Stenberg v. Carhart

Brief Fact Summary. The Respondent, Carhart (Respondent), asks for an injunction forbidding the enforcement of Nebraska’s statute banning so-called “partial birth abortions.”

Synopsis of Rule of Law. The State cannot ban abortion procedures categorically without exceptions for the mother’s health.

Facts. The Respondent is a Nebraska physician who performs abortions in a clinical setting. During the second trimester of pregnancy, the safest methods of abortion involve removal of at least some fetal tissue during the procedure and in some cases disarticulation, dismemberment, or collapse of fetal tissue to facilitate evacuation from the uterus. Nebraska criminalized the performance of any “partial birth” procedure in an abortion.

Issue. Does the Nebraska statute unduly burden a woman’s reproductive rights?

Held. Yes. Appeals Court ruling affirmed.
Justice Steven Breyer (J. Breyer) notes that a State may promote, but not endanger a woman’s health when it regulates the methods of abortion. There is no exception in the Nebraska statute for the mother’s health where partial birth procedures are the safest method of abortion.
Nebraska has the burden of proving that a partial birth procedure will never be the safest alternative for a woman rightfully seeking an abortion. It has not made such a showing.

Dissent.
Justice Antonin Scalia (J. Scalia) reiterates his belief that the Supreme Court of the United States’ (Supreme Court) abortion jurisprudence is judicial legislation.
Justice Anthony Kennedy (J. Kennedy) suggests that the courts are ill-prepared to distinguish between various techniques for abortions.
Justice Clarence Thomas (J. Thomas) believes the entire line of jurisprudence since Roe v. Wade, 410 U.S. 113 (1973), is misguided judicial activism.
Concurrence.
Justice Sandra Day O’Connor (J. O’Connor) believes the statute is unconstitutional for two reasons: (1) there is no maternal health exception, and (2) its ban of the most common second trimester abortion technique imposes an undue burden on a woman’s right to choose.
Justice Ruth Bader Ginsburg (J. Ginsburg) quotes Seventh Circuit Court of Appeals Chief Judge Posner that the real target of the statutes in question is not a procedure, but rather the rights afforded by Roe, et. al.

Discussion. The holding in Carhart is not an outlier. The Supreme Court is clear that there must always be a maternal health exception to any regulation of a woman’s right to have an abortion. Again, it is most likely the changing composition of the Supreme Court motivated pro life advocates to believe Roe might be overturned.