Stenberg v. Carhart
Encyclopedia
Stenberg v. Carhart, 530 U.S. 914
(2000), is a case heard by the Supreme Court of the United States
dealing with a Nebraska
law which made performing partial-birth abortion illegal, except where necessary to save the life of the mother. Nebraska physician
s who performed the procedure contrary to the law were subject to having their medical licenses revoked. Nebraska, like many states, banned the procedure on the basis of public morality. The Court struck down the law, finding the Nebraska statute criminalizing "partial birth abortion[s]" violated the Due Process Clause of the United States Constitution
, as interpreted in Planned Parenthood v. Casey
and Roe v. Wade
. This case dealt with pre-viability second trimester abortions (most abortions occur during the first trimester
).
, a Nebraska physician who specialized in late-term abortions, brought suit against Don Stenberg
, the Attorney General
of Nebraska, seeking declaratory judgment
that a state law banning certain forms of abortion
was unconstitutional, based on the undue burden test mentioned by a dissenting opinion in Akron v. Akron Center for Reproductive Health and by the Court in Planned Parenthood v. Casey
. Both a federal district court
and the U.S. Court of Appeals
ruled in favor of Carhart before the case was appealed to the Supreme Court.
The Nebraska statute prohibited "partial birth abortion", which it defined as any abortion in which the physician "partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery." The most common type of abortion performed is suction-aspiration abortion
which consists of a vacuum tube inserted into the uterus
; others consist of what is known as "D&E" (dilation and evacuation
), which is usually used during the second trimester because of the increased amount of fetal material. The procedure dilates the cervix
and removes some fetal material with non-vacuum instruments, and, in some cases, uses curettage inside the uterus so that fetal material can be evacuated. Dr. Carhart wanted to use a modified version of this called "D&X" (Dilation and Extraction
), which, rather than commencing curettage inside the uterus, extracts part of the fetus first and then begins the process of dismemberment. Carhart stated that he wanted to perform this procedure because he believed it would be safer and would involve fewer risks for the women; it lowered the risk of leaving potentially harmful fetal tissue in the uterus, and it minimized the number of instruments physicians needed to use.
Experts in fetal development provide markedly different assessments of the kind and degree of pain (if any) experienced by the fetus (see Fetal pain
). Although in the second and third trimesters the nervous system
is largely in place, the level of consciousness or awareness of the fetus is a matter of conjecture. Experiments aimed at measuring fetal pain have yielded results that are somewhat open to interpretation, given that measurable reactions of the fetus to stimuli may not correspond directly to an adult experience of pain. Many medical authorities affirm that at the stage of pregnancy when this procedure is performed, the fetus has not reached what the medical community has defined as viability, the stage at which a developing fetus can be expected to live if removed from the uterus (usually at five months gestation, with medical assistance, although the viability threshold is retreating with medical advances).
The medical and scientific questions surrounding partial-birth abortion are impacted in the public arena by political and special interest considerations, resulting in a certain degree of media "hype" surrounding this case. Proponents of abortion rights on the one hand and the right-to-life on the other both decry what they describe as "myths" regarding this procedure that have passed into mainstream American debate on the issue.
, in writing the opinion of the Court, cited Planned Parenthood v. Casey
and said that any abortion law that imposed an undue burden on a woman's "right to choose" (abortion) was unconstitutional. He said that causing those who procure abortions to "fear prosecution, conviction, and imprisonment" was an undue burden, and therefore declared the law to be against the Constitution. Justices John Paul Stevens
, Ruth Bader Ginsburg
, David Souter
, and Sandra Day O'Connor
all agreed that the law was unconstitutional, but Ginsburg wrote a separate opinion, as did O'Connor. Ginsburg stated plainly that a state could not force physicians to use procedures other than what they felt in their own judgment to be the safest, that this was part of the "life and liberty" protected under the Constitution. O'Connor agreed, saying that any such procedural law would have to be applied only to prevent unnecessary partial-birth abortions, and would have to include an exception for the health of the woman (as this law did not). Justices Stevens also filed a separate opinion. He noted that government had no right to force doctors to perform any procedure other than what they felt would be the safest.
dissented. Kennedy claimed this type of law was allowed by their ruling in Planned Parenthood v. Casey
, which allowed laws to preserve prenatal life to a certain extent. He called Sandra Day O'Connor
's behavior a "repudiation" of the understandings and assurances given in Casey. Justice Kennedy also detailed what he deemed a constitutionally protected alternative to partial-birth abortion.
This was a far cry from Justice Clarence Thomas
' dissent, which stated that abortion was not a right contained in the Constitution, and sharply criticized the majority and concurring opinions. Chief Justice William Rehnquist
, along with Antonin Scalia
, and Thomas have consistently said that they do not believe abortion is a protected right, and have pointed out that "privacy" is not explicitly mentioned in the Constitution. Thomas also pointed out in his dissenting opinion that even if abortion was a woman's right, the law in question was not designed to strike at the right itself. He reminded the others that many groups, including even the American Medical Association
, had concluded that partial-birth abortion was very different from other forms of abortion, and was often considered infanticide
. Thomas further noted that the gruesome nature of some partial-birth abortions has caused personal trauma in the doctors performing them. In a short separate opinion, Chief Justice Rehnquist stated that he did not join Casey but felt that Justice Kennedy had applied its precedent correctly, and thus joined his opinion.
In his dissent, Justice Scalia recalled his prior dissent in Casey in which he had criticized the undue burden standard as "doubtful in application as it is unprincipled in origin." What constitutes an undue burden is a value judgment, argued Scalia; it should therefore be no surprise that the Court split on whether the Nebraska statute constitutes an undue burden. Scalia moreover chastised Kennedy for feeling betrayed by the majority. Scalia declared that the Stenberg decision was not "a regrettable misapplication of Casey,"—as Kennedy claimed—but "Caseys logical and entirely predictable consequence." Denouncing the undue burden standard of Casey as illegitimate, Scalia called for Casey to be overruled.
. This law did not include an exception for the health of the woman, as Justice O'Connor said it must. Congress inserted findings into the law saying that the procedure is never needed to protect maternal health. Although several federal judges struck down this federal law, citing the precedent of Stenberg v. Carhart, it was eventually upheld by the Supreme Court in Gonzales v. Carhart
.
The Supreme Court case of Gonzales v. Carhart
concerns similar questions as those in Stenberg, but this time in the context of a federal statute. The decision in Gonzales v. Carhart has narrowed the holding in this case.
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(2000), is a case heard by the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
dealing with a Nebraska
Nebraska
Nebraska is a state on the Great Plains of the Midwestern United States. The state's capital is Lincoln and its largest city is Omaha, on the Missouri River....
law which made performing partial-birth abortion illegal, except where necessary to save the life of the mother. Nebraska physician
Physician
A physician is a health care provider who practices the profession of medicine, which is concerned with promoting, maintaining or restoring human health through the study, diagnosis, and treatment of disease, injury and other physical and mental impairments...
s who performed the procedure contrary to the law were subject to having their medical licenses revoked. Nebraska, like many states, banned the procedure on the basis of public morality. The Court struck down the law, finding the Nebraska statute criminalizing "partial birth abortion[s]" violated the Due Process Clause of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, as interpreted in Planned Parenthood v. Casey
Planned Parenthood v. Casey
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 was a case decided by the Supreme Court of the United States in which the constitutionality of several Pennsylvania state regulations regarding abortion were challenged...
and Roe v. Wade
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
. This case dealt with pre-viability second trimester abortions (most abortions occur during the first trimester
Abortion in the United States
Abortion in the United States has been legal in every state since the United States Supreme Court decision in Roe v. Wade, on January 22, 1973...
).
History
LeRoy CarhartLeroy Carhart
LeRoy Harrison Carhart is an American physician from Nebraska who became well known for his participation in the Supreme Court cases Stenberg v. Carhart and Gonzales v. Carhart, both of which dealt with intact dilation and extraction , a controversial abortion procedure.-Biography:Carhart is a...
, a Nebraska physician who specialized in late-term abortions, brought suit against Don Stenberg
Don Stenberg
Don Stenberg is a Republican politician and attorney from Nebraska. He served as Attorney General of Nebraska from 1991 to 2003 and currently serves as State Treasurer of Nebraska to which he took office in 2011. He also served as legal counsel to Governor Charles Thone from 1979 to 1983.-Stenberg v...
, the Attorney General
Attorney General
In most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may also have executive responsibility for law enforcement or responsibility for public prosecutions.The term is used to refer to any person...
of Nebraska, seeking declaratory judgment
Declaratory judgment
A declaratory judgment is a judgment of a court in a civil case which declares the rights, duties, or obligations of one or more parties in a dispute. A declaratory judgment is legally binding, but it does not order any action by a party. In this way, the declaratory judgment is like an action to...
that a state law banning certain forms of abortion
Abortion
Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced...
was unconstitutional, based on the undue burden test mentioned by a dissenting opinion in Akron v. Akron Center for Reproductive Health and by the Court in Planned Parenthood v. Casey
Planned Parenthood v. Casey
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 was a case decided by the Supreme Court of the United States in which the constitutionality of several Pennsylvania state regulations regarding abortion were challenged...
. Both a federal district court
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
and the U.S. Court of Appeals
United States court of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal court system...
ruled in favor of Carhart before the case was appealed to the Supreme Court.
The Nebraska statute prohibited "partial birth abortion", which it defined as any abortion in which the physician "partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery." The most common type of abortion performed is suction-aspiration abortion
Suction-aspiration abortion
Vacuum or suction aspiration uses aspiration to remove uterine contents through the cervix. It may be used as a method of induced abortion, a therapeutic procedure used after miscarriage, or a procedure to obtain a sample for endometrial biopsy. The rate of infection is lower than any other...
which consists of a vacuum tube inserted into the uterus
Uterus
The uterus or womb is a major female hormone-responsive reproductive sex organ of most mammals including humans. One end, the cervix, opens into the vagina, while the other is connected to one or both fallopian tubes, depending on the species...
; others consist of what is known as "D&E" (dilation and evacuation
Dilation and evacuation
Dilation and evacuation literally refers to the dilation of the cervix and surgical evacuation of the contents of the uterus...
), which is usually used during the second trimester because of the increased amount of fetal material. The procedure dilates the cervix
Cervix
The cervix is the lower, narrow portion of the uterus where it joins with the top end of the vagina. It is cylindrical or conical in shape and protrudes through the upper anterior vaginal wall...
and removes some fetal material with non-vacuum instruments, and, in some cases, uses curettage inside the uterus so that fetal material can be evacuated. Dr. Carhart wanted to use a modified version of this called "D&X" (Dilation and Extraction
Intact dilation and extraction
Intact dilation and extraction is a procedure done in late term abortion. It is also known as intact dilation and evacuation, dilation and extraction , intrauterine cranial decompression and, vernacularly in the United States, as partial birth abortion...
), which, rather than commencing curettage inside the uterus, extracts part of the fetus first and then begins the process of dismemberment. Carhart stated that he wanted to perform this procedure because he believed it would be safer and would involve fewer risks for the women; it lowered the risk of leaving potentially harmful fetal tissue in the uterus, and it minimized the number of instruments physicians needed to use.
Experts in fetal development provide markedly different assessments of the kind and degree of pain (if any) experienced by the fetus (see Fetal pain
Fetal pain
Neonatal perception is the study of the extent of somatosensory and other perceptual systems during pregnancy. In practical terms, this means the study of fetuses; none of the accepted indicators of perception are present in embryos....
). Although in the second and third trimesters the nervous system
Nervous system
The nervous system is an organ system containing a network of specialized cells called neurons that coordinate the actions of an animal and transmit signals between different parts of its body. In most animals the nervous system consists of two parts, central and peripheral. The central nervous...
is largely in place, the level of consciousness or awareness of the fetus is a matter of conjecture. Experiments aimed at measuring fetal pain have yielded results that are somewhat open to interpretation, given that measurable reactions of the fetus to stimuli may not correspond directly to an adult experience of pain. Many medical authorities affirm that at the stage of pregnancy when this procedure is performed, the fetus has not reached what the medical community has defined as viability, the stage at which a developing fetus can be expected to live if removed from the uterus (usually at five months gestation, with medical assistance, although the viability threshold is retreating with medical advances).
The medical and scientific questions surrounding partial-birth abortion are impacted in the public arena by political and special interest considerations, resulting in a certain degree of media "hype" surrounding this case. Proponents of abortion rights on the one hand and the right-to-life on the other both decry what they describe as "myths" regarding this procedure that have passed into mainstream American debate on the issue.
The U.S. Supreme Court Ruling
The case was argued in 2000, and several issues were brought up during the oral arguments. The first was the lack of an exception for the woman's health. The state of Nebraska took the position that D&X abortions were never medically necessary, meaning that an exception was not needed. Secondly, it was inquired on whether or not the law could be construed to apply to other forms of abortion, in which case it would violate the "right to privacy" interpreted from the Constitution, as described in the Roe and Casey decisions. The law had never been certified to the Supreme Court of Nebraska, as it had been challenged two days after the law was passed.Opinion of the court and concurring opinions
Justice Stephen BreyerStephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
, in writing the opinion of the Court, cited Planned Parenthood v. Casey
Planned Parenthood v. Casey
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 was a case decided by the Supreme Court of the United States in which the constitutionality of several Pennsylvania state regulations regarding abortion were challenged...
and said that any abortion law that imposed an undue burden on a woman's "right to choose" (abortion) was unconstitutional. He said that causing those who procure abortions to "fear prosecution, conviction, and imprisonment" was an undue burden, and therefore declared the law to be against the Constitution. Justices John Paul Stevens
John Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
, Ruth Bader Ginsburg
Ruth Bader Ginsburg
Ruth Joan Bader Ginsburg is an Associate Justice of the Supreme Court of the United States. Ginsburg was appointed by President Bill Clinton and took the oath of office on August 10, 1993. She is the second female justice and the first Jewish female justice.She is generally viewed as belonging to...
, David Souter
David Souter
David Hackett Souter is a former Associate Justice of the Supreme Court of the United States. He served from 1990 until his retirement on June 29, 2009. Appointed by President George H. W. Bush to fill the seat vacated by William J...
, and Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
all agreed that the law was unconstitutional, but Ginsburg wrote a separate opinion, as did O'Connor. Ginsburg stated plainly that a state could not force physicians to use procedures other than what they felt in their own judgment to be the safest, that this was part of the "life and liberty" protected under the Constitution. O'Connor agreed, saying that any such procedural law would have to be applied only to prevent unnecessary partial-birth abortions, and would have to include an exception for the health of the woman (as this law did not). Justices Stevens also filed a separate opinion. He noted that government had no right to force doctors to perform any procedure other than what they felt would be the safest.
Dissents
Justice Anthony KennedyAnthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
dissented. Kennedy claimed this type of law was allowed by their ruling in Planned Parenthood v. Casey
Planned Parenthood v. Casey
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 was a case decided by the Supreme Court of the United States in which the constitutionality of several Pennsylvania state regulations regarding abortion were challenged...
, which allowed laws to preserve prenatal life to a certain extent. He called Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
's behavior a "repudiation" of the understandings and assurances given in Casey. Justice Kennedy also detailed what he deemed a constitutionally protected alternative to partial-birth abortion.
This was a far cry from Justice Clarence Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
' dissent, which stated that abortion was not a right contained in the Constitution, and sharply criticized the majority and concurring opinions. Chief Justice William Rehnquist
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
, along with Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
, and Thomas have consistently said that they do not believe abortion is a protected right, and have pointed out that "privacy" is not explicitly mentioned in the Constitution. Thomas also pointed out in his dissenting opinion that even if abortion was a woman's right, the law in question was not designed to strike at the right itself. He reminded the others that many groups, including even the American Medical Association
American Medical Association
The American Medical Association , founded in 1847 and incorporated in 1897, is the largest association of medical doctors and medical students in the United States.-Scope and operations:...
, had concluded that partial-birth abortion was very different from other forms of abortion, and was often considered infanticide
Infanticide
Infanticide or infant homicide is the killing of a human infant. Neonaticide, a killing within 24 hours of a baby's birth, is most commonly done by the mother.In many past societies, certain forms of infanticide were considered permissible...
. Thomas further noted that the gruesome nature of some partial-birth abortions has caused personal trauma in the doctors performing them. In a short separate opinion, Chief Justice Rehnquist stated that he did not join Casey but felt that Justice Kennedy had applied its precedent correctly, and thus joined his opinion.
In his dissent, Justice Scalia recalled his prior dissent in Casey in which he had criticized the undue burden standard as "doubtful in application as it is unprincipled in origin." What constitutes an undue burden is a value judgment, argued Scalia; it should therefore be no surprise that the Court split on whether the Nebraska statute constitutes an undue burden. Scalia moreover chastised Kennedy for feeling betrayed by the majority. Scalia declared that the Stenberg decision was not "a regrettable misapplication of Casey,"—as Kennedy claimed—but "Caseys logical and entirely predictable consequence." Denouncing the undue burden standard of Casey as illegitimate, Scalia called for Casey to be overruled.
Effects of the Decision
By a 5-4 majority, the Nebraska law was struck down, as were all other state laws banning partial-birth abortion. In 2003, however, the federal government enacted a Partial-Birth Abortion Ban ActPartial-Birth Abortion Ban Act
The Partial-Birth Abortion Ban Act of 2003 is a United States law prohibiting a form of late-term abortion that the Act calls "partial-birth abortion", often referred to in medical literature as intact dilation and extraction...
. This law did not include an exception for the health of the woman, as Justice O'Connor said it must. Congress inserted findings into the law saying that the procedure is never needed to protect maternal health. Although several federal judges struck down this federal law, citing the precedent of Stenberg v. Carhart, it was eventually upheld by the Supreme Court in Gonzales v. Carhart
Gonzales v. Carhart
Gonzales v. Carhart, 550 U.S. 124 , is a United States Supreme Court case that upheld the Partial-Birth Abortion Ban Act of 2003. The case reached the high court after U.S. Attorney General Alberto Gonzales appealed a ruling of the United States Court of Appeals for the Eighth Circuit in favor of...
.
The Supreme Court case of Gonzales v. Carhart
Gonzales v. Carhart
Gonzales v. Carhart, 550 U.S. 124 , is a United States Supreme Court case that upheld the Partial-Birth Abortion Ban Act of 2003. The case reached the high court after U.S. Attorney General Alberto Gonzales appealed a ruling of the United States Court of Appeals for the Eighth Circuit in favor of...
concerns similar questions as those in Stenberg, but this time in the context of a federal statute. The decision in Gonzales v. Carhart has narrowed the holding in this case.