STENBERG v. CARHART (99-830)
192 F.3d 1142, affirmed
Opinion of the Court
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in
connection with this case, at the time the opinion is issued. The syllabus constitutes
no part of the opinion of the Court but has been prepared by the Reporter of Decisions
for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
STENBERG, ATTORNEY GENERAL OF NEBRASKA, et al. v. CARHART
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 99-830. Argued
April 25, 2000-Decided
June 28, 2000
The Constitution offers basic protection to
a woman's right to choose whether to have an abortion.
Roe v. Wade, 410 U.S. 113; Planned
Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833. Before fetal viability, a woman has a right
to terminate her pregnancy, id., at 870 (joint
opinion), 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, id., at 877. Postviability, 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." E.g., id., at 879. The Nebraska law at issue prohibits any "partial birth abortion"
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. The Eighth Circuit affirmed.
criminalizing the performance of
"partial birth abortion
the Federal Constitution
, as interpreted in Casey
. Pp. 3-27
(a) Because the statute seeks to ban one abortion method, the Court discusses
abortion procedures, as described in the
evidence below and the medical literature. During a pregnancy's second trimester (12 to 24 weeks), the
most common abortion procedure is
"dilation and evacuation" (D&E), which involves dilation of the cervix, removal of at least some fetal
tissue using nonvacuum surgical
instruments, and (after the 15th week) the potential need for instrumental dismemberment of the fetus or
the collapse of fetal parts to facilitate
evacuation from the uterus. When such dismemberment is necessary, it typically occurs as the doctor pulls
a portion of the fetus through the
cervix into the birth canal. The risks of mortality and complication that accompany D&E are significantly
lower than those accompanying
induced labor procedures (the next safest mid-second-trimester procedures). A variation of D&E, known as
"intact D&E," is used after 16
weeks. It involves removing the fetus from the uterus through the cervix "intact," i.e., in one pass
rather than several passes. The intact D&E
proceeds in one of two ways, depending on whether the fetus presents head first or feet first. The feet-first
method is known as "dilation and
extraction" (D&X). D&X is ordinarily associated with the term "partial birth abortion." The District Court
concluded that clear and convincing
evidence established that Carhart's D&X procedure is superior to, and safer than, the D&E and other abortion
procedures used during the
relevant gestational period in the 10 to 20 cases a year that present to Carhart. Moreover, materials
presented at trial emphasize the potential
benefits of the D&X procedure in certain cases. Pp. 3-10.
(b) The Nebraska statute lacks the requisite exception "for the preservation of
the ... [health] of the
mother." Casey, supra, at 879 (joint
opinion). The State may promote but not endanger a woman's health when it regulates
the methods of abortion.
(i) The Court rejects Nebraska's contention that there is no need for a
health exception here because safe alternatives remain available
and a ban on partial-birth abortion/D&X would create no risk to women's health. The parties strongly
contested this factual question in the
District Court; and the findings and evidence support Dr. Carhart. Pp. 13-14.
(ii) Nebraska and its supporting amici respond with eight arguments as to
why the District Court's findings are irrelevant, wrong, or
applicable only in a tiny number of instances. Pp. 14-15.
(iii) The eight arguments are insufficient to demonstrate that
Nebraska's law needs no health exception. For one thing, certain of the
arguments are beside the point. The D&X procedure's
relative rarity (argument (1)) is not highly
relevant. The State cannot prohibit a person
from obtaining treatment simply by pointing out that most people do not need it. And the fact that
only a "handful" of doctors use the procedure
(argument (2)) may reflect the comparative rarity of late second term abortions, the procedure's recent
development, the controversy
surrounding it, or, as Nebraska suggests, the procedure's lack of utility. For another thing, the record
responds to Nebraska's (and amici's)
medically based arguments. As to argument (3), the District Court agreed that alternatives, such as D&E
and induced labor are "safe," but
found that the D&X method was safer in the circumstances used by Carhart]. As to argument (4)-that
showed that the statutory ban
would not increase a woman's risk of several rare abortion complications-the District Court simply relied
different expert testimony than the
State. Argument (5)-the assertion of amici Association of American Physicians and Surgeons et al.
elements of the D&X procedure may
create special risks-is disputed by Carhart's amici, including the American College of Obstetricians and
Gynecologists (ACOG), which claims
that the suggested alternative procedures involve similar or greater risks of cervical and uterine injury.
Nebraska's argument (6) is right-there
are no general medical studies documenting the comparative safety of the various abortion procedures.
Nor does the Court deny the import of
the American Medical Association's (AMA) recommendation (argument (7)) that intact D&X not be used unless
alternative procedures pose
materially greater risk to the woman. However, the Court cannot read ACOG's qualification that it could
identify a circumstance where D&X
was the "only" life- or health-preserving option as if, according to Nebraska's argument (8), it denied the
potential health-related need for D&X.
ACOG has also asserted that D&X can be the most appropriate abortion procedure and presents a variety of
potential safety advantages.
(iv) The upshot is a District Court finding that D&X obviates health
risks in certain circumstances, a highly plausible record-based
explanation of why that might be so, a division of medical opinion over whether D&X is generally safer,
and an absence of controlled medical
studies that would help answer these medical questions. Given these circumstances, the Court believes the
law requires a health exception.
For one thing, the word "necessary" in Casey's phrase "necessary, in appropriate medical judgment, for
the ... health of the mother," 505 U.S., at
879, cannot refer to absolute proof or require unanimity of medical opinion. Doctors often differ in their
estimation of comparative health risks
and appropriate treatment. And Casey's words "appropriate medical judgment" must
embody the judicial need to
differences of medical opinion. For another thing, the division of medical opinion signals uncertainty. If
those who believe that D&X is a safer
abortion method in certain circumstances turn out to be right, the absence of a health exception will place
women at an unnecessary risk. If
they are wrong, the exception will simply turn out to have been unnecessary. Pp. 18-19.
(c) The Nebraska statute imposes an "undue burden" on a woman's ability to choose an
abortion. See Casey, supra, at 874 (joint opinion).
(i) Nebraska does not deny that the statute imposes an "undue burden"
if it applies to the more
commonly used D&E procedure as well
as to D&X. This Court agrees with the Eighth Circuit that the D&E procedure falls within the statutory
prohibition of intentionally delivering into
the vagina a living fetus, or "a substantial portion thereof," for the purpose of performing a procedure
that the perpetrator knows will kill the fetus.
Because the evidence makes clear that D&E will often involve a physician pulling an arm, leg, or other
"substantial portion" of a still living fetus
into the vagina prior to the fetus' death, the statutory terms do not to distinguish between D&X and D&E.
The statute's language does not track
the medical differences between D&E and D&X, but covers both. Using the law's statutory terms, it is
impossible to distinguish between D&E
(where a foot or arm is drawn through the cervix) and D&X (where the body up to the head is drawn through
the cervix). Both procedures can
involve the introduction of a "substantial portion" of a still living fetus, through the cervix, into the
vagina-the very feature of an abortion that
leads to characterizing such a procedure as involving "partial birth." Pp. 20-21.
(ii) The Court rejects the Nebraska Attorney General's arguments that the
state law does differentiate between the two procedures-i.e.,
that the words "substantial portion" mean "the child up to the head," such that the law is inapplicable
where the physician introduces into the
birth canal anything less than the entire fetal body-and that the Court must defer to his views.
case law makes clear that the
Attorney General's narrowing interpretation cannot be given controlling weight. For one thing, this Court
normally follows lower federal-court
interpretations of state law, e.g., McMillian v. Monroe County, 520 U.S. 781, 786, and
rarely reviews such an
interpretation that is agreed upon
by the two lower federal courts. Virginia v. American Booksellers Assn., Inc., 484 U.S. 383, 395.
two lower courts both rejected the
Attorney General's narrowing interpretation. For another, the Court's precedent warns against accepting
"authoritative" an Attorney
General's interpretation of state law where, as here, that interpretation does not bind the state courts
local law enforcement. In Nebraska,
elected county attorneys have independent authority to initiate criminal prosecutions. Some present
prosecutors (and future Attorneys
General) might use the law at issue to pursue physicians who use D&E procedures. Nor can it be said that the
lower courts used the wrong
legal standard in assessing the Attorney General's interpretation. The Eighth Circuit recognized its
give the law a construction that
would avoid constitutional doubt, but nonetheless concluded that the Attorney General's interpretation would
twist the law's words, giving them
a meaning they cannot reasonably bear. The Eighth Circuit is far from alone in rejecting such a narrowing
interpretation, since 11 of the 12
federal courts that have interpreted on the merits the model statutory language on which the Nebraska law is
based have found the language
potentially applicable to abortion procedures other than D&X. Regardless, were the Court to grant the
Attorney General's views "substantial
weight," it would still have to reject his interpretation, for it conflicts with the statutory language. The
statutory words, "substantial portion,"
indicate that the statute does not include the Attorney General's restriction-"the child up to the head."
The Nebraska Legislature's debates
hurt the Attorney General's argument more than they help it, indicating that as small a portion of the
fetus as a foot would constitute a
"substantial portion." Even assuming that the distinction the Attorney General seeks to draw between the
overall abortion procedure itself and
the separate procedure used to kill an unborn child would help him make the D&E/D&X distinction he seeks,
there is no language in the statute
that supports it. Although adopting his interpretation might avoid the constitutional problem discussed above,
the Court lacks power do so
where, as here, the narrowing construction is not reasonable and readily apparent.
E.g., Boos v. Barry, 485 U.S.
312, 330. Finally, the Court has
never held that a federal litigant must await a state-court construction or the development of an
practice before bringing the federal
suit. City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 770, n. 11. But any authoritative
state-court construction is lacking here.
The Attorney General neither sought a narrowing interpretation from the Nebraska Supreme Court nor
federal courts to certify the
interpretive question. Cf. Arizonans for Official English v. Arizona, 520 U.S. 43. Even were the
to certify the question now, it could
not do so because certification is appropriate only where the statute is "fairly susceptible" to a narrowing
construction, see Houston v. Hill, 482
U.S. 451, 468-471, as is not the case here. Moreover, the Nebraska Supreme Court grants certification only if
the certified question is
determinative of the cause, see id., at 471, as it would not be here. In sum, because all those who
perform abortion procedures using the D&E
method must fear prosecution, conviction, and imprisonment, the Nebraska law imposes an undue
burden upon a woman's right to make an abortion decision. Pp. 21-27.
192 F.3d 1142, affirmed.
Breyer, J., delivered the opinion of the Court, in which Stevens, O'Connor, Souter, and Ginsburg, JJ., joined. Stevens, J., filed a concurring
opinion, in which Ginsburg, J., joined. O'Connor, J., filed a concurring opinion. Ginsburg, J., filed a concurring opinion, in which Stevens, J.,
joined. Rehnquist, C. J., and Scalia, J., filed dissenting opinions. Kennedy, J., filed a dissenting opinion, in which Rehnquist, C. J., joined. Thomas,
J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J., joined.