Stenberg v. Carhart, 530 U.S. 914 (2000)

Carhart represents another episode in the continuing abortion controversy. Leroy Carhart, a physician specializing in abortions, filed an action seeking a preliminary injunction against the enforcement of Nebraska’s 1997 ‘‘Partial-Birth Abortion Statute’’ because for abortions performed after the sixteenth week he attempts a partial-birth abortion: he delivers alive the body of the unborn child intact, except the head, then crushes the skull and evacuates the contents of the brain so that the compressed skull can be more easily pulled through the cervix.

Justice Breyer, writing for a five-justice majority, held Nebraska’s partial-birth abortion ban unconstitutional. According to Justice Breyer, three ‘‘established principles’’ control all abortion cases. ‘‘First, before ‘viability . . . the woman has a right to choose to terminate her pregnancy.’’’ ‘‘Second, ‘a law designed to further the State’s interest in fetal life which imposes an undue burden on the woman’s decision before fetal viability’ is unconstitutional.’’ ‘‘Third, ‘subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’’’

Applying the three principles to Nebraska’s statute, the Court held that the statute violates the Constitution two independent ways: ‘‘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 D&E abortion, thereby unduly burdening the right to choose abortion itself.’’

The Court held that to pass constitutional muster Nebraska’s statute needed a ‘‘health of the mother’’ exception even though the Court acknowledged that (1) ‘‘[t]here are no general medical studies demonstrating comparative safety’’ of the D&X procedure; (2) the American Medical Association has a stated policy announcing ‘‘that ‘there does not appear to be any identified situation in which the intact D&X is the only appropriate procedure to induce abortion’’’; and (3) the American College of Obstetricians’ panel ‘‘‘could identify no circumstances under which [the D&X] procedure . . . would be the only option to save the life or preserve the health of the mother.’’’ Despite this supporting medical evidence, the Court held ‘‘Nebraska has not convinced us that a health exception is ‘never necessary to preserve the health of women.’’’

The Court also opined that because an ambiguity in the statute regarding whether Nebraska’s attempt to ban the rarely used D&X procedure may also cover the commonly used D&E procedure, the ban also places ‘‘an undue burden upon a woman’s right to make an abortion decision.’’

In her critical swing-vote concurring opinion, Justice O’Connor, commented that ‘‘a ban on partial- birth abortion that only proscribed the D & X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional in my view.’’

Whether Carhart remains an important case essentially establishing abortion on demand will depend on how the Court responds to future legislation narrowly tailored to the D&X procedure, which also includes legislative findings on the health-ofthe- mother issue.

RICHARD COLLIN MANGRUM