul of the well-established principle that statutes will be interpreted to avoid constitutional difficulties.”
…[T]he majority speculates that some Nebraska prosecutor may attempt to stretch the statute to apply it to D&E. But a state statute is not unconstitutional on its face merely because we can imagine an aggressive prosecutor who would attempt an overly aggressive application of the statute. We have noted that “ ‘[w]ords inevitably contain germs of uncertainty.’ ” We do not give statutes the broadest definition imaginable. Rather, we ask whether “the ordinary person exercising ordinary common sense can sufficiently understand and comply with [the statute].” While a creative legal mind might be able to stretch the plain language of the Nebraska statute to apply to D&E, “citizens who desire to obey the statute will have no difficulty in understanding it.”
Finally, the majority discusses at some length the reasons it will not defer to the interpretation of the statute proffered by the Nebraska Attorney General, despite the Attorney General’s repeated representations to this Court that his State will not apply the partial birth abortion statute to D&E. The fact that the Court declines to defer to the interpretation of the Attorney General is not, however, a reason to give the statute a contrary representation. Even without according the Attorney General’s view any particular respect, we should agree with his interpretation because it is undoubtedly the correct one. Moreover, Justice O’Connor has noted that the Court should adopt a narrow interpretation of a state statute when it is supported by the principle that statutes will be interpreted to avoid constitutional difficulties as well as by “the representations of counsel … at oral argument.” Such an approach is particularly appropriate in this case because, as the majority notes, Nebraska courts accord the Nebraska Attorney General’s interpretations of state statutes “substantial weight.” Therefore, any renegade prosecutor bringing criminal charges against a physician for performing a D&E would find himself confronted with a contrary interpretation of the statute by the Nebraska Attorney General, and, I assume, a judge who both possessed common sense and was aware of the rule of lenity.…
…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. Therefore, Justice O’Connor’s assurance that the constitutional failings of Nebraska’s statute can be easily fixed is illusory. 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.…
I respectfully dissent.