Brief Fact Summary. A doctor who performs abortions attempted to have a Nebraska statute preventing partial birth abortions deemed unconstitutional.
Synopsis of Rule of Law. All statutes restricting abortion must allow an exception for the life and health of the mother.
Issue. Does a Nebraska Statute prohibiting partial birth abortions violate the Constitution?
Held. The Statute violates the Constitution both because it lacks any exception for the preservation of the health of the mother, and because it unduly burdens the right to choose abortion by forbidding partial birth abortions.
Partial birth abortions (D&E and D&X procedures) are often safer in second trimester abortions, and are specifically safer when certain conditions are present.
The governing standard requires an abortion exception for the life or health of the mother. The Nebraska statute does not provide for this exception either previability or postviability, allowing an exception only when “necessary to save the life of the mother”.
The statute does not further an interest in the life of the fetus because it regulates only a method of performing abortion.
Dissent. Demanding a health exception will allow live-birth abortions. The decision is policy couched in law, and would be best left to the legislatures.
Nebraska is entitled to differentiate between abortion procedures based on morals. Previous caselaw is based on the States having an important role in determining their interests in the abortion debate.
Concurrence. The statute does not save any fetus from destruction, and is only and attempt to chip away at abortion rights.
Discussion. The majority finds that although the details are gruesome, a calculated examination of the statute demonstrates that its protection for the mother is insufficient and its potential to persecute physicians is great.