Brief Fact Summary. A Nebraska law provided that no partial birth abortion shall be performed in the state, unless such procedure is necessary to save the life of the mother. The constitutionality of the Nebraska law was brought into question.
Synopsis of Rule of Law. A State may not regulate abortions in such a way that disregards the risk of injury to health of a woman.
Issue. Did the Nebraska statute, banning the performance of a “partial birth abortion,” violate the United States Constitution?
The relevant case law ((Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992)) requires an exception, in the regulation of abortions, where it is necessary to preserve the life or health of the mother. But, the Nebraska law, designed for the purpose of banning the D&X, lacks any exception for the health of the mother. Medical evidence shows that in some circumstances the D&X would be a safer procedure. Thus, the statute may, under certain circumstances, improperly subject a woman to a potentially riskier method of abortion. The State fails to show that banning D&X without a health exception would not create a significant health risk for women.
Although it was the intent of the Nebraska legislature to ban only the D&E, the plain language of the statute is reasonably susceptible to the interpretation that the ban was intended to apply to both the D&X and the D&E. Thus, the statute imposes an undue burden on a woman’s right to an abortion before fetal viability.
Dissent. Justice Kennedy: The majority errs in two principle ways: (1) it fails to recognize the legitimacy of a state’s interest in forbidding medical procedures that might cause that profession to become disdainful to life; (2) it mandates that a ban on D&X must include an exception whenever an individual doctor believes it will best preserve the health of the woman.
Chief Justice Rehnquist: Justice Rehnquist believes Justice Kennedy and Justice Thomas have correctly applied the principles of Planned Parenthood v. Casey, 505 U.S. 833 (1992).
Justice Scalia: The text of the United States Constitution has nothing to say about this subject. Therefore, the Supreme Court of the United States should return this matter to the people and let them decide state by state whether this practice should be permitted.
Justice Thomas: The majority’s understanding of when a health exception is required is not mandated by our prior cases. Planned Parenthood v. Casey, 505 U.S. 833 (1992), correctly applied, would frame the question as whether prohibiting a partial birth abortion without a health exception poses a substantial obstacle to obtaining an abortion. Such an obstacle does not exist.
Concurrence. Justice Stevens: The notion that banning one of the two gruesome procedures and not the other furthers the legitimate state interest asserted (of preventing cruelty and of maintaining the integrity of the medical profession) is simply irrational.
Justice O’Connor: If Nebraska’s statute was limited to banning the D&X only and if such a ban included an exception for the life and health of the mother, we would have a quite different question before us.
Justice Ginsburg: A State places an undue burden in the path of a woman seeking an abortion if it stops a woman from choosing the procedure her doctor reasonably believes will protect the woman.
Discussion. This case raises the question of which ends are legitimate state interests under the undue burden test (whether a law designed to further the State’s interest in fetal life imposes an undue burden on the woman’s decision before fetal viability) of Casey. It is well recognized that the states can regulate abortions, to a limited extent, for the purposes of preserving the health of a woman or of discouraging abortions. But, may a state also regulate for the purpose of preventing the coarsening of the perceptions of the medical profession and society from a practice that looks like infanticide? Also, drawn into question here is whether a state may regulate abortions in such a way that creates any (even minute) health risk to a woman. The Supreme Court is obviously applying the strict scrutiny standard of review on the facts in this case.