Stenberg v. Carhart

Last June, the Stenberg v. Carhart case went down in history along side Roe v. Wade and Planned Parenthood v. Casey. The case was argued before the Supreme Court on April 25, 2000. Each side was given thirty minutes to argue their points while the justices intervened to ask questions. A little over a month later, on June 28, 2000, the Supreme Court affirmed the lower courts decision that the Nebraska ban on partial-birth abortion was unconstitutional. The statute, which was enacted in 1997, stated:

Before the case was able to be brought to the Supreme Court’s attention it had to make its way through both the District Court and the Eighth Circuit Court of Appeals. On June 12, 1997, LeRoy Carhart, an abortion doctor upset with the statute, filed a complaint with the District Court claiming that the statute could be read to encompass and make criminal not only the D&X procedure (a procedure in which an unborn child is delivered up to the head before being killed) but also a fairly common abortion procedure, D&E (a procedure in which an unborn child is dismembered while in the uterus and bleeds to death). On July 2, 1998, the District Court issued a preliminary injunction against the enforcement of the act, and on August 10, 1998, the court found the law unconstitutional. The presiding judge, Richard G. Kopf, explained, "One simply cannot ascertain from the legislative history precisely what the legislature wanted to ban. We know the legislators wanted to ban ‘partial-birth' abortions, but that term is unknown in medical circles and it was poorly understood, if at all, by the legislature" (http://www.crlp.org/nepba .html). The attorney general of Nebraska, Don Stenberg, appealed this decision to the Eighth Circuit Court of Appeals. On September 24, 1999, the court affirmed the District Court’s ruling by a unanimous decision. The court explained, “The difficulty is that the statute covers a great deal more... Under the controlling precedents laid down by the Supreme Court, such a prohibition places an undue burden on the right of women to choose whether to have an abortion. It is therefore our duty to declare the statute invalid" (http://www.crlp.org/nepba.html). Again Stenberg appealed the ruling and was granted certiorari by the United States Supreme Court.

The court, in granting certiorari, agreed to answer the following questions: 1. “Whether the Eighth Circuit’s adoption of a broad unconstitutional reading of Nebraska’s ban on partial-birth abortion...violates fundamental rules of statutory construction and basic principles of federalism in contradiction of the clear direction of this Court in Webster v. Reproductive Health Services,” and 2. “whether the Eighth Circuit misapplied this Court’s instructions in Planned Parenthood v. Casey by finding that a law banning cruel and unusual methods of killing a partially-born child, is an ‘undue burden’ on the right to abortion” (http://www.crlp.org/pbaquest ions.html).

Amicus Curaie briefs were filed on behalf of Carhart by Senator Barbara Boxer, et al, Planned Parenthood of Wisconsin, American College of Obstetricians & Gynecologists, American Civil Liberties Union et al, Religious Coalition for Reproductive Choice et al, State of California Attorney General Bill Lockyer, Seventy-five Organizations Committed to Women’s Equality, Naral Foundation et al, and State of New York et al. Briefs filed on behalf of Stenberg were National Association of Prolife Nurses, Inc., State of Louisiana et al, State of Texas, Family Research Council, State of Wisconsin, United States Catholic Conference et al, Family First, Association of American Physicians & Surgeons et al, State of Virginia et al, American Center for Law and Justice et al, Feminists for Life of America et al, Agudath Israel, United States Representative Charles T. Canady et al, National Right to Life Committee, and Knights of Columbus (http://supreme.lp.findlaw.com/supreme_court/docket/aprdocket.html).

In his brief, Don Stenberg argues that the Nebraska statute does not apply to D&E and does not place a substantial obstacle in the path of a woman seeking an abortion. He explains that the statute has never been applied to or threatened D&E, the Chief Law Officer of Nebraska has explicitly disavowed any intent to apply the statute to D&E, and the plain language of the statute does not include D&E (http://supreme.lp.findlaw.com/supreme_court/briefs/99-830/99-830mo1 /brief/brief04.html). Also, Stenberg explains that the statute does not place an undue burden on a woman seeking an abortion because a health exception is not necessary in this case as safe alternative procedures still exist (http://supreme.lp.findlaw.com/supreme_court/briefs/99-830/99-830mo1/brief/brief05.html). Carhart’s brief argues that the statute prohibits most abortions, violates a woman’s right to privacy, and is vague (http://supreme.lp.findlaw.com/supreme_court /briefs/99-830/99-830mo2/brief/brief03.html).

After oral arguments and votes in conference, the Supreme Court, in a 5-4 decision, affirmed the rulings of the lower courts. The vote split along ideological lines with Breyer, Stevens, Souter, Ginsberg, and O’Connor in the majority and Rehnquist, Scalia, Thomas, and Kennedy in the minority.

Breyer wrote the majority opinion upon which Stevens, Souter, Ginsberg and O’Connor joined. The majority explained that in light of the precedents set by Roe (woman’s right to choose an abortion) and Casey (law can not place an “undue burden” on a woman seeking an abortion and must include a health exception) the statute violated the Constitution because it “lacked any exception for the preservation of the health of the mother,” and it “imposed an undue burden on a woman’s ability to choose a D&E abortion” (120 S.CT. 2597). They found that Nebraska’s arguments for not including a health exception were insufficient. They also explained that “even if the statute’s basic aim is to ban D&X, its language makes clear that it also coves a much broader category of procedures” (120 S.CT. 2597).

In a concurring opinion, Stevens joined by Ginsberg, concluded that it is “an irrational notion that (1) either D&E or D&X [is] more akin to infanticide than the other, or (2) the state furthered any legitimate interest by banning one but not the other” (120 S.CT. 2597). In another concurring opinion, Ginsberg joined by Stevens explained that the “statute did not save any fetus from destruction, for the statute targeted only a method of performing abortion,” and the “law prohibits the procedure because the state legislators seek to chip away at the private choice shielded by Roe v. Wade” (120 S.CT. 2597). The last concurring opinion, written by O’Connor, explains that the statute cannot be reconciled with the decision in Planned Parenthood v. Casey, but goes on to say that “a ban on partial birth abortion that proscribed only D&X and included a health exception to preserve the life and health of the mother would be constitutional” (120 S.CT. 2597).

The first of four dissenting opinions was written by Rehnquist. He explains that Planned Parenthood v. Casey was wrongly decided. The second, written by Scalia said “I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in this court‘s jurisprudence beside Korematsu and Dred Scott“ (120 S.CT. 2597). He calls the majority decision “policy-judgment-coached-as-law,” and explains that the court “ought to return the abortion issue to the people, where the Constitution, by its silence on the issue, left it” (120 S.CT 2597). The third and longest dissenting opinion was written by Kennedy and joined by Rehnquist. In general, it illustrated that the “decision invalidated a statute that advanced critical state interests, even though the statute (a) denied no woman the right to choose an abortion, and (b) placed no undue burden upon the right,” and the statute was well within the state’s capability to enact (120 S.CT. 2597). Kennedy explained that “the court misapplie[d] settled doctrines of statutory construction” when interpreting the law (120 S.Ct. 2597). The final dissent was written by Thomas and joined by Rehnquist and Scalia. This dissent explains that Roe v. Wade was wrongly decided and needed to be overturned. It explained that “although a state may permit abortion, nothing in the Constitution dictates that a state must do so” (120 S.CT. 2597). Also, Thomas criticized the way in which the majority interpreted the statute. He explained that “we interpret statutes according to their plain meaning and we do not strike down statutes susceptible of a narrowing construction” (120 S.Ct. 2597).

The Supreme Court ruling in this case has left virtually no American untouched. Everyone including abortion doctors, women seeking abortions, the pro-choice, states with relevantly similar laws, and the pro-life are affected, and nearly all had something to do or say in response to the final ruling. After their cause lost in court a pro-life legislator and two others decided to attack Carhart from another angel. They formed a partnership and bought the building that housed his abortion clinic and quickly served him with an eviction notice (“The Next Abortion Battle” 24). In addition, “Bellevue’s mayor says that he is going to ask realty agents in town not to help Carhart find another building for his practice” (“The Next Abortion Battle” 24). Republican Bob Schaffer said, "This court has rendered us a temporary hurdle which can be overcome, but God pity the children who will be lost in the meantime" (http://www.christianity. com/CC/article/1,1183,PTID2546|CHID|CIID133507,00.html). The president issued a statement immediately following the decision. He said, “I am pleased with the Supreme Court’s decision today in Stenberg v. Carhart....Today’s decision...marks an important victory for a woman’s freedom of choice” (http://ofcn.org/cyber.serv/teledem/pb/2000/jun/msg00313.htm). Not all those who are pro-choice were thrilled. The Center for Reproductive Law and Policy, which represented the Nebraska doctor who challenged the law, described the day of the ruling as one for ''Champagne and shivers'' because of the narrow ruling in the case (http://archives.nytimes .com/archives/search/ fastweb?getdoc+allyears2-qpass+db365+546652+2+wAAA+stenberg % 7Ev%7Ecarhart).

Sources “The Next Abortion Battle.” Newsweek. 10 July 2000: 24.

Neb. Rev. Stat S 28-326

120 S.Ct. 2597

http://www.crlp.org/nepba.html

http://www.crlp.org/pbaquestions.html

http://supreme.lp.findlaw.com/supreme_court/docket/aprdocket.html

http://supreme.lp.findlaw.com/supreme_court/briefs/99-830/99-830mo1/brief/brief04.html

http://supreme.lp.findlaw.com/supreme_court/briefs/99-830/99-830mo1/brief/brief05.html

http://supreme.lp.findlaw.com/supreme_court/briefs/99-830/99-830mo2/brief/brief03.html

http://www.christianity.com/CC/article/1,1183,PTID2546|CHID|CIID133507,00.html

http://ofcn.org/cyber.serv/teledem/pb/2000/jun/msg00313.htm

http://archives.nytimes.com/archives/search/ fastweb?getdoc+allyears2-qpass+ db365+ 546652 +2+wAAA+stenberg%7Ev%7Ecarhart