Stenberg v. Carhart - Opinion Announcement

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 99-830, Stenberg against Carhart, will be announced by Justice Breyer.

Argument of Justice Breyer

Mr. Breyer: This case concerns the right to an abortion.

We understand the immensely controversial nature of the problem.

Millions of Americans believe that life begins at conception and that consequently an abortion is like 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 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 in Roe v. Wade and then re-determined in Casey v. Planned Parenthood, that the Constitution offers basic protection to the woman’s right to choose.

We shall not revisit those basic legal principles.

Here, in this case, we simply apply the principles to the circumstances before us.

The Nebraska Statute that we consider says, “No, partial birth abortions shall be performed” in Nebraska, unless necessary to save the life of the mother.

The statute goes on to define partial birth abortion in more specific anatomical terms, it then applies to abortions performed before the fetus is viable, as well as those after viability.

We determined statute’s lawfulness by applying three basic principles set forth in Casey: the first principle is that prior to viability a “woman has a right to choose to terminate her pregnancy”; the second is that a “law which imposes an undue burden on” that decision is unconstitutional; the third as we understand it is that, a state can forbid an abortion only if it also maintains exceptions in its law, which exceptions will permit abortion “where it is necessary inappropriate medical judgment for the preservation of the life, or health of the mother”.

Now, we apply those three principles and in doing that we conclude that, the Nebraska Statute violates the Constitution.

For one thing, the statute is too broad.

It may well be aimed primarily at the partial birth abortion procedure.

A procedure used typically after the sixteenth week of pregnancy but before the fetus is viable.

A procedure that is known technically as a D&X Procedure, but as currently written, the statute sweeps well beyond that procedure and also forbids a different commonly used procedure.

A procedure used typically after the thirteenth week of pregnancy, but before the fetus is viable, which procedure is known technically as the D&E Procedure.

As Nebraska itself concedes, if the statute forbids not only D&X but also D&E, it places a “undue burden” on the woman’s right to choose and consequently violates the Constitution.

The parties disagree about whether it is reasonably possible to adopt a more narrow interpretation of the statute that would limit its scope, so that it went not at all beyond the D&X.

The only way we have been able to resolve this disagreement, is to examine the statute’s wording, in light of the two procedures, technical medical details.

We have therefore had to examine those technical medical details, explicitly and in depth, our opinion does that.

We conclude that the statute cannot be reasonably interpreted as if it were limited to the D&X procedure alone.

It covers the D&E procedure as well.

Consequently it violates the Constitution.

Nebraska’s ban on partial birth abortion also fails to meet the Constitution’s requirement that a statute not in danger a woman’s health when it regulates the methods of abortion.

Casey requires a health exception, where a procedure is “necessary in appropriate medical judgment for the preservation of the life or health of the mother."

Nebraska has provided an exception for the life, but not for the health of the mother.

The State argued that no health exception was needed because the D&X procedure is “never necessary to preserve the health of woman”, and we recognize some medical uncertainty about just, when, or whether the D&X Procedure is safer procedure, than alternative procedures.

But a substantial body of medical opinion believes that the D&X procedure may well prove safer for some patients.

If that body of opinion is right than the absence of a health exception will place some woman at an unnecessary risk of tragic health consequences.

After examining the matter closely, and in depth, we conclude that substantial medical authority does support the proposition that the statute’s ban will endanger the health of some woman.

Casey consequently requires a health exception.

The statute lacks that exception, it therefore violates the Constitution for this reason as well.

The Court’s opinion is joined by five members of the Court.

Three of those who have joined have also written separate concurring opinions, namely Justice Stevens, joined by Justice Ginsburg, Justice O’Connor and Justice Ginsburg joined by Justice Stevens.

Four members of the Court have written dissenting opinions, namely the Chief Justice, Justice Scalia, Justice Kennedy joined by the Chief Justice, and Justice Thomas joined by the Chief Justice and Justice Scalia.

Argument of Justice Thomas

Mr. Thomas: It behooves me to say a few words in dissent.

Abortion debates are as Justice Breyer said frequently among the most contentious in American society.

What distinguishes this case, however from many of the other abortion cases, is that the use of partial birth abortion is not an issue on which the American people, unlike this Court, have been deeply divided.

To the contrary, the State of Nebraska, the Nebraska legislature, adopted the statute before us by a vote of 99 to 1.

Many of the other 30 state legislatures that adopted partial birth abortions, bans in the last five year did so by similarly overwhelming margins.

The American Medical Association endorsed a congressional ban on the procedure, stating that it was not an acceptable medical practice and the vast majority of doctors, who perform abortions, decline to use this procedure.

The court nevertheless holds today, that Nebraska’s partial birth abortion ban is unconstitutional under this Court’s decision in Planned Parenthood versus Casey.

Because it imposes an undue burden on woman seeking abortions, I think, that this conclusion in indefensible.

To began with the court’s undue burden standard is no more legitimate today than it was when Casey was decided.

Casey like its predecessor, Roe versus Wade, wrongly deprived the people of this country of the right to determine whether the consequences of abortion to the unborn child and to society outweigh the burden of an unwanted pregnancy on the mother.

The Constitution leaves resolution of the abortion debate to the political process, not to this Court.

If they choose states may protect abortion on demand but nothing in the Constitution says, that they must do so.

Even assuming however, as the majority does that Casey’s undue burden standard governs this case, the majority’s decision is grievously wrong.

In Casey, the joined opinion defined undue burden to mean, that an abortion regulation is unconstitutional if it places a substantial obstacle in the woman’s path.

There is no justification for the majority’s conclusion that Nebraska’s partial birth abortion statute places such an obstacle in the path of any woman seeking an abortion.

It is necessary at the outset to address an argument made by two members of the majority that the partial birth abortion ban serves no legitimate state interest.

That it does should in a civilized society be indisputable.

During a partial birth abortion, the physician pulls the fetus from the woman by its legs, until only the head remains in uterus.

The physician takes a pair of scissors or some other sharp instrument and thrusts it into the fetus’s head to create a hole.

Then using a small vacuum tube, the physician literally sucks the fetus’s brain from its skull.

When the fetus’s head collapses, the physician will pull the head, the dead fetus from the woman’s body.

Despite the conclusion of thirty states that this procedure is too closely resembles infanticide, two members of the majority argue that it is ethically indistinguishable from any other forms of late term abortion.

There is not point in trying to argue otherwise.

My views and the views of the majority on the matter are simply irrelevant.

As Justice Kennedy explains in his dissenting opinion the issue is not whether members of the judiciary can see a difference between abortion procedures, it is whether Nebraska can.

The court’s refusal to recognize Nebraska’s right to declare a moral difference is a dispiriting disclosure of the illogic and illegitimacy of the court’s approach to the entire case.

Nebraska was entitled to find the existence of a consequential moral difference between the procedures.

The majority holds that the Nebraska Statute imposes an undue burden on women seeking abortions, because a statute which on its face applies only to partial birth abortion procedure, I have described should be read to prohibit a more commonly used method of abortion known as dilation and evacuation.

As I discussed in some detail in my dissent, the majority can reach this conclusion only by disregarding the plain words of the Nebraska statute, as well as long standing principles of statutory construction.

Federal Courts are required to construe any ambiguity in a state statute, so as to render it constitutional.

The majority turns this principle on its head by straining to find ambiguity were none exists so, as to render the statute unconstitutional.

Finally, the majority invents a new health exception requirement that dramatically expands our prior abortion cases and threatens to undue any state regulation of abortion procedures.

According to the majority, any prohibition of a particular abortion procedure is required to include a health exception, so long as medical opinion is divided on its relative safety.

For the reasons set forth in my dissent, the State of Nebraska was entitled to conclude that there was no reliable medical authority supporting use of the partial birth abortion procedure, but this fact is irrelevant to the Court’s decision.

In the majority’s view all that is actually required, is that any individual doctor reasonably believe that the method he wishes to employ is marginally safer than available alternatives.

Any doctor wishing to perform a partial birth abortion procedure could do so with impunity simply by insisting that he believe the procedure to be the safest for the woman.

It is impossible under the majority’s opinion for any state to effectively ban the partial birth abortion procedure because the individual physician’s judgment will always trump the states.

I think it is clear that the Constitution does not prohibit a state from banning this horrifying and rarely used procedure that many find hard to distinguish from infanticide.

It is inconceivable to me, as I am sure it will be to the people of Nebraska and 29 other States that this Court would hold otherwise.

As Justice Kennedy stated, today’s decision nullifies a law, expressing the will of the people Nebraska that medical procedures must be governed by intrinsic value of human life, including life of the unborn.

I am confident that future generations will read this Court’s opinion with astonishment and wonder how this institution strayed so far off course, but for today, I can offer no explanation.

The Court’s decision is indefensible.

I respectfully dissent.