Stenberg v. Carhart – Oral Argument – April 25, 2000

Media for Stenberg v. Carhart

Audio Transcription for Opinion Announcement – June 28, 2000 in Stenberg v. Carhart

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William H. Rehnquist:

We’ll hear argument now in Number 99-830, Don Stenberg v. Leroy Carhart.

Mr. Stenberg.

Donald B. Stenberg:

Mr. Chief Justice, and may it please the Court:

In Roe v. Wade, this Court said that there is no absolute right to terminate a pregnancy at whatever time, in whatever way, and for whatever reason a woman chooses.

With that legal principle, and the Casey undue burden test in mind, the issue here today is whether a State may prohibit a little-used form of abortion that borders on infanticide when safe, alternative forms of abortion remain available to women who seek abortions.

Clearly, the State can constitutionally ban some abortion procedures.

For example, the State can unquestionably prohibit an abortion procedure that is unsafe for the woman’s health.

Ruth Bader Ginsburg:

General Stenberg, I just would like to clarify one thing.

You say, borders on infanticide.

I thought that this case related only to pre-viability.

Is that not so?

Donald B. Stenberg:

Well, that… the statute would cover both pre-viability and post viability, Your Honor, but I believe it was the legislature’s observation that, whether viable or not, that it’s important–

Ruth Bader Ginsburg:

This case concerns only the pre-viable stage, is that not so?

Donald B. Stenberg:

–Yes.

That’s because the district judge… because Dr. Carhart testified that he did not perform post viability partial birth abortions, and therefore the Federal judge did not need to rule on the post-viability aspect of the statute.

The statute itself covers–

David H. Souter:

I take it–

Donald B. Stenberg:

–Covers both, Your Honor.

David H. Souter:

–I take it that save with respect to a… an exception to save the woman’s life, and so on, that post viability abortions are generally precluded, by the State.

Donald B. Stenberg:

I’m sorry, Your Honor.

David H. Souter:

Post viability abortions are generally prohibited, I assume, by separate statute.

Donald B. Stenberg:

Yes.

There is a separate statute that prohibits all post viability abortions except to save the life or for the health of the mother.

That is under another statute.

But I believe, Your Honor, Justice Ginsburg, that the State interest here is drawing a bright line between infanticide and abortion, and that’s such a strong State interest that 30 States in our Nation have addressed this issue and have voted to ban that procedure.

In fact, in Nebraska the sentiment was so strong on the State interest to draw a bright line between infanticide–

John Paul Stevens:

But General, isn’t the bright line between infanticide and abortion at the… a claim of viability?

Isn’t that the statute that draws that bright line?

Donald B. Stenberg:

–I think that 30 States–

John Paul Stevens:

It does draw that bright line, doesn’t it?

Donald B. Stenberg:

–Well, that would be a line.

That’s not the bright line, however, that the legislature drew in this instance, Your Honor.

John Paul Stevens:

No, but that is a bright line that separates post viability from pre-viability abortions, since one is legal and the other is illegal, under Nebraska law?

Donald B. Stenberg:

Well, that is under one Nebraska statute, that’s correct, Your Honor, but the legislature has also been concerned about the partial birth abortion procedure which led to the passage of this particular statute.

Antonin Scalia:

General Stenberg, I took it that what you meant when you said it bordered on infanticide had nothing to do with the viability of the fetus, but that the procedure looks more like infanticide–

Donald B. Stenberg:

Yes.

Antonin Scalia:

–when the child is killed outside the womb than when it is killed inside the womb, and therefore it can coarsen public perception to other forms of killing fetuses or children outside the womb.

Is that not what the legislature was concerned about?

Donald B. Stenberg:

That is precisely the point, Your Honor, and that is precisely what motivated the legislature of the State of Nebraska in this case.

In fact, the State interest here was so strong that the statute passed the Nebraska legislature with only one dissenting vote, with many pro-choice State legislators voting in favor of this ban on partial birth abortion.

Now, the respondent argues that drawing a bright line between abortion and infanticide is not a valid State interest.

The respondent argues that there are only two valid State interests, one being maternal health and the other essentially discouraging abortions.

However, Casey specifically recognized that other State interests could be weighed as part of the undue burden test, and at 505 U.S. 877 the Court said, quote, a statute which, while furthering this interest in potential life or some other valid State interest, and then goes on to describe the substantial obstacle test, so the Court recognized that there could be other State interests besides merely maternal health and discouraging abortions.

Now, the respondent next argues that even if there is a valid State interest, that it can only be asserted if it creates no burden on a woman’s right to have an abortion.

The respondent implicitly asks this Court to adopt a no-burden test, or perhaps reestablish a strict scrutiny test in place of Casey.

The respondent argues that, under the no-burden test that any State regulation which increases the health risk to a woman by even the slightest amount is unconstitutional.

This is contrary to Casey, which held… which upheld the 24-hour waiting period because it did not create, quote, a real health risk, unquote, or a, quote, a significant threat, unquote, to the health of a woman.

The respondent also asks this Court to in effect adopt an all-or-nothing test in place of the large fraction test to judge the facial constitutionality of abortion restrictions.

In other words, the respondent argues that unless a statute is constitutional in every conceivable application, it must be struck down as facially unconstitutional.

William H. Rehnquist:

Was this a facial challenge, General Stenberg?

Donald B. Stenberg:

This was pled as a facial challenge.

There’s some language in the district court decision as being applied.

However, the State has never applied this statute.

This lawsuit was filed within 2 or 3 or 4 days after the statute took effect.

The State has never had a chance to attempt to apply the statute.

John Paul Stevens:

But General Stenberg, in the very first paragraph of the Judge’s opinion it says, I do not reach the question of whether the law is facially invalid.

Donald B. Stenberg:

Well, I understand… and I mention–

John Paul Stevens:

He held it invalid as to this doctor.

Donald B. Stenberg:

–And frankly I think, Your Honor, that the district court was simply wrong in its characterization of this case.

The State has not had an opportunity to apply the statute to–

John Paul Stevens:

Well, the injunction is just limited to against this doctor and his patients, isn’t it?

Donald B. Stenberg:

–I think what the district court may have had in mind–

John Paul Stevens:

Well, am I correct in that?

Donald B. Stenberg:

–I’m sorry, Your Honor?

John Paul Stevens:

Am I correct that the injunction only applies to this doctor and his patients?

Donald B. Stenberg:

And similarly situated individuals, is the way I believe the court’s order read, Your Honor.

William H. Rehnquist:

How did the court of appeals… did the court of appeals say whether it was treating this as a facial challenge, or an as-applied challenge?

Donald B. Stenberg:

It seems… my reading of the circuit court was that they viewed it as an applied… or, excuse me, as a facial challenge.

I think what the district judge may have thought when he said, as applied, he may have meant as applied to pre-viability abortions, drawing the distinction that Dr. Carhart testified that he doesn’t do post viability abortions.

Sandra Day O’Connor:

Mr. Stenberg, do you take the position that the State of Nebraska could also prohibit the dilation and evacuation procedure for pre-viability abortions?

Donald B. Stenberg:

Well, under… under Danforth, Your Honor, that was still–

Sandra Day O’Connor:

Well, I just wanted your position.

Yes or no?

Donald B. Stenberg:

–For purposes of this case, the State’s position would be that the State could not prohibit the D&E procedure, but also the State has not attempted to prohibit the D&E procedure.

Sandra Day O’Connor:

I know that’s the position you take, but it is difficult to read the statute and be certain that that is so.

They’re both rather gruesome procedures, but in fact one may be very similar to the other–

Donald B. Stenberg:

I think–

Sandra Day O’Connor:

–and I’m not certain whether the statute might not prohibit the D&E procedure as well.

Donald B. Stenberg:

–It’s our position, Your Honor, that it does not prohibit the D&E procedure, and I’d like to address that question first from a, kind of an institutional standpoint and then turn specifically to the language of the statute.

In the absence of a decision interpreting this law by our State supreme court, the foremost legal authority on the proper interpretation of State law is the Office of the State Attorney General.

The Attorney General interprets the law, gives legal advice to State agencies, the Governor, our administrative agencies, appears in State court every week, appears before the Nebraska supreme court virtually every time that it’s in session interpreting and arguing points of State law.

A U.S. district court, by comparison, spends most of its time dealing with issues of Federal constitutional law and Federal statutory interpretation.

Anthony M. Kennedy:

Does the Attorney General in the State of Nebraska issue rulings or opinion letters?

Donald B. Stenberg:

We do, Your Honor.

We did not have the opportunity to do that.

We were not asked, while this statute was in the legislative process, to issue an interpretation.

But the point I want to make here is that there are approximately 20 of these cases in various stages in various Federal courts throughout the Nation and, at least so far as my staff can determine, no State Attorney General has interpreted this law or similar laws in their own States to ban the D&E procedure.

General Stenberg, one of the authorities that you cited for deference was the Arizonan’s case where there was a formal opinion of the State Attorney General, and yet when that case was ultimately decided by the State’s own supreme court, the Arizona supreme court, they rejected the formal opinion of the State Attorney General, so I think you can say that you deserve respectful consideration, but no more than that.

Ruth Bader Ginsburg:

We don’t know what the supreme court of your State would say about a position that you’re taking in litigation.

Donald B. Stenberg:

Well, I understand that, Your Honor.

Donald B. Stenberg:

I guess my point is, is that for the Court to do that, this Court would have to essentially tell the Attorneys General of approximately 20 States that each and every one of them misunderstood and misinterpreted their own State law, even though that is their principal business day-in and day-out, year-in and year-out.

Anthony M. Kennedy:

Well, outside of this litigation, has your office or the Attorney General’s office in Nebraska taken a formal position that this statute does not apply to the D&E procedure?

Donald B. Stenberg:

Well, our formal position was taken in the context of this litigation, Your Honor.

Anthony M. Kennedy:

Of this litigation, but not… in no other form and in no other venue have you made that statement or that representation?

Donald B. Stenberg:

No, Your Honor, but I would strongly recommend to this Court–

Sandra Day O’Connor:

Mr. Stenberg, let me ask you another question.

There is no exception under this statute, as I read it, for exceptions for the health of the woman, is that correct?

Donald B. Stenberg:

–That is correct, Your Honor, and it’s not necessary here because the D&E procedure remains available any time there is a health problem, and that procedure is available to–

Sandra Day O’Connor:

Was there no testimony to the effect that there might be circumstances in which the health of the woman required D&X versus D&E?

Donald B. Stenberg:

–There was… there was testimony that I would regard as speculation, Your Honor, but both the American Medical Association and the American College of Obstetricians and Gynecologists have studied this issue and said that they could not identify a single circumstance when a… in which a partial birth abortion, or a D&X abortion would be the only procedure available to save the life–

Ruth Bader Ginsburg:

Then why did you need an exception for life, because if you say the D&X procedure is never medically necessary, then what you’re saying about no need for a health exception would seem to apply as well to a life exception.

Donald B. Stenberg:

–I think from a legal standpoint it does apply.

I think the legislature acted, as legislative bodies do, as part of a political compromise, as part of a, perhaps an effort to be particularly careful when the life of the woman was involved, but I don’t believe that it would have been necessary in order to have a constitutional statute.

Stephen G. Breyer:

If I read these correctly, and I’m not a doctor, it seems to me a lot of the amici on the other side representing medical organizations say that there could be circumstances where this D&E procedure is more risky for the health of the woman.

For example, hurting the womb so perhaps the woman couldn’t have children in the future, and there are a whole lot of circumstances where labor-induced abortion… you know, induced labor can be more dangerous.

At least they list quite a few.

So what are we supposed to do where the medical opinion seems at least divided?

Donald B. Stenberg:

Oh, I think the medical opinion is divided, Your Honor, and I think what this Court should do when the medical opinion is divided is defer to the judgment of the State legislative body, which is the proper fact-finder when we’re dealing with–

Stephen G. Breyer:

All right.

Well, if the medical opinion is divided, and then if there are doctors who feel it is necessary for the health of the mother, then what is the excuse for the legislature not putting in an exception for health, since, after all, if you’re right on the facts, it would make no difference, and if you’re wrong on the facts it would violate Roe and Casey?

Donald B. Stenberg:

–Well, Your Honor, the fact is, is that the… even the experts who testified for Dr. Carhart here, that of the 60 or so doctors who have testified in these partial-birth abortion cases all across the country, only about three could be identified as actually performing this procedure themselves.

I don’t think that we can conclude, as a legislative policy matter, that there are only… that almost 60 of these doctors are not properly caring, or significantly creating a health risk for their women who are patients.

This is a practice that is not used even by most abortionists in the United States, and so it’s very difficult to conclude that there is any health risk when both ACOG and the American Medical Association specifically found that there are always alternatives available to a woman in need of abortion if there is a health concern.

But to return briefly to the overall picture of statutory construction, I would strongly recommend that this Court adopt the corollary proposed in the Friend of the Court brief authored by the State of Virginia, which basically says that when a Federal court is faced with a State statute that has not been construed by the State’s highest court, that the Federal court either defer to the opinion of the Attorney General or… of the State, or, if the Court is unwilling, or finds that that would not be a correct interpretation of the law, to certify the question to the State supreme court, because that way–

Ruth Bader Ginsburg:

Did you ask the district court to do that?

Donald B. Stenberg:

–Pardon me, Your Honor?

Ruth Bader Ginsburg:

Did you ask the district court to certify the question?

Donald B. Stenberg:

In our answer we… no, we did not.

We did ask the court in our answer to the complaint to abstain so that the State courts could hear the case.

Ruth Bader Ginsburg:

If you didn’t suggest it at the district court level, did you suggest it at the Eighth Circuit level?

Donald B. Stenberg:

No, Your Honor, we did not.

There was a conversation–

Ruth Bader Ginsburg:

You know, that’s one of the notable differences between Arizonans and this case, is they had the Attorney General from day 1 say to the district court, please certify it to our State supreme court.

They said the same thing to the Ninth Circuit.

Sandra Day O’Connor:

But you’re saying it for the first time to this Court.

Donald B. Stenberg:

–Well, yes, Your Honor, we did ask for abstention, but I suppose that–

Antonin Scalia:

Did the other side ask for it to be certified?

Donald B. Stenberg:

–Not to my knowledge.

There was a discussion, Your Honor, in closing arguments between Mr. Heller, counsel for Dr. Carhart, and the district judge, closing arguments on the preliminary injunction, and Judge Kopf brought up the issue of certification, and Mr. Heller did not strongly object, but his argument was that that would not resolve the controversy, that even if the State supreme court would narrow the construction to D&X the statute was still unconstitutional, and that therefore the controversy would not be resolved by referring it to the State supreme court and in essence suggested, therefore, that the district court proceed.

Antonin Scalia:

Of course, if a court was going to reach that resolution it wouldn’t make any sense for a court to certify it, would it?

Donald B. Stenberg:

If it was going to decide that the D&X was unconstitutional there would be no reason–

Antonin Scalia:

Even interpreted the way you say it should be interpreted, it would be wrong, I think, for the court to ask for certification.

Donald B. Stenberg:

–Well, precisely right, and in essence Judge Kopf commented, not in those words, but generally to that effect.

Ruth Bader Ginsburg:

So that it would be no more appropriate for us to certify it.

The same reasons would apply, but you’ve just asked us to do that.

Donald B. Stenberg:

Well, no, Your Honor.

If this Court is going to construe Nebraska’s statute contrary to the opinion of the Attorney General that it is limited to D&X… or, excuse me, that it includes D&E, then you should certify it, but if–

Antonin Scalia:

Should certify it only if that makes a difference to us.

Donald B. Stenberg:

–Only if it makes a difference.

If this–

Antonin Scalia:

You would acknowledge that we also should not certify if, even, we agree with your interpretation of the statute, we think it’s unconstitutional.

Donald B. Stenberg:

–Yes, that’s correct.

If–

Antonin Scalia:

I mean, if we interpret it that way.

Donald B. Stenberg:

–Yes.

The State’s position is, this statute bans the D&X procedure.

If this Court feels that ban is unconstitutional, then there would be no need to certify that question.

But if the question is, does this statute ban the D&E procedure or not, and this Court is uncertain on that, then it should certify that question to the State supreme court, rather than, in my opinion at least, incorrectly interpret Nebraska’s own statute.

David H. Souter:

Is it your position that the language of the statute itself is incapable of covering D&E perhaps because of the intent requirement, or is it your position that there is a gray area, and the better interpretation is the one in accordance with the legislative intent, which was simply to get to the D&X abortion?

Which is your position?

Donald B. Stenberg:

I think it’s fair to say the statute might be amenable to more than one construction, but we believe that the State’s construction is a reasonable one.

It’s one that would uphold, hopefully uphold the cons–

William H. Rehnquist:

Well, and we have held, have we not, that a Federal court in construing a State statute is obligated to, if there’s constitutional doubt to construe in a reasonable way that will avoid the constitutional doubt?

Donald B. Stenberg:

–Yes, that is exactly right, Your Honor, and that’s of course the rule that is followed by the Nebraska supreme court as well.

Ruth Bader Ginsburg:

Why is it, of course, because it wasn’t in Arizonans.

In Arizonans, the State Attorney General had offered a limited construction that would remain within constitutional bounds, and then the Arizona supreme court said no, we can’t read the statute that way.

We read the statute as, in covering much more than the Attorney General is arguing, and therefore it’s unconstitutional.

So whatever we say about our accounting with respect to Federal legislation, certainly we can’t say what the State can do with its own legislation.

Donald B. Stenberg:

That’s true, Your Honor, and that’s why I think the State certification rule offered by the State of Virginia removes the Federal court from a source of friction with the States by either accepting the interpretation placed on the statute by the Attorney General, or certifying to the State supreme–

Antonin Scalia:

We don’t always certify State questions to the State courts, especially when there’s only one interpretation that would render the statute constitutional and another one to render it unconstitutional.

It isn’t the Federal law that we must certify to State courts, is it?

Donald B. Stenberg:

–No, Your Honor, and I’m not suggesting that.

I only suggest certification if the Court places… it would place a different interpretation on the statute than placed on it by the State Attorney General.

John Paul Stevens:

General, may I ask you this question: let’s assume your construction of the statute is correct, and then the question is whether, could the State ban just D&X, and I understood you to say earlier that the American College of Obstetricians and Gynecologists said you don’t need this procedure in substance.

But I notice in their brief they have a sentence, depending on the physician’s skill and experience, the D&X procedure can be the most appropriate abortion procedure for some women in some circumstances, and then they have a footnote to the… a finding of the district court that there are at least 10 to 20 Nebraska women each year for whom the D&X is the most appropriate procedure.

Now, do we have to disagree with that finding to hold this statute valid?

Donald B. Stenberg:

No, I don’t believe so, Your Honor.

I think you need to accept that the legislature could consider all of the competing–

John Paul Stevens:

And it can ban the most appropriate procedure for a small number of women?

Donald B. Stenberg:

–Well, I don’t… I believe that the district court was simply erroneous–

John Paul Stevens:

Well, that’s what I’m asking you.

Do we have to find that finding erroneous in order to sustain your position?

Donald B. Stenberg:

–I don’t believe so, Your Honor.

Dr. Carhart testified that he attempts approximately 200 D&X abortions a year, but only successfully completes 10 or 20 of them, and a procedure that is completed so rarely, and that is practiced so rarely across the United States, even by persons in the practice of abortion, simply prohibiting that procedure can simply not be considered to present any significant threat to a woman’s health if that procedure’s not available.

David H. Souter:

Well, but I mean, you could make the same argument about the exception to save life.

There are very rarely instances, probably, in the whole spectrum of abortion practice in which the life exception is necessary, but you can’t thereby simply say, well, we’re going to allow the legislature to ignore those cases and eliminate a life exception even in your later term prohibition, so why, I guess, should the legislature be more cavalier in overruling medical judgment in this circumstance?

Donald B. Stenberg:

Well, I think the overwhelming weight of medical judgment, as opposed to the district court judge’s view, comes from the American Medical Association and ACOG that this particular procedure is never necessary to save the life or preserve the health of the woman.

David H. Souter:

Well, I think when we’re talking about most appropriate procedure, as Justice Stevens is quoting their brief as doing, I think normally we take… at least I take that to mean the procedure which is most conducive to an uncomplicated abortion and hence one that does not present any health risks that can be avoided, so I find your assumption hard to accept if we are entitled to take into consideration the position stated in the OB-GYN brief.

Donald B. Stenberg:

Well, under Casey, Your Honor, if the test were a no-burden test, or if there could be not even the smallest possible health consideration, then Casey would have come out differently on the 24-hour waiting period.

The whole concept of undue burden is the word, undue, and it seems the respondent wants to argue here for a no-burden test, so the–

Ruth Bader Ginsburg:

General Stenberg, I thought that Casey indicated that there were two interests throughout pregnancy, and one is the health of the woman and the other is the potential life of the fetus.

And whatever this particular ban does, it certainly can’t be urged that it is passed in the interests of the health of the woman, and it doesn’t serve the interests of the potential life of the fetus, because it just says, as you said, there’s always another way to do it.

So it doesn’t serve either of the purposes that we recognized in Casey as central, and therefore seems to be out of the balance that this Court set for legitimate pre-viability regulation.

Donald B. Stenberg:

–Well, as I mentioned earlier in my argument when I quoted from Casey, the Court in very general terms recognized other State interests, presumably to be recognized and defined in subsequent case law, and I believe that case is now here.

Mr. Chief Justice, if I might reserve the remainder of my–

Antonin Scalia:

Just, what does a waiting… a 24-hour waiting period, how does that affect either of those two interests?

Donald B. Stenberg:

–Well, there was–

Antonin Scalia:

Either the health of the… you know, the potential viability of the fetus or the health of the mother?

Doesn’t that have another interest in–

Donald B. Stenberg:

–There was testimony in the Casey decision, recorded in the Casey decision about, that the 24-hour waiting period might require more travel.

It might, in fact, lead to delays of more than 24 hours, that any delay leads to some theoretical increase, the passage of each day–

Antonin Scalia:

–The State interest that it protects is certainly not a State interest in either the health of the mother or the viability, the potential viability of the fetus, is it, the 24-hour wait?

Donald B. Stenberg:

–No.

That was… that–

Antonin Scalia:

It’s a totally different State interest.

Donald B. Stenberg:

–That’s correct, Your Honor.

David H. Souter:

You don’t think the waiting period, the object behind the waiting period is its tendency to induce second thoughts about having the abortion?

Donald B. Stenberg:

Yes, that is… that is… or, I think… I would… yes, Your Honor, I would think it–

David H. Souter:

So I think that does go to the potential life involved in the viability of the fetus, when the fetus, at the stage it would become viable and hence subject to full protection.

Donald B. Stenberg:

–Yes.

It could lead the mother to decide–

Ruth Bader Ginsburg:

And indeed wasn’t that the purpose that the State put forward, that by giving an interval, the woman might change her mind?

Donald B. Stenberg:

–Yes.

Ruth Bader Ginsburg:

So it quite clearly was intended to serve the… what the Court described as the interest in the potential life of the fetus.

Donald B. Stenberg:

Yes, that’s correct, Your Honor.

If I might reserve the rest of my time.

Very well, General Stenberg.

Mr. Heller, we’ll hear from you.

Simon Heller:

Mr. Chief Justice, and may it please the Court:

The Nebraska statute before this Court aims to eliminate the two central principles of Roe v. Wade and Planned Parenthood v. Casey.

Simon Heller:

It seeks to reverse the supremacy of women’s health over fetal interests throughout pregnancy, and it seeks to replace the viability line established in this Court’s jurisprudence with a new line, one based on the location of the fetus inside the woman’s body.

I want to focus on three main reasons that the Nebraska ban is unconstitutional.

First, it’s so broadly written that it could prohibit most second trimester abortions as they are performed in Nebraska today.

William H. Rehnquist:

Well, but are… are you defending the court of appeals’ construction of the statute here?

Simon Heller:

Yes.

William H. Rehnquist:

Do you think the court of appeals followed our admonition that when you have two plausible constructions available and one would avoid constitutional difficulty, you should follow that, even though it’s a State statute?

Simon Heller:

Absolutely, Your Honor.

That principle is… only holds where the two alternative constructions are both reasonable.

In this case, the standard canons of statutory construction, those applied by the Nebraska Supreme Court and this Court, all indicate that the Nebraska statute is much broader than a prohibition just on the D&X technique.

First, its plain language describes the elements of most second trimester abortion procedures, in particular the dilation and evacuation method, as both the district court and the court of appeals found.

And they found that based not simply on this text of the statute, but the text of the statute interpreted in light of the testimony of the witnesses, both the witnesses for Dr. Carhart and the State’s own witnesses who acknowledged that this statute could be broad enough to prohibit–

William H. Rehnquist:

Do we ordinarily go into the testimony of witnesses?

These were witnesses at a trial?

Simon Heller:

–That’s correct.

William H. Rehnquist:

And what… what authority do they have to speak to the construction of a statute?

Simon Heller:

No, I’m not talking about their authority to speak to the construction of the statute, but describing how abortion procedures actually occur and how they are performed and then comparing that to the language of the statute to see if the steps that occur in abortion–

William H. Rehnquist:

These witnesses compared it to the language of the statute?

Simon Heller:

–No.

The… the court did.

The court relied on the descriptions of abortion procedures by the witnesses.

Antonin Scalia:

Well, I… I must say I don’t understand… I don’t understand that conclusion.

The statute prohibits a procedure in which the person performing the abortion partially delivers vaginally a living, unborn child before killing the unborn child and completing the delivery.

Now, how does that occur in D&E?

As I understand what happens in D&E sometimes is that they… is that they… is your argument that in breaking off a leg and dismembering the fetus inside the womb, when you… when you pull the leg out of the womb, that amounts to delivering, partially delivering a living, unborn child?

Pulling out a… a torn-off leg is… is delivering a living, unborn child?

Simon Heller:

The factual findings of the district court are quite clear that the way the D&E typically occurs is that the physician partially delivers the intact, living fetus into the vagina while it… before fetal demise has occurred, so that there is a living, unborn child partially in the uterus and partially outside the uterus.

Antonin Scalia:

But in order to… for the purpose of killing it, partially delivers… the term partially delivers a living… the unborn child means deliberately and intentionally delivering into the vagina a living, unborn child.

Now, in… in a D&E, does… is that what the… is that what the physician tries to do, tries to intentionally deliver into the vagina a living, unborn child for the purpose of… of then killing it?

Simon Heller:

Yes.

Antonin Scalia:

Yes?

Simon Heller:

In every pre-viability–

Antonin Scalia:

That’s not my understanding of the D&E at all.

My understanding is that… that you… you try to dismember it if possible before the delivery.

Simon Heller:

–That’s not what the district court found.

All the expert testimony shows that to… if the physician were to attempt to induce fetal demise while the fetus is still in the uterus, that would impose increased health risks on the woman.

And that’s really what this case is about.

It’s about shifting the location of the abortion procedure into the uterus at the expense of women’s health.

Stephen G. Breyer:

You mean that some of the time D&E could be that, or all the time?

My impression in reading it was that some significant part of the time this could… this statutory wording would be satisfied with the D&E.

Simon Heller:

That’s right.

In fact, in the majority of the cases–

Stephen G. Breyer:

The majority?

Simon Heller:

–That’s right.

That… that the way a D&E is performed matches the statutory elements.

In fact, the Attorney General of Nebraska told the district court that anytime a living fetus is brought part way into the vagina, before fetal demise has occurred, and is then killed by some step, that that constitutes a–

Antonin Scalia:

No, but it has to be more than just bringing it.

It has to be the object of the physician to do it that way.

And I do not understand it to be the case that this is what you set out to do when you do a D&E.

Simon Heller:

–Actually Dr. Carhart, in each second trimester abortion by D&E that he performs, sets out to bring as much of the fetus out of the uterus at once as possible because it reduces risks to… to the women.

It reduces the risks of uterine perforation and infection.

Anthony M. Kennedy:

Well–

Simon Heller:

So, his intention is always to do that, if possible.

Anthony M. Kennedy:

–As you describe these two procedures, which in your view seem to come close together, the American Medical Association and the Association of American Physicians and Surgeons are just confused on this point?

Simon Heller:

Well, the American Medical Association described the D&X technique as a form of D&E.

It is in the record in their report on abortion that’s in the record.

They describe the D&X technique as a form of D&E, and that’s because it basically involves the same steps as a D&E.

It involves the same procedure of delivering the fetus vaginally.

And pre-viability, that inevitably results in fetal demise.

Antonin Scalia:

Where… where is that?

Will you give us the citation in the record?

Antonin Scalia:

I did not understand that to be the case.

Simon Heller:

Certainly.

The citation occurs in exhibit 7, which is on pages 482 through 500 of the joint appendix.

In particular, on page 492 of the joint appendix, the AMA report calls the D&X method a form of D&E and, in fact, goes on to state… the AMA states further that the D&X technique may be preferred by some physicians precisely because it reduces risks to the woman.

That’s the opinion of the American Medical Association, consistent with the opinion of the specialty group, the American College of Obstetricians and Gynecologists.

Antonin Scalia:

Well, they… they describe it as a form of DE… D&E not in that, like D&E, it involves partial birth of the child.

That isn’t the respect in which they say it’s a form of D&E.

Simon Heller:

Well, the factual findings of the district court established that in all D&E’s the fetus is brought through the vagina and out of the woman’s body.

That’s how the abortion–

Antonin Scalia:

Ultimately, yes, but not… not always intact and not always alive.

Simon Heller:

–Typically intact and alive.

Those are the findings in the district court, and that’s what Dr. Carhart does in most of the D&E abortions he performs, including those in which he’s able to perform the D&X technique.

So, that’s one reason that we believe the statute encompasses the D&E method.

Antonin Scalia:

Why… why would you be able to do a D&E and… as I understand it, the… the D&X is only possible 90 to 95 percent of the time that he attempts it.

Right?

Simon Heller:

Well, it’s possible about… he is able to do it about 10 percent of the time.

Antonin Scalia:

Yes.

He’s… I’m sorry.

Just the opposite.

It’s not possible to do it 90 to 95.

Simon Heller:

Right.

Antonin Scalia:

What makes it impossible?

I thought what made it impossible is the inability to take out the… the fetus from the vagina intact and still alive.

Simon Heller:

Well–

Antonin Scalia:

And if… if you can do it and if that… if that’s the same thing you do for D&E, then I don’t understand any difference at all between the two procedures.

Simon Heller:

–There are a variety of factors that determine how exactly a physician, whether it’s Dr. Carhart of any other physician, performs the D&E when you… if you were to measure what parts are delivered and so forth.

Antonin Scalia:

I mean, just… just tell me what it means to say that… that 90 percent of the time he can’t do a D&X, but he can do a D&E?

What does that mean?

Simon Heller:

For example, insufficient cervical dilation may exist so that… that the D&X is not possible because there’s not sufficient cervical dilation to perform it.

Antonin Scalia:

Which would mean he cannot get out a substantial portion of the living fetus.

Simon Heller:

Well, he–

Antonin Scalia:

I can understand that, but if it means something other than that, then I… it doesn’t mean anything to me.

He can say that he can do a D&X only 10 percent of the time.

Simon Heller:

–He nevertheless is able to, in almost all D&E’s, bring a substantial portion of the living fetus into the vagina before any step is taken that causes fetal demise.

And it’s very clear from the legislative history here that substantial portion was intended to be very broad by the legislature.

The chief sponsor wanted to accord legal protection to the fetus anytime more than a little bit of the fetus was brought into the vagina.

Antonin Scalia:

But the medical testimony certainly acknowledges a general understanding of a difference between D&X and D&E.

Isn’t that right?

Simon Heller:

The medical testimony shows that they are… that the D&X is a form of D&E.

It has certain specific elements, the same way as… as any particular type of surgery might–

Antonin Scalia:

Let me put the question differently.

The medical testimony certainly establishes that there is a distinctive form of procedure known as D&X.

Correct?

Simon Heller:

–There’s a distinctive variation of the D&E that’s called D&X.

Antonin Scalia:

Well, call it a variation, whatever.

It’s a distinctive procedure.

People talk about D&X.

We’ve been talking about it today–

Simon Heller:

That’s right.

Antonin Scalia:

–as though it is something distinctive.

It is.

Simon Heller:

Yes, it is.

Antonin Scalia:

So, the only question is whether this statute covers only that distinctive procedure or something beyond that.

Simon Heller:

That’s one of the questions–

Antonin Scalia:

Can we agree that that distinctive procedure is also generally called partial-birth abortion–

Simon Heller:

–Well–

Antonin Scalia:

–and that that term is not normally applied to D&E?

Simon Heller:

–No.

There is no… first, again the district court found that there was no medical definition of partial-birth abortion.

Antonin Scalia:

I’m not asking whether there’s a medical definition.

Antonin Scalia:

Is… is the term partial-birth abortion not normally applied to what we’ve been discussing as D&X?

Simon Heller:

No, it’s not normally applied.

Antonin Scalia:

You don’t think so.

Simon Heller:

No.

Antonin Scalia:

If I find to the contrary, would… would you lose?

Simon Heller:

No–

Antonin Scalia:

Because the statute does begin partial-birth abortion means an abortion procedure in which, and then goes on, blah, blah, blah.

Simon Heller:

–No, of course, because the title of the statute doesn’t control its meaning in… in the case of the definition–

Antonin Scalia:

It isn’t the title.

It’s part of the text.

Simon Heller:

–or in case of the legislative history.

Ruth Bader Ginsburg:

Mr. Heller, what isn’t part of this statute… all of this dispute would be out of the case if the legislature had simply said, we ban D&X and not D&E.

And to me it’s… it’s… that’s just glaring here that they could have reduced all question of ambiguity if they had simply said we ban a term that the doctors call D&X and we don’t ban D&E.

Is there any explanation why they didn’t simply say if they meant to cut out D&X, D&X is banned?

Simon Heller:

Well, there is.

First, they… they rejected an amendment that would have done just that.

Secondly, throughout the legislative history, it’s apparent that what they wanted to do was prohibit the D&X technique, but also to prohibit many other forms of abortion in which the living fetus was brought into the vagina before demise was caused.

That was their intention.

Indeed, that’s the purpose that Mr. Stenberg acknowledged today, that the purpose of the statute is to accord legal protection to the fetus once it’s emerged from the womb.

But even if this statute were limited to the D&X technique by some replacement of the existing definition with, say, the ACOG definition of the D&X technique, it’s nevertheless unconstitutional under this Court’s precedents.

First, under both Casey and Roe, the State must show that any regulation of abortions serves one of the two recognized interests, maternal health or potential life.

There’s no evidence before this Court–

William H. Rehnquist:

Your… your opponent argues the language in Casey suggests that those are not the only two.

You disagree with that, I take it.

Simon Heller:

–Well, there is language in Casey that suggests that other valid State interests could justify regulation of abortion.

That’s absolutely correct.

What I’m suggesting is that the two recognized interests are not served.

I’ll turn briefly to the… the new interests that are proposed.

There’s a sort of a laundry list of about seven or eight new interests that the State suggests could justify a prohibition on the D&X technique.

We believe none of those is sufficient to override the woman’s health.

Simon Heller:

For example, beginning with Roe and on through Casey, this Court has consistently held that the woman’s interest in her health and in her bodily integrity overrides the State interests in the fetus even after viability.

So, it follows from that some… the subsidiary interests suggested by Nebraska showing concern for potential life, showing respect for potential life… they certainly can’t overcome the woman’s health interests and the woman’s interest in her own bodily integrity.

Antonin Scalia:

Certainly it depends upon how significant the health interest is.

If… if there is an insignificant difference between… between using D&X and using D&E, which… which some of the medical testimony seems to indicate, you’re saying that there’s no interest whatever in… in the State in… in preventing the coarsening of manners from… from having the doctor and those in attendance and those who know what goes on witnessing the… the destruction of a… of a live human creature outside the womb?

There’s no State interest in that at all?

Simon Heller:

Well, first, the district court found that a prohibition on the D&X technique would impose appreciable risks on women, and that follows from the very common sense findings of the district court that the D&X technique reduces instrumentation in the uterus and reduces, therefore, the risk of uterine perforation and infection.

But even if the risks were less than appreciable, anytime a State prohibits a safe abortion technique, it is prohibiting a technique that will be the safest for some women.

And in this case, we have coupled with that the very strong interests the woman has in literally declining to have additional intrusions into her body of surgical instruments.

This is the sort of interest that this Court in Glucksberg recognized as having special protection under the Fourteenth Amendment.

So, we have a… a conjunction of strong rights here–

Antonin Scalia:

You can’t destroy the fetus after it’s born if it’s viable.

Right?

We… we do make the… the distinction at that point.

Simon Heller:

–That’s correct, and that’s a distinction that this Court made in Roe for the very good reason that once the fetus is outside the woman’s body, her right to control her own body is no longer at issue.

So, here… but here what we’re talking about is her right to have an abortion by the safest possible means.

And there’s… there’s nothing in this Court’s precedents that suggests that that right can be overridden by any sort of fetal interest.

Let me just add that many of the other interests suggested by the State have no support in the record.

And it would… we believe it’s appropriate that if the State is going to ask this Court to recognize new valid interests that can override constitutional rights, that the State provide some evidence at least that one of those interests is actually promoted by the statute.

Let me take one example, if I may, the interest in the integrity of the medical profession.

Quite to the contrary, all the evidence suggests that the integrity of the medical profession is promoted when physicians are able to treat their patients in the most appropriate and safest possible manner.

So–

Anthony M. Kennedy:

As… as determined by the individual physician.

Simon Heller:

–As determined by the individual physician in light of medical standards and the standards of the medical community.

Anthony M. Kennedy:

Well, there are certain objective standards that the profession as a whole can adopt and… and recommend to the courts.

Is that not true?

Simon Heller:

That is true, and in… in this instance, both the specialty group of American College of Obstetricians and Gynecologists and the AMA have recognized the D&X technique is the most appropriate procedure in some circumstances.

So, with the weight of that professional support behind it, we believe it’s… it undermines the integrity of the medical profession to take away the most appropriate procedure in a particular case.

In fact, most of the evolution in safety of abortion since Roe has been due to the protection that’s been accorded to the physician’s judgment about how to carry out the abortion prior to viability.

Antonin Scalia:

Roe… Roe… neither Roe nor Casey are written in the Constitution.

They may not have mentioned all of the… all of the appropriate interests that may be taken into account.

Antonin Scalia:

Why is it not an appropriate interest that the State is worried about rendering society callous to infanticide?

There were very many highly civilized societies, including the Ancient Greeks, who permitted infanticide, who said that the right of parents included the right not to be burdened with a child they didn’t want, especially a deformed child.

And therefore, in order to prevent other societies descending into that degree of callousness, the… the numerous States that have enacted these laws… I don’t think it’s so much a concern with… with medical matters.

I think it’s a concern with the horror of seeing, you know, a… a live human creature outside the womb dismembered.

Simon Heller:

Well, again, let me start by saying that–

Antonin Scalia:

Why can’t that be a valid societal interest–

Simon Heller:

–There’s certainly–

Antonin Scalia:

–whether it’s expressed in Roe and Casey or not?

Simon Heller:

–There’s certainly a valid State interest in preventing or prohibiting infanticide.

And of course, Nebraska, like virtually every other State, already does so through its general homicide statutes, so that Nebraska protects the fetus, even the pre-viable fetus, if it has an independent existence from the woman.

But to say that an abortion procedure that is safest for the woman, a pre-viability abortion procedure, is so horrific and so like infanticide, any of the… any of the abortion procedures… that could be said about any abortion procedure because every abortion procedure pre-viability involves fetal demise.

They all do.

This is an interest which, if recognized and if it could override the woman’s right to… to health and bodily integrity, would authorize States to prohibit any abortion method and prohibit, indeed, all abortions.

So that it’s irreconcilable ultimately with the right recognized in Roe and Casey.

I want to turn also to… to a second reason that the D&X… prohibition on the D&X technique is invalid if, indeed, the statute could be so limited.

And that is the recognition in Casey that a statute which has the purpose of imposing an undue burden on the woman’s right to obtain a pre-viability abortion is also invalid.

Here the only purpose suggested, indeed, the primary purpose identified by the Attorney General of Nebraska, is precisely to elevate the status of the fetus based on its location within the woman’s body, not in its location once it’s born, not on viability.

And this is an interest.

If this elevation were permitted, it would authorize States to prohibit all abortions.

That’s an impermissible purpose under Casey.

Coupled with this impermissible effect of effectively depriving women in Nebraska of the safest and most medically appropriate method of second trimester abortion, the statute simply can’t survive under this Court’s decisions.

Indeed, when you… when you consider the State interests there… some of the other State interests that are proposed, not even they are served by the statute.

The interest in, for example, cruelty to the fetus.

There’s no evidence that that interest is served here.

In fact, the statute doesn’t say anything about cruelty to the fetus at all.

So, we’re looking at a statute that doesn’t serve either of the recognized State interests.

It doesn’t… there’s no evidence that it serves any of the proposed new State interests by permissible means, and at the same time, it imposes some health risks on women.

That sort of statute… the balancing in that sort of statute is decisively against the constitutionality of the statute under any interpretation, whether broad or narrow.

For example, again, if… if the State… if the State couldn’t really prohibit a more dangerous procedure for abortions such as hysterotomy because those methods are most medically appropriate for some women.

And to take one method like the D&X technique out of the hands of physicians performing pre-viability abortions inevitably makes abortion more dangerous for women.

Simon Heller:

So, when this Court, for example, in Danforth struck down the… Missouri’s prohibition on saline abortions, it took a step that enabled physicians to continue to develop newer, safer methods of abortion.

That really relates to one of the points made by Mr. Stenberg in his opening, which is that, well, why aren’t all these other physicians around the country doing this if it’s so safe?

The reason is that it’s new.

Any new surgical technique, any new medical technique is at the beginning going to be used only in a scattered way.

Antonin Scalia:

So, we can look forward to this being more widespread in the years to come.

Is that right?

Simon Heller:

We don’t know and that’s because we don’t know whether in the future even new methods will replace this method as the safest for women.

But this Court’s jurisprudence has always pushed in the direction of allowing physicians to exercise judgment so that they could determine the safest possible means of performing abortion not State legislators.

It should be the doctor deciding how surgery is performed, not the Nebraska Senators.

So, with the improper purpose and with the lack of service of any State interest, we believe the statute is unconstitutional.

But I want to turn to yet an additional problem with the statute which is… which is its lack of any health exception.

This is a problem which even the Attorney General doesn’t suggest, well, go ahead, we think it should be interpreted to have a health exception.

They don’t want it to have a health exception.

They resist that interpretation which could ameliorate one of the constitutional problems with the statute.

William H. Rehnquist:

Well, but hasn’t there been some criticism of the health exception as it has been used in some circumstances as a way of simply avoiding the prohibition entirely by a doctor who says there’s always a health exception?

Simon Heller:

Well, there… there has certainly been criticism of that, of course.

But considering, for example, Nebraska’s post-viability abortion prohibition, which has exceptions for the life and health of the woman without restriction, there’s… there’s no evidence, for example, that that statute has ever been misapplied by a physician in Nebraska.

Nor is there a suggestion that similar statutes have ever been misapplied by physicians in other States.

So that this sort of health exception which–

William H. Rehnquist:

Well, then whence the criticism?

Is it just totally based on no evidence whatever?

Simon Heller:

–Well, I think there’s criticism, for example, from some who oppose abortion entirely.

William H. Rehnquist:

But how about… are you saying that there’s simply no basis for saying that a health exception could be used by doctors who wish to avoid the general prohibition to get out of it in more cases than they should?

Simon Heller:

I think there is no basis for that… that claim.

A physician who used a different abortion technique for a woman who was sick or dying and not because it was the most appropriate technique would already be subject to malpractice penalties and penalties for unprofessional conduct.

So, if this was going on, we would see evidence of it.

But in fact, what we see is just increasing safety of abortion for women in the United States.

The lack of a health exception is also one that could not be, in our view, cured by any sort of certification process, which has been suggested, because it would really require just rewriting the statute, and… and we believe the Nebraska Supreme Court would not do that, nor would the Nebraska Attorney General want them to.

Antonin Scalia:

Do you think when you have a… a fully viable fetus that no State restrictions upon… upon the woman’s right to abort could involve any risk whatever to the woman’s health?

There has to be a health exception?

Simon Heller:

Well, in… in Thornburgh, this Court required that a choice of methods statute not impose risks on the woman’s health–

Antonin Scalia:

Any… any risk whatever.

Simon Heller:

–Well–

Antonin Scalia:

If there’s the slightest risk whatever, the… the State must allow the woman to dispose of a fully viable fetus.

Simon Heller:

–I don’t think Thornburgh says that.

I think Thornburgh says that the State–

Do you think that that’s the rule?

Simon Heller:

–I think the rule is under Thornburgh that the State cannot impose significant risks on women’s health after viability.

Before viability where the State interest in the fetus is much less than after–

Antonin Scalia:

I understand that, but it… it’s possible that there is a similar rule applicable here, that the State may not impose significant health risks upon the woman.

But that doesn’t mean that there can’t be, you know, a minimal, virtually nonexistent health risk, which is what your argument assumes, that you cannot have any… any risk whatever.

Simon Heller:

–First, again the district court findings say that there is an appreciable health risk from prohibiting the D&X technique.

But secondly, again part of this calculus is looking at the State interests, and the State… there are no State interests served by this statute, unlike the post-viability statute which serves a very compelling interest.

Antonin Scalia:

What if another district court makes a different finding?

I mean, do… do we accept the district court’s findings on these general medical questions as binding?

Is it… is it binding just in this case?

Or if we have another abortion case from another… from another circuit where the district judge makes a different conclusion, the… the nonmedical district judge, do… do we then accept that other conclusion too?

Simon Heller:

We believe that the conclusion here must be drawn from much of the evidence that could not be disputed in any case around the country, which is that the AMA and the… and ACOG both recognize that this, the D&X procedure–

Stephen G. Breyer:

Is it… is it the case that the risk… I thought the risks being insubstantial was of a kind where we say one in a million.

But once we’ve identified the woman, for that woman it’s no longer insubstantial, is it?

Simon Heller:

–That’s absolutely correct.

The risks–

Stephen G. Breyer:

And… and therefore a health exception or a life exception helps that single woman.

Simon Heller:

–Absolutely.

And so, it helps the 10 to 20 women, for example, for whom Dr. Carhart is able to perform the D&X technique.

William H. Rehnquist:

Thank you, Mr. Heller.

General Stenberg, you have 3 minutes left.

Donald B. Stenberg:

Thank you, Your Honor.

First of all, on May 20th, 1997, the Nebraska legislature adopted an amendment that was proposed to Congress by the American Medical Association for the purpose of making clear that the statute did not prohibit the D&E procedure.

And the best discussion of that can be found on page 418 of the joint appendix.

Ruth Bader Ginsburg:

Why didn’t they just say that, General Stenberg?

Why didn’t they just… I mean, that was proposed, Mr. Heller told us… say that what’s banned is D&X, what’s not banned is D&E?

That was such a simple way of clarifying it.

Why didn’t they do that?

Donald B. Stenberg:

Because the Nebraska legislature was relying on the American Medical Association and the Congress of the United States and patterned their legislation on that.

And they felt that if this gained the support of the American Medical Association and Congress, which it did for the 1997 law, that they wanted to pattern that and rely on the American Medical Association and their lawyers and congressional lawyers.

Ruth Bader Ginsburg:

Did the medical… American Medical Association recommend this text or did they simply say, in our judgment, it’s okay to ban D&X?

Donald B. Stenberg:

No.

They did… they did both.

They… they… what they said is if the Congress would adopt these amendments, which were the same as… as what Nebraska adopted, that they would then support the ban on D&X abortion.

Ruth Bader Ginsburg:

Well, is there any question that they would have supported a ban that simply said what you tell me the legislature meant, that is, we ban D&X and nothing else?

Donald B. Stenberg:

There’s… of course, there’s more than one way to achieve the same result, Your Honor.

The Nebraska legislature chose to–

Ruth Bader Ginsburg:

You would just be saying that the AMA liked this other text.

Is there anything in the world to indicate that they wouldn’t have preferred the clarity that we ban D&X would have brought?

Donald B. Stenberg:

–Well, of course, viewed from, I think, the standpoint of a State Senator in… in the State of Nebraska, they’re not really in a position to go to the AMA and say, well, is there some other language that might be just as good?

They just took what was given to them.

Ruth Bader Ginsburg:

But there was a medical term.

Is there any reasonable doubt that a doctor would say… a medical term is what doctors use.

Are you suggesting that any legislator in… in the State was genuinely in doubt, whether if he had used D&X, the medical association would have disapproved?

Donald B. Stenberg:

Well, there was some doubt because in 1997 there were several terms used to describe this procedure, the D&X, the intact D&E, the intact D&X, and the Haskell D&X.

So, there were several different, quote, medical terms that were being applied in 1997, and the legislature chose to attack it by… by describing the procedure rather than using a medical term, which I believe the legislature is free to do.

On this question of what is a D&E, Dr. Carhart addressed that in his complaint on paragraph 30 in which he pled, the intact removal of the fetus–

William H. Rehnquist:

Thank you, General Stenberg.

The case is submitted.