Sternberg v. Carhart

Stenberg v. Carhart

Plaintiff, Dr. Leroy Carhart, an abortion provider, brought suit in Federal District Court against defendant, Don Stenberg, Attorney General of the State of Nebraska, challenging the constitutionality of Neb. Rev. Stat. Ann. 28-328(1) (Supp. 1999), which prohibited partial birth abortion, and seeking an injunction forbidding the enforcement of that statute. Carhart prevailed in the District Court, which held the statute unconstitutional. The Eighth Circuit affirmed on appeal and Stenberg sought review in the Supreme Court.

Roe v. Wade, 410 U.S. 113 (1973), established that a woman's right to privacy extended to reproductive health and guaranteed that women had a right to abortion. This right to an abortion was not an unlimited right, but was the result of weighing the rights of the mother against the rights of the unborn child. Therefore, the Roe court determined that a woman had a virtually unlimited right to an abortion in the first and second trimesters, prior to fetal viability, but that a state could place restrictions on a woman's right to an abortion after a fetus was viable, in the third trimester. However, the Roe court acknowledged that medical advances might change the scope of the decision, especially in regards to Roe's trimester divisions.

The Court had an opportunity to revisit Roe in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992). While the Court continued to protect a woman's right to seek an abortion, it did not hold unconstitutional laws that placed surmountable obstacles on a woman's right to have an abortion. In fact, the Casey court determined that women could be required to give informed consent prior to obtaining an abortion, and that minors could be required to have parental consent before obtaining an abortion as long as the law had a judicial bypass procedure. In addition, a state could require abortion providers to give a woman specific information prior to performing an abortion. However, the Casey Court determined that a married woman could not be required to obtain her husband's consent prior to seeking an abortion.

While both Roe and Casey discussed abortion, they were concerned with a woman's absolute right to an abortion and the nature of the legal obstacles that a state could place on a woman's right to an abortion. Carhart's challenge of Neb. Rev. Stat. Ann. 28-328(1) (Supp. 1999) differed from these previous challenges because the law in question did not facially restrict a woman's right to an abortion as established under Roe. Instead, the statute was aimed at restricting the means that an abortion provider could use to establish termination of a fetus.

Neb. Rev. Stat. Ann. 28-328(1) (Supp. 1999) provided that, "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 was an attempt to limit those abortions that required delivery of any substantial part of a fetus into the vagina before killing that fetus. The majority (90%) of all abortions are performed during the first trimester, and most of those abortions are performed via vacuum aspiration, a procedure that does not require delivery of any part of the fetus into the vagina prior to termination of that fetus. In addition, the vast majority (90-95%) of second-trimester abortions are performed without any type of vaginal delivery of the fetus. However, once a pregnancy progresses past approximately 15 weeks, it oftentimes becomes preferable for a practitioner to dismember the fetus or collapse its skull in order to perform an abortion. Partial-birth abortions are those abortions where this dismemberment occurs "as the doctor pulls a portion of the fetus through the cervix into the birth canal."

Carhart's challenge of Nebraska's partial-birth abortion statute was based upon the concept that restricting a woman from seeking a method of abortion that medical practitioners considered safer and less painful than alternative methods constituted an undue burden on a woman's right to choose. The Court did not disturb the District Court's finding of fact, which was that Dr. Carhart's partial-birth procedure was superior to and safer than other available procedures. Therefore, the Court determined that the statute violated the Federal constitution because it did not make any exceptions for maternal health and because it imposed an undue burden on a woman's right to choose a partial-birth abortion, which unduly burdened a woman's right to choose abortion.


Balancing a woman's right to reproductive autonomy against a fetus right to potential life has been a very difficult job for the Court, which has relied upon artificial and changing constructs. One of the complicating factors in Stenberg is that the statute at issue was not aimed at prohibiting post-viability partial-birth abortions, but all partial-birth abortions. Therefore, the framework established in Roe, which acknowledged that the state had an interest in preserving human life post-viability, could not be the determining factor for the decision. Instead, the question that the Stenberg court had to determine was whether a woman's right to an abortion meant that a woman had the right to seek the abortion procedure of her choosing. Although the Court ultimately answered "yes," to that question, understanding that answer actually requires a careful consideration of the points raised by the dissenters.

Justice Kennedy's dissent raises a significant issue. While Roe purports to protect a state's interest in regulating abortion, the Stenberg decision seems to challenge that right. After all, the statute was not facially aimed at reducing the number of abortions in any manner. It did not state that women could not obtain an abortion upon demand, or suggest that women should face any barriers upon abortion like the ones approved by the Court in Casey. In fact, Kennedy is technically correct when he states that "the law denies no woman the right to choose an abortion and places no undue burden upon the right."

However, while technically correct, the Court believes that Kennedy's assertion ignores medical reality. The District Court found that Carhart's partial-birth procedure was safer for women than the alternative procedures available. By denying a woman access to the safest possible medical procedure, the statute would place an undue burden upon a woman's right to choose an abortion. Furthermore, for some women the more traditional methods of second trimester abortion, like induced labor, would present a direct threat to maternal health, which might result in an absolute denial of a woman's right to choose an abortion.

Dissenter Scalia feels that the Court has incorrectly applied both Roe and Casey. He points out that a maternal health exception would neuter the intent of Nebraska's state legislature, because those exceptions rely on the expertise of the doctors who are providing the abortions. In addition, Scalia contends that there is no evidence to suggest that maternal health would ever require the performance of a partial-birth abortion vs. A different method of abortion. Therefore, he concludes that the Stenberg decision is an unwarranted expansion upon Roe, which follows naturally from the decision in Casey, because Casey prohibited a state not only from restricting abortions, but also from legislating in a manner that made it unduly burdensome for a woman to obtain an abortion. In fact, both he and Justice Thomas contend that Casey's language made it likely that any restriction on a woman's right to obtain an abortion could be construed as an undue burden, which effectively deprives states of their right to legislate in the abortion arena prior to fetal viability. They suggest that these decisions have broadened the impact of the Roe decision.

What the dissent ignores is that Roe's establishment of a constitutionally-protected right to abortion prior to fetal viability, conclusively answered theā€¦