Law School Case Brief
Stenberg v. Carhart - 530 U.S. 914, 120 S. Ct. 2597 (2000)
Nebraska's statute making criminal the performance of a "partial birth abortion," Neb. Rev. Stat. § 28-328 (Supp. 1999), violates the Federal Constitution 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 dilation and evacuation abortion, thereby unduly burdening the right to choose abortion itself.
The Constitution offers basic protection to a woman's right to choose whether to have an abortion. Before fetal viability, a woman has a right to terminate her pregnancy under Roe v. Wade, and a state law is unconstitutional if it imposes on the woman's decision an "undue burden," i.e., if it has the purpose or effect of placing a substantial obstacle in the woman's path. Post-viability, the State, in promoting its interest in the potentiality of human life, may regulate, and even proscribe, abortion except where "necessary, in appropriate medical judgment, for the preservation of the [mother's] life or health." The Nebraska law at issue prohibits any "partial birth abortion" unless that procedure is necessary to save the mother's life. It defines "partial birth abortion" as a procedure in which the doctor "partially delivers vaginally a living unborn child before killing the . . . child," and defines the latter phrase to mean "intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the [abortionist] knows will kill the . . . child and does kill the . . . child." Violation of the law is a felony, and it provides for the automatic revocation of a convicted doctor's state license to practice medicine. Respondent Carhart, a Nebraska physician who performs abortions in a clinical setting, brought this suit seeking a declaration that the statute violates the Federal Constitution. The District Court held the statute unconstitutional, which the Court of Appeals for the Eighth Circuit affirmed. The State petitioned for certiorari review.
Was Neb. Rev. Stat. § 28-328 (Supp. 1999), which criminalized performance of "partial birth abortions," constitutional?
The Supreme Court held that the statute was unconstitutional because it lacked any exception for the preservation of the health of the mother. Where substantial medical authority supported the proposition that banning a particular abortion procedure could endanger women's health, a prohibitory statute must include a health exception when the procedure is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. The statute was also unconstitutional because it imposed an undue burden on a woman's ability to choose a more common abortion procedure, thereby unduly burdening the right to choose abortion itself. The Court rejected a proffered narrowing interpretation of the statute because it conflicted with statutory language, and held that it was not required to certify the interpretation question to state court because the statute was not fairly susceptible to a narrowing construction.
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