Stenberg v. Carhart

LOCATION: Nebraska General Assembly

DOCKET NO.: 99-830
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 530 US 914 (2000)
ARGUED: Apr 25, 2000
DECIDED: Jun 28, 2000

Donald B. Stenberg - Argued the cause for the petitioners
Simon Heller - Argued the cause for the respondent

Facts of the case

A Nebraska law prohibited any "partial birth abortion" unless that procedure was necessary to save the mother's life. It defined "partial birth abortion" as a procedure in which the doctor "partially delivers vaginally a living unborn child before killing the... child," and defined the latter phrase to mean "intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the [abortionist] knows will kill the... child and does kill the... child." Violation of the law is a felony, and it provides for the automatic revocation of a convicted doctor's state license to practice medicine. Leroy Carhart, a Nebraska physician who performs abortions in a clinical setting, brought suit seeking a declaration that the statute violates the U.S. Constitution, claiming the law was unconstitutionally vague and placed an undue burden on himself and female patients seeking abortions. The District Court held the statute unconstitutional. The Court of Appeals affirmed.


Does the Nebraska statute, which makes the performance of a "partial birth abortions" a crime, violate the liberty protected by due process of the Fourteenth Amendment in the U.S. Constitution?

Media for Stenberg v. Carhart

Audio Transcription for Oral Argument - April 25, 2000 in Stenberg v. Carhart

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

William H. Rehnquist:

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

Stephen G. 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.