Stenberg v. Carhart

530 U.S. 914

Case Year: 2000

Case Ruling: 5-4, Affirmed

Opinion Justice: Breyer

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Ginsburg, O'Connor, Souter, Stevens


1st Concurring Opinion

Author: Ginsburg


1st Dissenting Opinion

Author: Kennedy


2nd Concurring Opinion

Author: O'Connor


2nd Dissenting Opinion

Author: Scalia


3rd Concurring Opinion

Author: Stevens


3rd Dissenting Opinion

Author: Thomas


Other Concurring Opinions:


In Stenberg v. Carhart (2000), the justices considered a Nebraska law banning "partial birth abortion"--a phrase often used to describe one of several different kinds of (controversial) procedures used to terminate pregnancies after four months. Specifically, the law stated, "No partial birth abortion shall be performed in this state, unless such procedure is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself." The statute defined "partial birth abortion" as: "an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery." It further defined "partially delivers vaginally a living unborn child before killing the unborn child" to mean "deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child." Violators of the Nebraska law could receive a prison term of up to twenty years and a fine of up to $25,000. Moreover, the state would automatically revoke the licenses of doctors found guilty of performing such abortions. At the time, approximately thirty other states had similar laws.



We again consider the right to an abortion. We understand the controversial nature of the problem. Millions of Americans believe that life begins at conception and consequently that an abortion is akin to 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 the 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 and then redetermined that the Constitution offers basic protection to the woman's right to choose. Roe v. Wade (1973); Planned Parenthood of Southeastern Pa. v. Casey 3 (1992). We shall not revisit those legal principles. Rather, we apply them to the circumstances of this case. Three established principles determine the issue before us. We shall set them forth in the language of the joint opinion in Casey. First, before "viability ... the woman has a right to choose to terminate her pregnancy."... Second, "a law designed to further the State's interest in fetal life which imposes an undue burden on the woman's decision before fetal viability" is unconstitutional.... An "undue burden is ... shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."...

Third, "'subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.'"...

The question before us is whether Nebraska's statute, making criminal the performance of a "partial birth abortion," violates the Federal Constitution, as interpreted in Planned Parenthood of Southeastern Pa. v. Casey (1992), and Roe v. Wade (1973). We conclude that it does for at least two independent reasons. First, the law lacks any exception "`for the preservation of the ... health of the mother.'"... Second, it "imposes an undue burden on a woman's ability" to choose a D&E abortion, thereby unduly burdening the right to choose abortion itself. We shall discuss each of these reasons in turn....

Nebraska [argues] that the law does not require a health exception unless there is a need for such an exception. And here there is no such need, it says. It argues that "safe alternatives remain available" and "a ban on partial-birth abortion/D&X would create no risk to the health of women."... The problem for Nebraska is that the parties strongly contested this factual question in the trial court below; and the findings and evidence support Dr. Carhart. The State fails to demonstrate that banning D&X without a health exception may not create significant health risks for women, because the record shows that significant medical authority supports the proposition that in some circumstances, D&X would be the safest procedure.... The upshot is a District Court finding that D&X significantly obviates health risks in certain circumstances, a highly plausible record-based explanation of why that might be so, a division of opinion among some medical experts over whether D&X is generally safer, and an absence of controlled medical studies that would help answer these medical questions. Given these medically related evidentiary circumstances, we believe the law requires a health exception....

... Nebraska has not convinced us that a health exception is "never necessary to preserve the health of women."... Rather, a statute that altogether forbids D&X creates a significant health risk. The statute consequently must contain a health exception. This is not to say, as JUSTICE THOMAS and JUSTICE KENNEDY claim, that a State is prohibited from proscribing an abortion procedure whenever a particular physician deems the procedure preferable. By no means must a State grant physicians "unfettered discretion" in their selection of abortion methods.... But where substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women's health, Casey requires the statute to include a health exception when the procedure is "`necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.'" Requiring such an exception in this case is no departure from Casey, but simply a straightforward application of its holding.

The Eighth Circuit found the Nebraska statute unconstitutional because, in Casey's words, it has the "effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." It thereby places an "undue burden" upon a woman's right to terminate her pregnancy before viability. Nebraska does not deny that the statute imposes an "undue burden" if it applies to the more commonly used D&E procedure as well as to D&X And we agree with the Eighth Circuit that it does so apply.

... The statute forbids "deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child."... We do not understand how one could distinguish, using this language, between D&E (where a foot or arm is drawn through the cervix) and D&X (where the body up to the head is drawn through the cervix). Evidence before the trial court makes clear that D&E will often involve a physician pulling a "substantial portion" of a still living fetus, say, an arm or leg, into the vagina prior to the death of the fetus....

Even if the statute's basic aim is to ban D&X, its language makes clear that it also covers a much broader category of procedures. The language does not track the medical differences between D&E and D&X--though it would have been a simple matter, for example, to provide an exception for the performance of D&E and other abortion procedures....

The Nebraska State Attorney General argues that the statute does differentiate between the two procedures.... We cannot accept the Attorney General's narrowing interpretation of the Nebraska statute. This Court's case law makes clear that we are not to give the Attorney General's interpretative views controlling weight. For one thing, this Court normally follows lower federal-court interpretations of state law.... In this case, the two lower courts have both rejected the Attorney General's narrowing interpretation.

For another, our precedent warns against accepting as "authoritative" an Attorney General's interpretation of state law when "the Attorney General does not bind the state courts or local law enforcement authorities."... Regardless, even were we to grant the Attorney General's views "substantial weight," we still have to reject his interpretation, for it conflicts with the statutory language....

In sum, using this law some present prosecutors and future Attorneys General may choose to pursue physicians who use D&E procedures, the most commonly used method for performing previability second trimester abortions. All those who perform abortion procedures using that method must fear prosecution, conviction, and imprisonment. The result is an undue burden upon a woman's right to make an abortion decision. We must consequently find the statute unconstitutional.

The judgment of the Court of Appeals is



I did not join the joint opinion in Planned Parenthood of Southeastern Pa. v. Casey (1992), and continue to believe that case is wrongly decided....


I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court's jurisprudence beside Korematsu and Dred Scott. The method of killing a human child--one cannot even accurately say an entirely unborn human child--proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion. And the Court must know (as most state legislatures banning this procedure have concluded) that demanding a "health exception"--which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?)--is to give live-birth abortion free rein. The notion that the Constitution of the United States, designed, among other things, "to establish Justice, insure domestic Tranquility, ... and secure the Blessings of Liberty to ourselves and our Posterity," prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd....

... Today's decision, that the Constitution of the United States prevents the prohibition of a horrible mode of abortion, will be greeted by a firestorm of criticism--as well it should. I cannot understand why those who acknowledge that ... "[t]he issue of abortion is one of the most contentious and controversial in contemporary American society," ... persist in the belief that this Court, armed with neither constitutional text nor accepted tradition, can resolve that contention and controversy rather than be consumed by it. If only for the sake of its own preservation, the Court should return this matter to the people--where the Constitution, by its silence on the subject, left it--and let them decide, State by State, whether this practice should be allowed. Casey must be overruled.


For close to two decades after Roe v. Wade (1973), the Court gave but slight weight to the interests of the separate States when their legislatures sought to address persisting concerns raised by the existence of a woman's right to elect an abortion in defined circumstances. When the Court reaffirmed the essential holding of Roe, a central premise was that the States retain a critical and legitimate role in legislating on the subject of abortion, as limited by the woman's right the Court restated and again guaranteed. Planned Parenthood of Southeastern Pa. v. Casey (1992). The political processes of the State are not to be foreclosed from enacting laws to promote the life of the unborn and to ensure respect for all human life and its potential.... The State's constitutional authority is a vital means for citizens to address these grave and serious issues, as they must if we are to progress in knowledge and understanding and in the attainment of some degree of consensus.

The Court's decision today, in my submission, repudiates this understanding by invalidating a statute advancing critical state interests, even though the law denies no woman the right to choose an abortion and places no undue burden upon the right. The legislation is well within the State's competence to enact. Having concluded Nebraska's law survives the scrutiny dictated by a proper understanding of Casey, I dissent from the judgment invalidating it....