| [1] |
SUPREME COURT OF THE UNITED STATES
|
| [2] |
No. 99-830
|
| [3] |
2000.SCT.0042151 <http://www.versuslaw.com>
|
| [4] |
June 28, 2000
|
| [5] |
DON STENBERG, ATTORNEY GENERAL OF NEBRASKA, ET AL., PETITIONERS V. LEROY
CARHART
|
| [6] |
SYLLABUS BY THE COURT
|
| [7] |
OCTOBER TERM, 1999
|
| [8] |
STENBERG v. CARHART
|
| [9] |
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.
|
| [10] |
SUPREME COURT OF THE UNITED STATES
|
| [11] |
STENBERG, ATTORNEY GENERAL OF NEBRASKA, et al. v. CARHART
|
| [12] |
Certiorari To The United States Court Of Appeals For The Eighth Circuit
|
| [13] |
No. 99-830.
|
| [14] |
Argued April 25, 2000
|
| [15] |
Decided June 28, 2000
|
| [16] |
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" 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. The Eighth Circuit affirmed.
|
| [17] |
Held: Nebraska's statute criminalizing the performance of "partial
birth abortion[s]" violates the Federal Constitution, as interpreted
in Casey and Roe. Pp. 3-27.
|
| [18] |
(a) Because the statute seeks to ban one abortion method, the Court discusses
several different 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.
|
| [19] |
(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. Pp. 11-19.
|
| [20] |
(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.
|
| [21] |
(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.
|
| [22] |
(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 testimony
showed that the statutory ban would not increase a woman's risk of several
rare abortion complications -- the District Court simply relied on different
expert testimony than the State. Argument (5) -- the assertion of amici
Association of American Physicians and Surgeons et al. that 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 not 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. Pp. 15-18.
|
| [23] |
(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 tolerate responsible 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.
|
| [24] |
(c) The Nebraska statute imposes an "undue burden" on a woman's
ability to choose an abortion. See Casey, supra, at 874 (joint opinion).
Pp. 20-27.
|
| [25] |
(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.
|
| [26] |
(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. The Court's 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. Here, the two lower courts both rejected the Attorney General's
narrowing interpretation. For another, the Court's precedent warns against
accepting as "authoritative" an Attorney General's interpretation
of state law where, as here, that interpretation does not bind the state
courts or 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 duty to 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 established 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 asked the federal courts to certify
the interpretive question. Cf. Arizonans for Official English v. Arizona,
520 U. S. 43. Even were the Court inclined 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.
|
| [27] |
192 F. 3d 1142, affirmed.
|
| [28] |
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.
|
| [29] |
Court Below: 192 F. 3d 1142
|
| [30] |
The opinion of the court was delivered by: Justice Breyer
|
| [31] |
On Writ Of Certiorari To The United States Court Of Appeals For The Eighth
Circuit
|
| [32] |
We again consider the right to an abortion. We understand the controversial
nature of the problem. Millions of Americans believe that life begins at
conception and consequently that an abortion is akin to causing the death
of an innocent child; they recoil at the thought of a law that would permit
it. Other millions fear that a law that forbids abortion would condemn many
American women to lives that lack dignity, depriving them of equal liberty
and leading those with least resources to undergo illegal abortions with
the attendant risks of death and suffering. Taking account of these virtually
irreconcilable points of view, aware that constitutional law must govern
a society whose different members sincerely hold directly opposing views,
and considering the matter in light of the Constitution's guarantees of
fundamental individual liberty, this Court, in the course of a generation,
has determined and then redetermined that the Constitution offers basic
protection to the woman's right to choose. Roe v. Wade, 410 U. S. 113 (1973);
Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). We
shall not revisit those legal principles. Rather, we apply them to the circumstances
of this case.
|
| [33] |
Three established principles determine the issue before us. We shall set
them forth in the language of the joint opinion in Casey. First, before
"viability ... the woman has a right to choose to terminate her pregnancy."
Id., at 870 (joint opinion of O'Connor, Kennedy, and Souter, JJ.).
|
| [34] |
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. Id., at 877. An "undue burden
is ... shorthand for the conclusion that a state regulation has the purpose
or effect of placing a substantial obstacle in the path of a woman seeking
an abortion of a nonviable fetus." Ibid.
|
| [35] |
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.' "
Id., at 879 (quoting Roe v. Wade, supra, at 164-165).
|
| [36] |
We apply these principles to a Nebraska law banning "partial birth
abortion." The statute reads as follows:
|
| [37] |
"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." Neb. Rev. Stat. Ann. §28-328(1) (Supp. 1999).
|
| [38] |
The statute defines "partial birth abortion" as:
|
| [39] |
"an abortion procedure in which the person performing the abortion
partially delivers vaginally a living unborn child before killing the unborn
child and completing the delivery." §28-326(9).
|
| [40] |
It further defines "partially delivers vaginally a living unborn
child before killing the unborn child" to mean
|
| [41] |
"deliberately and intentionally delivering into the vagina a living
unborn child, or a substantial portion thereof, for the purpose of performing
a procedure that the person performing such procedure knows will kill the
unborn child and does kill the unborn child." Ibid.
|
| [42] |
The law classifies violation of the statute as a "Class III felony"
carrying a prison term of up to 20 years, and a fine of up to $25,000. §§28-328(2),
28-105. It also provides for the automatic revocation of a doctor's license
to practice medicine in Nebraska. §28-328(4).
|
| [43] |
We hold that this statute violates the Constitution.
|
| [44] |
I.
|
| [45] |
A.
|
| [46] |
Dr. Leroy Carhart is a Nebraska physician who performs abortions in a
clinical setting. He brought this lawsuit in Federal District Court seeking
a declaration that the Nebraska statute violates the Federal Constitution,
and asking for an injunction forbidding its enforcement. After a trial on
the merits, during which both sides presented several expert witnesses,
the District Court held the statute unconstitutional. 11 F. Supp. 2d 1099
(Neb. 1998). On appeal, the Eighth Circuit affirmed. 192 F. 3d 1142 (1999);
cf. Hope Clinic v. Ryan, 195 F. 3d 857 (CA7 1999) (en banc) (considering
a similar statute, but reaching a different legal conclusion). We granted
certiorari to consider the matter.
|
| [47] |
B.
|
| [48] |
Because Nebraska law seeks to ban one method of aborting a pregnancy,
we must describe and then discuss several different abortion procedures.
Considering the fact that those procedures seek to terminate a potential
human life, our discussion may seem clinically cold or callous to some,
perhaps horrifying to others. There is no alternative way, however, to acquaint
the reader with the technical distinctions among different abortion methods
and related factual matters, upon which the outcome of this case depends.
For that reason, drawing upon the findings of the trial court, underlying
testimony, and related medical texts, we shall describe the relevant methods
of performing abortions in technical detail.
|
| [49] |
The evidence before the trial court, as supported or supplemented in the
literature, indicates the following:
|
| [50] |
1. About 90% of all abortions performed in the United States take place
during the first trimester of pregnancy, before 12 weeks of gestational
age. Centers for Disease Control and Prevention, Abortion Surveillance --United
States, 1996, p. 41 (July 30, 1999) (hereinafter Abortion Surveillance).
During the first trimester, the predominant abortion method is "vacuum
aspiration," which involves insertion of a vacuum tube (cannula) into
the uterus to evacuate the contents. Such an abortion is typically performed
on an outpatient basis under local anesthesia. 11 F. Supp. 2d, at 1102;
Obstetrics: Normal & Problem Pregnancies 1253-1254 (S. Gabbe, J. Niebyl,
& J. Simpson eds. 3d ed. 1996). Vacuum aspiration is considered particularly
safe. The procedure's mortality rates for first trimester abortion are,
for example, 5 to 10 times lower than those associated with carrying the
fetus to term. Complication rates are also low. Id., at 1251; Lawson et
al., Abortion Mortality, United States, 1972 through 1987, 171 Am. J. Obstet.
Gynecol. 1365, 1368 (1994); M. Paul, et al., A Clinicians Guide to Medical
and Surgical Abortion 108-109 (1999) (hereinafter Medical and Surgical Abortion).
As the fetus grows in size, however, the vacuum aspiration method becomes
increasingly difficult to use. 11 F. Supp. 2d, at 1102-1103; Obstetrics:
Normal & Problem Pregnancies, supra, at 1268.
|
| [51] |
2. Approximately 10% of all abortions are performed during the second
trimester of pregnancy (12 to 24 weeks). Abortion Surveillance 41. In the
early 1970's, inducing labor through the injection of saline into the uterus
was the predominant method of second trimester abortion. Id., at 8; Planned
Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 76 (1976). Today, however,
the medical profession has switched from medical induction of labor to surgical
procedures for most second trimester abortions. The most commonly used procedure
is called "dilation and evacuation" (D&E). That procedure
(together with a modified form of vacuum aspiration used in the early second
trimester) accounts for about 95% of all abortions performed from 12 to
20 weeks of gestational age. Abortion Surveillance 41.
|
| [52] |
3. D&E "refers generically to transcervical procedures performed
at 13 weeks gestation or later." American Medical Association, Report
of Board of Trustees on Late-Term Abortion, App. 490 (hereinafter AMA Report).
The AMA Report, adopted by the District Court, describes the process as
follows.
|
| [53] |
Between 13 and 15 weeks of gestation:
|
| [54] |
"D&E is similar to vacuum aspiration except that the cervix must
be dilated more widely because surgical instruments are used to remove larger
pieces of tissue. Osmotic dilators are usually used. Intravenous fluids
and an analgesic or sedative may be administered. A local anesthetic such
as a paracervical block may be administered, dilating agents, if used, are
removed and instruments are inserted through the cervix into the uterus
to removal fetal and placental tissue. Because fetal tissue is friable and
easily broken, the fetus may not be removed intact. The walls of the uterus
are scraped with a curette to ensure that no tissue remains." Id.,
at 490-491.
|
| [55] |
After 15 weeks:
|
| [56] |
"Because the fetus is larger at this stage of gestation (particularly
the head), and because bones are more rigid, dismemberment or other destructive
procedures are more likely to be required than at earlier gestational ages
to remove fetal and placental tissue." Id., at 491.
|
| [57] |
After 20 weeks:
|
| [58] |
"Some physicians use intrafetal potassium chloride or digoxin to
induce fetal demise prior to a late D&E (after 20 weeks), to facilitate
evacuation." Id., at 491-492.
|
| [59] |
There are variations in D&E operative strategy; compare ibid. with
W. Hern, Abortion Practice 146-156 (1984), and Medical and Surgical Abortion
133-135. However, the common points are that D&E involves (1) dilation
of the cervix; (2) removal of at least some fetal tissue using nonvacuum
instruments; and (3) (after the 15th week) the potential need for instrumental
disarticulation or dismemberment of the fetus or the collapse of fetal parts
to facilitate evacuation from the uterus.
|
| [60] |
4. When instrumental disarticulation incident to D&E is necessary,
it typically occurs as the doctor pulls a portion of the fetus through the
cervix into the birth canal. Dr. Carhart testified at trial as follows:
|
| [61] |
"Dr. Carhart: ... `The dismemberment occurs between the traction
of ... my instrument and the counter-traction of the internal os of the
cervix ... .
|
| [62] |
"Counsel: `So the dismemberment occurs after you pulled a part of
the fetus through the cervix, is that correct?
|
| [63] |
"Dr. Carhart: `Exactly. Because you're using -- The cervix has two
strictures or two rings, the internal os and the external os ... that's
what's actually doing the dismembering... .
|
| [64] |
"Counsel: `When we talked before or talked before about a D&E,
that is not -- where there is not intention to do it intact, do you, in
that situation, dismember the fetus in utero first, then remove portions?
|
| [65] |
"Dr. Carhart: `I don't think so. ... I don't know of any way that
one could go in and intentionally dismember the fetus in the uterus. ...
It takes something that restricts the motion of the fetus against what you're
doing before you're going to get dismemberment.' " 11 F. Supp. 2d,
at 1104.
|
| [66] |
Dr. Carhart's specification of the location of fetal disarticulation is
consistent with other sources. See Medical and Surgical Abortion 135; App.
in Nos. 98-3245 and 98-3300 (CA8), p. 683, (testimony of Dr. Phillip Stubblefield)
("Q: So you don't actually dismember the fetus in utero, then take
the pieces out? A: No").
|
| [67] |
5. The D&E procedure carries certain risks. The use of instruments
within the uterus creates a danger of accidental perforation and damage
to neighboring organs. Sharp fetal bone fragments create similar dangers.
And fetal tissue accidentally left behind can cause infection and various
other complications. See 11 F. Supp. 2d, at 1110; Gynecologic, Obstetric,
and Related Surgery 1045 (D. Nichols & D. Clarke-Pearson eds. 2d ed.
2000); F. Cunningham et al., Williams Obstetrics 598 (20th ed. 1997). Nonetheless
studies show that the risks of mortality and complication that accompany
the D&E procedure between the 12th and 20th weeks of gestation are significantly
lower than those accompanying induced labor procedures (the next safest
midsecond trimester procedures). See Gynecologic, Obstetric, and Related
Surgery, supra, at 1046; AMA Report, App. 495, 496; Medical and Surgical
Abortion 139, 142; Lawson, 171 Am. J. Obstet. Gynecol., at 1368.
|
| [68] |
6. At trial, Dr. Carhart and Dr. Stubblefield described a variation of
the D&E procedure, which they referred to as an "intact D&E."
See 11 F. Supp. 2d, at 1105, 1111. Like other versions of the D&E technique,
it begins with induced dilation of the cervix. The procedure then involves
removing the fetus from the uterus through the cervix "intact,"
i.e., in one pass, rather than in several passes. Ibid. It is used after
16 weeks at the earliest, as vacuum aspiration becomes ineffective and the
fetal skull becomes too large to pass through the cervix. Id., at 1105.
The intact D&E proceeds in one of two ways, depending on the presentation
of the fetus. If the fetus presents head first (a vertex presentation),
the doctor collapses the skull; and the doctor then extracts the entire
fetus through the cervix. If the fetus presents feet first (a breech presentation),
the doctor pulls the fetal body through the cervix, collapses the skull,
and extracts the fetus through the cervix. Ibid. The breech extraction version
of the intact D&E is also known commonly as "dilation and extraction,"
or D&X. Id., at 1112. In the late second trimester, vertex, breech,
and traverse/compound (sideways) presentations occur in roughly similar
proportions. Medical and Surgical Abortion 135; 11 F. Supp. 2d, at 1108.
|
| [69] |
7. The intact D&E procedure can also be found described in certain
obstetric and abortion clinical textbooks, where two variations are recognized.
The first, as just described, calls for the physician to adapt his method
for extracting the intact fetus depending on fetal presentation. See Gynecologic,
Obstetric, and Related Surgery, supra, at 1043; Medical and Surgical Abortion
136-137. This is the method used by Dr. Carhart. See 11 F. Supp. 2d, at
1105. A slightly different version of the intact D&E procedure, associated
with Dr. Martin Haskell, calls for conversion to a breech presentation in
all cases. See Gynecologic, Obstetric, and Related Surgery, supra, at 1043
(citing M. Haskell, Dilation and Extraction for Late Second Trimester Abortion
(1992), in 139 Cong. Rec. 8605 (1993)).
|
| [70] |
8. The American College of Obstetricians and Gynecologists describes the
D&X procedure in a manner corresponding to a breech-conversion intact
D&E, including the following steps:
|
| [71] |
"1. deliberate dilatation of the cervix, usually over a sequence
of days;
|
| [72] |
"2. instrumental conversion of the fetus to a footling breech;
|
| [73] |
"3. breech extraction of the body excepting the head; and
|
| [74] |
"4. partial evacuation of the intracranial contents of a living fetus
to effect vaginal delivery of a dead but otherwise intact fetus." American
College of Obstetricians and Gynecologists Executive Board, Statement on
Intact Dilation and Extraction (Jan. 12, 1997) (hereinafter ACOG Statement),
App. 599-560.
|
| [75] |
Despite the technical differences we have just described, intact D&E
and D&X are sufficiently similar for us to use the terms interchangeably.
|
| [76] |
9. Dr. Carhart testified he attempts to use the intact D&E procedure
during weeks 16 to 20 because (1) it reduces the dangers from sharp bone
fragments passing through the cervix, (2) minimizes the number of instrument
passes needed for extraction and lessens the likelihood of uterine perforations
caused by those instruments, (3) reduces the likelihood of leaving infection-causing
fetal and placental tissue in the uterus, and (4) could help to prevent
potentially fatal absorption of fetal tissue into the maternal circulation.
See 11 F. Supp. 2d, at 1107. The District Court made no findings about the
D&X procedure's overall safety. Id., at 1126, n. 39. The District Court
concluded, however, that "the evidence is both clear and convincing
that Carhart's D&X procedure is superior to, and safer than, the ...
other abortion procedures used during the relevant gestational period in
the 10 to 20 cases a year that present to Dr. Carhart." Id., at 1126.
|
| [77] |
10. The materials presented at trial referred to the potential benefits
of the D&X procedure in circumstances involving nonviable fetuses, such
as fetuses with abnormal fluid accumulation in the brain (hydrocephaly).
See 11 F. Supp. 2d, at 1107 (quoting AMA Report, App. 492 (" `Intact
D&X may be preferred by some physicians, particularly when the fetus
has been diagnosed with hydrocephaly or other anomalies incompatible with
life outside the womb' ")); see also Grimes, The Continuing Need for
Late Abortions, 280 JAMA 747, 748 (Aug. 26, 1998) (D&X "may be
especially useful in the presence of fetal anomalies, such as hydrocephalus,"
because its reduction of the cranium allows "a smaller diameter to
pass through the cervix, thus reducing risk of cervical injury"). Others
have emphasized its potential for women with prior uterine scars, or for
women for whom induction of labor would be particularly dangerous. See Women's
Medical Professional Corp. v. Voinovich, 911 F. Supp. 2d 1051, 1067 (SD
Ohio 1995); Evans v. Kelley, 977 F. Supp. 2d 1283, 1296 (ED Mich. 1997).
|
| [78] |
11. There are no reliable data on the number of D&X abortions performed
annually. Estimates have ranged between 640 and 5,000 per year. Compare
Henshaw, Abortion Incidence and Services in the United States, 1995-1996,
30 Family Planning Perspectives 263, 268 (1998), with Joint Hearing on S.
6 and H. R. 929 before the Senate Committee on the Judiciary and the Subcommittee
on the Constitution of the House Committee on the Judiciary, 105th Cong.,
1st Sess., 46 (1997).
|
| [79] |
II.
|
| [80] |
The question before us is whether Nebraska's statute, making criminal
the performance of a "partial birth abortion," violates the Federal
Constitution, as interpreted in Planned Parenthood of Southeastern Pa. v.
Casey, 505 U. S. 833 (1992), and Roe v. Wade, 410 U. S. 113 (1973). We conclude
that it does for at least two independent reasons. First, the law lacks
any exception " `for the preservation of the ... health of the mother.'
" Casey, 505 U. S., at 879 (joint opinion of O'Connor, Kennedy, and
Souter, JJ.). 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. Id., at 874. We shall discuss each of these reasons in
turn.
|
| [81] |
A.
|
| [82] |
The Casey joint opinion reiterated what the Court held in Roe; that "
`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.' " 505 U. S., at 879 (quoting
Roe, supra, at 164-165) (emphasis added).
|
| [83] |
The fact that Nebraska's law applies both pre- and postviability aggravates
the constitutional problem presented. The State's interest in regulating
abortion previability is considerably weaker than postviability. See Casey,
supra, at 870. Since the law requires a health exception in order to validate
even a postviability abortion regulation, it at a minimum requires the same
in respect to previability regulation. See Casey, supra, at 880 (majority
opinion) (assuming need for health exception previability); see also Harris
v. McRae, 448 U. S. 297, 316 (1980).
|
| [84] |
The quoted standard also depends on the state regulations "promoting
[the State's] interest in the potentiality of human life." The Nebraska
law, of course, does not directly further an interest "in the potentiality
of human life" by saving the fetus in question from destruction, as
it regulates only a method of performing abortion. Nebraska describes its
interests differently. It says the law " `show[s] concern for the life
of the unborn,' " "prevent[s] cruelty to partially born children,"
and "preserve[s] the integrity of the medical profession." Brief
for Petitioners 48. But we cannot see how the interest-related differences
could make any difference to the question at hand, namely, the application
of the "health" requirement.
|
| [85] |
Consequently, the governing standard requires an exception "where
it is necessary, in appropriate medical judgment for the preservation of
the life or health of the mother," Casey, supra, at 879, for this Court
has made clear that a State may promote but not endanger a woman's health
when it regulates the methods of abortion. Thornburgh v. American College
of Obstetricians and Gynecologists, 476 U. S. 747, 768-769 (1986); Colautti
v. Franklin, 439 U. S. 379, 400 (1979); Danforth, 428 U. S., at 76-79; Doe
v. Bolton, 410 U. S. 179, 197 (1973).
|
| [86] |
Justice Thomas says that the cases just cited limit this principle to
situations where the pregnancy itself creates a threat to health. See post,
at 33. He is wrong. The cited cases, reaffirmed in Casey, recognize that
a State cannot subject women's health to significant risks both in that
context, and also where state regulations force women to use riskier methods
of abortion. Our cases have repeatedly invalidated statutes that in the
process of regulating the methods of abortion, imposed significant health
risks. They make clear that a risk to a women's health is the same whether
it happens to arise from regulating a particular method of abortion, or
from barring abortion entirely. Our holding does not go beyond those cases,
as ratified in Casey.
|
| [87] |
1.
|
| [88] |
Nebraska responds that the law does not require a health exception unless
there is a need for such an exception. And here there is no such need, it
says. It argues that "safe alternatives remain available" and
"a ban on partial-birth abortion/D&X would create no risk to the
health of women." Brief for Petitioners 29, 40. The problem for Nebraska
is that the parties strongly contested this factual question in the trial
court below; and the findings and evidence support Dr. Carhart. The State
fails to demonstrate that banning D&X without a health exception may
not create significant health risks for women, because the record shows
that significant medical authority supports the proposition that in some
circumstances, D&X would be the safest procedure.
|
| [89] |
We shall reiterate in summary form the relevant findings and evidence.
On the basis of medical testimony the District Court concluded that "Carhart's
D&X procedure is ... safer tha[n] the D&E and other abortion procedures
used during the relevant gestational period in the 10 to 20 cases a year
that present to Dr. Carhart." 11 F. Supp. 2d, at 1126. It found that
the D&X procedure permits the fetus to pass through the cervix with
a minimum of instrumentation. Ibid. It thereby
|
| [90] |
"reduces operating time, blood loss and risk of infection; reduces
complications from bony fragments; reduces instrument-inflicted damage to
the uterus and cervix; prevents the most common causes of maternal mortality
(DIC and amniotic fluid embolus); and eliminates the possibility of `horrible
complications' arising from retained fetal parts." Ibid.
|
| [91] |
The District Court also noted that a select panel of the American College
of Obstetricians and Gynecologists concluded that D&X " `may be
the best or most appropriate procedure in a particular circumstance to save
the life or preserve the health of a woman.' " Id., at 1105, n. 10
(quoting ACOG Statement, App. 600-601) (but see an important qualification,
infra, at 14). With one exception, the federal trial courts that have heard
expert evidence on the matter have reached similar factual conclusions.
See Rhode Island Medical Soc. v. Whitehouse, 66 F. Supp. 2d 288, 314 (RI
1999); A Choice for Women v. Butterworth, 54 F. Supp. 2d 1148, 1153, 1156
(SD Fla 1998); Causeway Medical Suite v. Foster, 43 F. Supp. 2d 604, 613-614
(ED La. 1999); Richmond Medical Center for Women v. Gilmore, 11 F. Supp.
2d 795, 827, n. 40 (ED Va. 1998); Hope Clinic v. Ryan, 995 F. Supp. 2d 847,
852 (ND Ill. 1998), vacated, 195 F. 3d 857 (CA7 1999), cert. pending, No.
99-1152; Voinovich, 911 F. Supp. 2d, at 1069-1070; Kelley, 977 F. Supp.
2d, at 1296; but see Planned Parenthood of Wis. v. Doyle, 44 F. Supp. 2d
975, 980 (WD Wis.) vacated, 195 F. 3d 857 (CA7 1999).
|
| [92] |
2.
|
| [93] |
Nebraska, along with supporting amici, replies that these findings are
irrelevant, wrong, or applicable only in a tiny number of instances. It
says (1) that the D&X procedure is "little-used," (2) by only
"a handful of doctors." Brief for Petitioners 32. It argues (3)
that D&E and labor induction are at all times "safe alternative
procedures." Id., at 36. It refers to the testimony of petitioners'
medical expert, who testified (4) that the ban would not increase a woman's
risk of several rare abortion complications (disseminated intravascular
coagulopathy and amniotic fluid embolus), id., at 37; App. 642-644.
|
| [94] |
The Association of American Physicians and Surgeons et al., amici supporting
Nebraska, argue (5) that elements of the D&X procedure may create special
risks, including cervical incompetence caused by overdilitation, injury
caused by conversion of the fetal presentation, and dangers arising from
the "blind" use of instrumentation to pierce the fetal skull while
lodged in the birth canal. See Brief for Association of American Physicians
and Surgeons et al. as Amici Curiae 21-23; see also Sprang & Neerhof,
Rationale for Banning Abortions Late in Pregnancy, 280 JAMA 744, 746 (Aug.
26, 1998).
|
| [95] |
Nebraska further emphasizes (6) that there are no medical studies "establishing
the safety of the partial-birth abortion/D&X procedure," Brief
for Petitioners 39, and "no medical studies comparing the safety of
partial-birth abortion/D&X to other abortion procedures," ibid.
It points to, id., at 35, (7) an American Medical Association policy statement
that " `there does not appear to be any identified situation in which
intact D&X is the only appropriate procedure to induce abortion,' "
Late Term Pregnancy Termination Techniques, AMA Policy H-5.982 (1997). And
it points out (8) that the American College of Obstetricians and Gynecologists
qualified its statement that D&X "may be the best or most appropriate
procedure," by adding that the 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 woman." App. 600-601.
|
| [96] |
3.
|
| [97] |
We find these eight arguments 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 D&X is an infrequently used abortion procedure;
but the health exception question is whether protecting women's health requires
an exception for those infrequent occasions. A rarely used treatment might
be necessary to treat a rarely occurring disease that could strike anyone
-- the State cannot prohibit a person from obtaining treatment simply by
pointing out that most people do not need it. Nor can we know whether the
fact that only a "handful" of doctors use the procedure (argument
(2)) reflects the comparative rarity of late second term abortions, the
procedure's recent development, Gynecologic, Obstetric, and Related Surgery,
at 1043, the controversy surrounding it, or, as Nebraska suggests, the procedure's
lack of utility.
|
| [98] |
For another thing, the record responds to Nebraska's (and amici's) medically
based arguments. In respect to argument (3), for example, the District Court
agreed that alternatives, such as D&E and induced labor, are "safe"
but found that the D&X method was significantly safer in certain circumstances.
11 F. Supp. 2d, at 1125-1126. In respect to argument (4), the District Court
simply relied on different expert testimony -- testimony stating that "
`[a]nother advantage of the Intact D&E is that it eliminates the risk
of embolism of cerebral tissue into the woman's blood stream.' " Id.,
at 1124 (quoting Hearing on H. R. 1833 before the Senate Committee on the
Judiciary, 104th Cong., 1st Sess., 260 (1995) (statement of W. Hern).
|
| [99] |
In response to amici's argument (5), the American College of Obstetricians
and Gynecologists, in its own amici brief, denies that D&X generally
poses risks greater than the alternatives. It says that the suggested alternative
procedures involve similar or greater risks of cervical and uterine injury,
for "D&E procedures, involve similar amounts of dilitation"
and "of course childbirth involves even greater cervical dilitation."
Brief for American College of Obstetricians and Gynecologists et al. as
Amici Curiae 23. The College points out that Dr. Carhart does not reposition
the fetus thereby avoiding any risks stemming from conversion to breech
presentation, and that, as compared with D&X, D&E involves the same,
if not greater, "blind" use of sharp instruments in the uterine
cavity. Id., at 23-24.
|
| [100] |
We do not quarrel with Nebraska's argument (6), for Nebraska is right.
There are no general medical studies documenting comparative safety. Neither
do we deny the import of the American Medical Association's statement (argument
(7)) -- even though the State does omit the remainder of that statement:
"The AMA recommends that the procedure not be used unless alternative
procedures pose materially greater risk to the woman." Late Term Pregnancy
Termination Techniques, AMA Policy H-5.982 (emphasis added).
|
| [101] |
We cannot, however, read the American College of Obstetricians and Gynecologists
panel's qualification (that it could not "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. That is because the College writes the following in its
amici brief:
|
| [102] |
"Depending on the physician's skill and experience, the D&X procedure
can be the most appropriate abortion procedure for some women in some circumstances.
D&X presents a variety of potential safety advantages over other abortion
procedures used during the same gestational period. Compared to D&Es
involving dismemberment, D&X involves less risk of uterine perforation
or cervical laceration because it requires the physician to make fewer passes
into the uterus with sharp instruments and reduces the presence of sharp
fetal bone fragments that can injure the uterus and cervix. There is also
considerable evidence that D&X reduces the risk of retained fetal tissue,
a serious abortion complication that can cause maternal death, and that
D&X reduces the incidence of a `free floating' fetal head that can be
difficult for a physician to grasp and remove and can thus cause maternal
injury. That D&X procedures usually take less time than other abortion
methods used at a comparable stage of pregnancy can also have health advantages.
The shorter the procedure, the less blood loss, trauma, and exposure to
anesthesia. The intuitive safety advantages of intact D&E are supported
by clinical experience. Especially for women with particular health conditions,
there is medical evidence that D&X may be safer than available alternatives."
Brief for American College of Obstetricians and Gynecologists et al. as
Amici Curiae 21-22 (citation and footnotes omitted).
|
| [103] |
4.
|
| [104] |
The upshot is a District Court finding that D&X significantly obviates
health risks in certain circumstances, a highly plausible record-based explanation
of why that might be so, a division of opinion among some medical experts
over whether D&X is generally safer, and an absence of controlled medical
studies that would help answer these medical questions. Given these medically
related evidentiary circumstances, we believe the law requires a health
exception.
|
| [105] |
The word "necessary" in Casey's phrase "necessary, in appropriate
medical judgment, for the preservation of the life or health of the mother,"
505 U. S., at 879 (internal quotation marks omitted), cannot refer to an
absolute necessity or to absolute proof. Medical treatments and procedures
are often considered appropriate (or inappropriate) in light of estimated
comparative health risks (and health benefits) in particular cases. Neither
can that phrase 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 tolerate responsible differences of medical opinion --
differences of a sort that the American Medical Association and American
College of Obstetricians and Gynecologists' statements together indicate
are present here.
|
| [106] |
For another thing, the division of medical opinion about the matter at
most means uncertainty, a factor that signals the presence of risk, not
its absence. That division here involves highly qualified knowledgeable
experts on both sides of the issue. Where a significant body of medical
opinion believes a procedure may bring with it greater safety for some patients
and explains the medical reasons supporting that view, we cannot say that
the presence of a different view by itself proves the contrary. Rather,
the uncertainty means a significant likelihood that those who believe that
D&X is a safer abortion method in certain circumstances may turn out
to be right. If so, then the absence of a health exception will place women
at an unnecessary risk of tragic health consequences. If they are wrong,
the exception will simply turn out to have been unnecessary.
|
| [107] |
In sum, Nebraska has not convinced us that a health exception is "never
necessary to preserve the health of women." Reply Brief for Petitioners
4. Rather, a statute that altogether forbids D&X creates a significant
health risk. The statute consequently must contain a health exception. This
is not to say, as Justice Thomas and Justice Kennedy claim, that a State
is prohibited from proscribing an abortion procedure whenever a particular
physician deems the procedure preferable. By no means must a State grant
physicians "unfettered discretion" in their selection of abortion
methods. Post, at 14 (Kennedy, J., dissenting). But where substantial medical
authority supports the proposition that banning a particular abortion procedure
could endanger women's health, Casey requires the statute to include a health
exception when the procedure is " `necessary, in appropriate medical
judgment, for the preservation of the life or health of the mother.' "
505 U. S., at 879. Requiring such an exception in this case is no departure
from Casey, but simply a straightforward application of its holding.
|
| [108] |
B.
|
| [109] |
The Eighth Circuit found the Nebraska statute unconstitutional because,
in Casey's words, it has the "effect of placing a substantial obstacle
in the path of a woman seeking an abortion of a nonviable fetus." 505
U. S., at 877. It thereby places an "undue burden" upon a woman's
right to terminate her pregnancy before viability. Ibid. 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. And we
agree with the Eighth Circuit that it does so apply.
|
| [110] |
Our earlier discussion of the D&E procedure, supra, at 5-7, shows
that it falls within the statutory prohibition. The statute forbids "deliberately
and intentionally delivering into the vagina a living unborn child, or a
substantial portion thereof, for the purpose of performing a procedure that
the person performing such procedure knows will kill the unborn child."
Neb. Rev. Stat. Ann. §28-326(9) (Supp. 1999). We do not understand how one
could distinguish, using this language, 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). Evidence before the trial court makes clear
that D&E will often involve a physician pulling a "substantial
portion" of a still living fetus, say, an arm or leg, into the vagina
prior to the death of the fetus. 11 F. Supp. 2d, at 1128; id., at 1128-1130.
Indeed D&E involves dismemberment that commonly occurs only when the
fetus meets resistance that restricts the motion of the fetus: "The
dismemberment occurs between the traction of ... [the] instrument and the
counter-traction of the internal os of the cervix." Id., at 1128. And
these events often do not occur until after a portion of a living fetus
has been pulled into the vagina. Id., at 1104; see also Medical and Surgical
Abortion 135 ("During the mid-second trimester, separation of the fetal
corpus may occur when the fetus is drawn into the lower uterine segment,
where compression and traction against the endocervix facilitates disarticulation").
|
| [111] |
Even if the statute's basic aim is to ban D&X, its language makes
clear that it also covers a much broader category of procedures. The language
does not track the medical differences between D&E and D&X -- though
it would have been a simple matter, for example, to provide an exception
for the performance of D&E and other abortion procedures. E.g., Kan.
Stat. Ann. §65-6721(b)(1) (Supp. 1999). Nor does the statute anywhere suggest
that its application turns on whether a portion of the fetus' body is drawn
into the vagina as part of a process to extract an intact fetus after collapsing
the head as opposed to a process that would dismember the fetus. Thus, the
dissenters' argument that the law was generally intended to bar D&X
can be both correct and irrelevant. The relevant question is not whether
the legislature wanted to ban D&X; it is whether the law was intended
to apply only to D&X. The plain language covers both procedures. A rereading
of pages 5-10 of this opinion, as well as Justice Thomas' dissent at pages
5-7, will make clear why we can find no difference, in terms of this statute,
between the D&X procedure as described and the D&E procedure as
it might be performed. (In particular, compare post, at 6-7, (Thomas, J.,
dissenting), with post, at 7-10 (Thomas, J., dissenting)). 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 Justice Thomas to characterize such a procedure as
involving "partial birth."
|
| [112] |
The Nebraska State Attorney General argues that the statute does differentiate
between the two procedures. He says that the statutory words "substantial
portion" mean "the child up to the head." He consequently
denies the statute's application where the physician introduces into the
birth canal a fetal arm or leg or anything less than the entire fetal body.
Brief for Petitioners 20. He argues further that we must defer to his views
about the meaning of the state statute. Id., at 12-13.
|
| [113] |
We cannot accept the Attorney General's narrowing interpretation of the
Nebraska statute. This Court's case law makes clear that we are not to give
the Attorney General's interpretative views controlling weight. For one
thing, this Court normally follows lower federal-court interpretations of
state law. McMillian v. Monroe County, 520 U. S. 781, 786 (1997); Brockett
v. Spokane Arcades, Inc., 472 U. S. 491, 500, n. 9 (1985). It "rarely
reviews a construction of state law agreed upon by the two lower federal
courts." Virginia v. American Booksellers Assn., Inc., 484 U. S. 383,
395 (1988). In this case, the two lower courts have both rejected the Attorney
General's narrowing interpretation.
|
| [114] |
For another, our precedent warns against accepting as "authoritative"
an Attorney General's interpretation of state law when "the Attorney
General does not bind the state courts or local law enforcement authorities."
Ibid.. Under Nebraska law, the Attorney General's interpretative views do
not bind the state courts. State v. Coffman, 213 Neb. 560, 561, 330 N. W.
2d 727, 728 (1983) (Attorney General's issued opinions, while entitled to
"substantial weight" and "to be respectfully considered,"
are of "no controlling authority"). Nor apparently do they bind
elected county attorneys, to whom Nebraska gives an independent authority
to initiate criminal prosecutions. Neb. Rev. Stat. Ann. §§23-1201(1), 28-328(5),
84-205(3) (1999 and Supp. 1999); cf. Crandon v. United States, 494 U. S.
152, 177 (1990) (Scalia, J., concurring in judgment) ("[W]e have never
thought that the interpretation of those charged with prosecuting criminal
statutes is entitled to deference").
|
| [115] |
Nor can we say that the lower courts used the wrong legal standard in
assessing the Attorney General's interpretation. The Eighth Circuit recognized
its "duty to give [the law] a construction ... that would avoid constitutional
doubts." 192 F. 3d, at 1150. It nonetheless concluded that the Attorney
General's interpretation would "twist the words of the law and give
them a meaning they cannot reasonably bear." Ibid. The Eighth Circuit
is far from alone in rejecting such a narrowing interpretation. The language
in question is based on model statutory language (though some States omit
any further definition of "partial birth abortion"), which 10
lower federal courts have considered on the merits. All 10 of those courts
(including the Eighth Circuit) have found the language potentially applicable
to other abortion procedures. See Planned Parenthood of Greater Iowa, Inc.
v. Miller, 195 F. 3d 386 (CA8 1999); Little Rock Family Planning Services
v. Jegley, 192 F. 3d 794, 797-798 (CA8 1999); Hope Clinic, 195 F. 3d, at
865-871 (imposing precautionary injunction to prevent application beyond
D&X); id., at 885-889 (Posner, C. J., dissenting); Rhode Island Medical
Soc., 66 F. Supp. 2d, at 309310; Richmond Medical Center for Women, 55 F.
Supp. 2d, at 471; A Choice for Women, 54 F. Supp. 2d, at 1155; Causeway
Medical Suite, 43 F. Supp. 2d, at 614-615; Planned Parenthood of Central
N. J. v. Verniero, 41 F. Supp. 2d 478, 503-504 (NJ 1998); Eubanks v. Stengel,
28 F. Supp. 2d 1024, 1034-1035 (WD Ky. 1998); Planned Parenthood of Southern
Arizona, Inc. v. Woods, 982 F. Supp. 2d 1369, 1378 (Ariz. 1997); Kelley,
977 F. Supp. 2d, at 1317; but cf. Richmond Medical Center v. Gilmore, 144
F. 3d 326, 330-332 (CA4 1998) (Luttig, J., granting stay).
|
| [116] |
Regardless, even were we to grant the Attorney General's views "substantial
weight," we still have to reject his interpretation, for it conflicts
with the statutory language discussed at page 21, above. The Attorney General,
echoed by the dissents, tries to overcome that language by relying on other
language in the statute; in particular, the words "partial birth abortion,"
a term ordinarily associated with the D&X procedure, and the words "partially
delivers vaginally a living unborn child." Neb. Rev. Stat. Ann. §28-326(9).
But these words cannot help the Attorney General. They are subject to the
statute's further explicit statutory definition, specifying that both terms
include "delivering into the vagina a living unborn child, or a substantial
portion thereof." Ibid. When a statute includes an explicit definition,
we must follow that definition, even if it varies from that term's ordinary
meaning. Meese v. Keene, 481 U. S. 465, 484-485 (1987) ("It is axiomatic
that the statutory definition of the term excludes unstated meanings of
that term"); Colautti v. Franklin, 439 U. S. at 392-393, n. 10 ("As
a rule, `a definition which declares what a term "means" ... excludes
any meaning that is not stated' "); Western Union Telegraph Co. v.
Lenroot, 323 U. S. 490, 502 (1945); Fox v. Standard Oil Co. of N. J., 294
U. S. 87, 95-96 (1935) (Cardozo, J.); see also 2A N. Singer, Sutherland
on Statutes and Statutory Construction §47.07, p. 152, and n. 10 (5th ed.
1992) (collecting cases). That is to say, the statute, read "as a whole,"
post, at 20 (Thomas, J., dissenting), leads the reader to a definition.
That definition does not include the Attorney General's restriction -- "the
child up to the head." Its words, "substantial portion,"
indicate the contrary.
|
| [117] |
The Attorney General also points to the Nebraska Legislature's debates,
where the term "partial birth abortion" appeared frequently. But
those debates hurt his argument more than they help it. Nebraska's legislators
focused directly upon the meaning of the word "substantial." One
senator asked the bill's sponsor, "[Y]ou said that as small a portion
of the fetus as a foot would constitute a substantial portion in your opinion.
Is that correct?" The sponsoring senator replied, "Yes, I believe
that's correct." App. 452-453; see also id., at 442-443 (same senator
explaining "substantial" would "indicate that more than a
little bit has been delivered into the vagina," i.e., "[e]nough
that would allow for the procedure to end up with the killing of the unborn
child"); id., at 404 (rejecting amendment to limit law to D&X).
The legislature seems to have wanted to avoid more limiting language lest
it become too easy to evade the statute's strictures -- a motive that Justice
Thomas well explains. Post, at 24-25. That goal, however, exacerbates the
problem.
|
| [118] |
The Attorney General, again echoed by the dissents, further argues that
the statute "distinguishes between the overall `abortion procedure'
itself and the separate `procedure' used to kill the unborn child."
Brief for Petitioners 16-18; post, at 13-14 (opinion of Thomas, J.), 21
(opinion of Kennedy, J.). Even assuming that the distinction would help
the Attorney General make the D&E/D&X distinction he seeks, however,
we cannot find any language in the statute that supports it. He wants us
to read "procedure" in the statute's last sentence to mean "separate
procedure," i.e., the killing of the fetus, as opposed to a whole procedure,
i.e., a D&E or D&X abortion. But the critical word "separate"
is missing. And the same word "procedure," in the same subsection
and throughout the statute, is used to refer to an entire abortion procedure.
Neb. Rev. Stat. Ann. §§28-326(9), 28-328(1)-(4) (Supp. 1999); cf. Gustafson
v. Alloyd Co., 513 U. S. 561, 570 (1995) ("[I]dentical words used in
different parts of the same act are intended to have the same meaning"
(internal quotation marks omitted)).
|
| [119] |
The dissenters add that the statutory words "partially delivers"
can be read to exclude D&E. Post, at 12-13 (opinion of Thomas, J.),
19-20 (opinion of Kennedy, J.). They say that introduction of, say, a limb
or both limbs into the vagina does not involve "delivery." But
obstetric textbooks and even dictionaries routinely use that term to describe
any facilitated removal of tissue from the uterus, not only the removal
of an intact fetus. E.g., Obstetrics: Normal & Problem Pregnancies,
at 388 (describing "delivery" of fetal membranes, placenta, and
umbilical cord in the third stage of labor); B. Maloy, Medical Dictionary
for Lawyers 221 (3d ed. 1960) ("Also, the removal of a [fetal] part
such as the placenta"); 4 Oxford English Dictionary 422 (2d ed. 1989)
(to "deliver" means, inter alia, to "disburden (a women)
of the foetus"); Webster's Third New International Dictionary (1993)
("[D]elivery" means "the expulsion or extraction of a fetus
and its membranes"). In any event, the statute itself specifies that
it applies both to delivering "an intact unborn child" or "a
substantial portion thereof." The dissents cannot explain how introduction
of a substantial portion of a fetus into the vagina pursuant to D&X
is a "delivery," while introduction pursuant to D&E is not.
|
| [120] |
We are aware that adopting the Attorney General's interpretation might
avoid the constitutional problem discussed in this section. But we are "without
power to adopt a narrowing construction of a state statute unless such a
construction is reasonable and readily apparent." Boos v. Barry, 485
U. S. 312, 330 (1988); Gooding v. Wilson, 405 U. S. 518, 520-521 (1972).
For the reasons stated, it is not reasonable to replace the term "substantial
portion" with the Attorney General's phrase "body up to the head."
See Almendarez-Torres v. United States, 523 U. S. 224, 237-239 (1998) (statute
must be "genuinely susceptible" to two interpretations).
|
| [121] |
Finally, the law does not require us to certify the state law question
to the Nebraska Supreme Court. Of course, we lack any authoritative state-court
construction. But "we have never held that a federal litigant must
await a state-court construction or the development of an established practice
before bringing the federal suit." City of Lakewood v. Plain Dealer
Publishing Co., 486 U. S. 750, 770, n. 11 (1988). The Attorney General did
not seek a narrowing interpretation from the Nebraska Supreme Court nor
did he ask the federal courts to certify the interpretive question. See
Brief for State Appellants in Nos. 98-3245 and 98-3300 (CA8); cf. Arizonans
for Official English v. Arizona, 520 U. S. 43 (1997). Even if we were inclined
to certify the question now, we cannot do so. Certification of a question
(or abstention) is appropriate only where the statute is "fairly susceptible"
to a narrowing construction, see Houston v. Hill, 482 U. S. 451, 468-471
(1987). We believe it is not. Moreover, the Nebraska Supreme Court grants
certification only if the certified question is "determinative of the
cause." Neb. Rev. Stat. §24-219 (1995); see also Houston v. Hill, supra,
at 471 ("It would be manifestly inappropriate to certify a question
in a case where ... there is no uncertain question of state law whose resolution
might affect the pending federal claim"). Here, it would not be determinative,
in light of the discussion in Part II-A.
|
| [122] |
In sum, using this law some present prosecutors and future Attorneys General
may choose to pursue physicians who use D&E procedures, the most commonly
used method for performing previability second trimester abortions. All
those who perform abortion procedures using that method must fear prosecution,
conviction, and imprisonment. The result is an undue burden upon a woman's
right to make an abortion decision. We must consequently find the statute
unconstitutional.
|
| [123] |
The judgment of the Court of Appeals is
|
| [124] |
Affirmed.
|
| [125] |
Stevens, J., concurring
|
| [126] |
Justice Stevens, with whom Justice Ginsburg joins, concurring.
|
| [127] |
Although much ink is spilled today describing the gruesome nature of late-term
abortion procedures, that rhetoric does not provide me a reason to believe
that the procedure Nebraska here claims it seeks to ban is more brutal,
more gruesome, or less respectful of "potential life" than the
equally gruesome procedure Nebraska claims it still allows. Justice Ginsburg
and Judge Posner have, I believe, correctly diagnosed the underlying reason
for the enactment of this legislation -- a reason that also explains much
of the Court's rhetoric directed at an objective that extends well beyond
the narrow issue that this case presents. The rhetoric is almost, but not
quite, loud enough to obscure the quiet fact that during the past 27 years,
the central holding of Roe v. Wade, 410 U. S. 113 (1973), has been endorsed
by all but 4 of the 17 Justices who have addressed the issue. That holding
-- that the word "liberty" in the Fourteenth Amendment includes
a woman's right to make this difficult and extremely personal decision --
makes it impossible for me to understand how a State has any legitimate
interest in requiring a doctor to follow any procedure other than the one
that he or she reasonably believes will best protect the woman in her exercise
of this constitutional liberty. But one need not even approach this view
today to conclude that Nebraska's law must fall. For the notion that either
of these two equally gruesome procedures performed at this late stage of
gestation is more akin to infanticide than the other, or that the State
furthers any legitimate interest by banning one but not the other, is simply
irrational. See U. S. Const., Amdt. 14.
|
| [128] |
O'Connor, J., concurring
|
| [129] |
Justice O'Connor, concurring.
|
| [130] |
The issue of abortion is one of the most contentious and controversial
in contemporary American society. It presents extraordinarily difficult
questions that, as the Court recognizes, involve "virtually irreconcilable
points of view." Ante, at 1. The specific question we face today is
whether Nebraska's attempt to proscribe a particular method of abortion,
commonly known as "partial-birth abortion," is constitutional.
For the reasons stated in the Court's opinion, I agree that Nebraska's statute
cannot be reconciled with our decision in Planned Parenthood of Southeastern
Pa. v. Casey, 505 U. S. 833 (1992), and is therefore unconstitutional. I
write separately to emphasize the following points.
|
| [131] |
First, the Nebraska statute is inconsistent with Casey because it lacks
an exception for those instances when the banned procedure is necessary
to preserve the health of the mother. See id., at 879 (joint opinion of
O'Connor, Kennedy, and Souter, JJ.). Importantly, Nebraska's own statutory
scheme underscores this constitutional infirmity. As we held in Casey, prior
to viability "the woman has a right to choose to terminate her pregnancy."
Id., at 870. After the fetus has become viable, States may substantially
regulate and even proscribe abortion, but any such regulation or proscription
must contain an exception for instances " `where it is necessary, in
appropriate medical judgment, for the preservation of the life or health
of the mother.' " Id., at 879 (quoting Roe v. Wade, 410 U. S. 113,
165 (1973)). Nebraska has recognized this constitutional limitation in its
separate statute generally proscribing postviability abortions. See Neb.
Rev. Stat. Ann. §28-329 (Supp. 1999). That statute provides that "[n]o
abortion shall be performed after the time at which, in the sound medical
judgment of the attending physician, the unborn child clearly appears to
have reached viability, except when necessary to preserve the life or health
of the mother." Ibid. (emphasis added). Because even a postviability
proscription of abortion would be invalid absent a health exception, Nebraska's
ban on previability partial-birth abortions, under the circumstances presented
here, must include a health exception as well, since the State's interest
in regulating abortions before viability is "considerably weaker"
than after viability. Ante, at 11. The statute at issue here, however, only
excepts those procedures "necessary to save the life of the mother
whose life is endangered by a physical disorder, physical illness, or physical
injury." Neb. Rev. Stat. Ann. §28-328(1) (Supp. 1999). This lack of
a health exception necessarily renders the statute unconstitutional.
|
| [132] |
Contrary to the assertions of Justice Kennedy and Justice Thomas, the
need for a health exception does not arise from "the individual views
of Dr. Carhart and his supporters." Post, at 14 (Kennedy, J., dissenting);
see also post, at 35-36 (Thomas, J., dissenting). Rather, as the majority
explains, where, as here, "a significant body of medical opinion believes
a procedure may bring with it greater safety for some patients and explains
the medical reasons supporting that view," ante, at 19, then Nebraska
cannot say that the procedure will not, in some circumstances, be "necessary
to preserve the life or health of the mother." Accordingly, our precedent
requires that the statute include a health exception.
|
| [133] |
Second, Nebraska's statute is unconstitutional on the alternative and
independent ground that it imposes an undue burden on a woman's right to
choose to terminate her pregnancy before viability. Nebraska's ban covers
not just the dilation and extraction (D&X) procedure, but also the dilation
and evacuation (D&E) procedure, "the most commonly used method
for performing previability second trimester abortions." Ante, at 27.
The statute defines the banned procedure as "deliberately and intentionally
delivering into the vagina a living unborn child, or a substantial portion
thereof, for the purpose of performing a procedure that the person performing
such procedure knows will kill the unborn child and does kill the unborn
child." Neb. Rev. Stat. Ann. §28-326(9) (Supp. 1999) (emphasis added).
As the Court explains, the medical evidence establishes that the D&E
procedure is included in this definition. Thus, it is not possible to interpret
the statute's language as applying only to the D&X procedure. Moreover,
it is significant that both the District Court and the Court of Appeals
interpreted the statute as prohibiting abortions performed using the D&E
method as well as the D&X method. See 192 F. 3d 1142, 1150 (CA8 1999);
11 F. Supp. 2d 1099, 1127-1131 (Neb. 1998). We have stated on several occasions
that we ordinarily defer to the construction of a state statute given it
by the lower federal courts unless such a construction amounts to plain
error. See, e.g., Bishop v. Wood, 426 U. S. 341, 346 (1976) ("[T]his
Court has accepted the interpretation of state law in which the District
Court and the Court of Appeals have concurred even if an examination of
the state-law issue without such guidance might have justified a different
conclusion"); The Tungus v. Skovgaard, 358 U. S. 588, 596 (1959). Such
deference is not unique to the abortion context, but applies generally to
state statutes addressing all areas of the law. See, e.g., UNUM Life Ins.
Co. of America v. Ward, 526 U. S. 358, 368 (1999) ("notice-prejudice"
rule in state insurance law); Brockett v. Spokane Arcades, Inc., 472 U.
S. 491, 499 (1985) (moral nuisance law); Runyon v. McCrary, 427 U. S. 160,
181 (1976) (statute of limitations for personal injury actions); Bishop
v. Wood, supra, at 346, n. 10 (city employment ordinance). Given this construction,
the statute is impermissible. Indeed, Nebraska conceded at oral argument
that "the State could not prohibit the D&E procedure." Tr.
of Oral Arg. 10. By proscribing the most commonly used method for previability
second trimester abortions, see ante, at 5, the statute creates a "substantial
obstacle to a woman seeking an abortion," Casey, supra, at 884, and
therefore imposes an undue burden on a woman's right to terminate her pregnancy
prior to viability.
|
| [134] |
It is important to note that, unlike Nebraska, some other States have
enacted statutes more narrowly tailored to proscribing the D&X procedure
alone. Some of those statutes have done so by specifically excluding from
their coverage the most common methods of abortion, such as the D&E
and vacuum aspiration procedures. For example, the Kansas statute states
that its ban does not apply to the "(A) [s]uction curettage abortion
procedure; (B) suction aspiration abortion procedure; or (C) dilation and
evacuation abortion procedure involving dismemberment of the fetus prior
to removal from the body of the pregnant woman." Kan Stat. Ann. §65-6721(b)(2)
(Supp. 1998). The Utah statute similarly provides that its prohibition "does
not include the dilation and evacuation procedure involving dismemberment
prior to removal, the suction curettage procedure, or the suction aspiration
procedure for abortion." Utah Code Ann. §76-7-310.5(1)(a) (1999). Likewise,
the Montana statute defines the banned procedure as one in which "(A)
the living fetus is removed intact from the uterus until only the head remains
in the uterus; (B) all or a part of the intracranial contents of the fetus
are evacuated; (C) the head of the fetus is compressed; and (D) following
fetal demise, the fetus is removed from the birth canal." Mont. Code
Ann. §50-20-401(3)(c)(ii) (Supp. 1999). By restricting their prohibitions
to the D&X procedure exclusively, the Kansas, Utah, and Montana statutes
avoid a principal defect of the Nebraska law.
|
| [135] |
If Nebraska's statute limited its application to the D&X procedure
and included an exception for the life and health of the mother, the question
presented would be quite different than the one we face today. As we held
in Casey, an abortion regulation constitutes an undue burden if it "has
the purpose or effect of placing a substantial obstacle in the path of a
woman seeking an abortion of a nonviable fetus." 505 U. S., at 877.
If there were adequate alternative methods for a woman safely to obtain
an abortion before viability, it is unlikely that prohibiting the D&X
procedure alone would "amount in practical terms to a substantial obstacle
to a woman seeking an abortion." Id., at 884. Thus, 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.
|
| [136] |
Nebraska's statute, however, does not meet these criteria. It contains
no exception for when the procedure, in appropriate medical judgment, is
necessary to preserve the health of the mother; and it proscribes not only
the D&X procedure but also the D&E procedure, the most commonly
used method for previability second trimester abortions, thus making it
an undue burden on a woman's right to terminate her pregnancy. For these
reasons, I agree with the Court that Nebraska's law is unconstitutional.
|
| [137] |
Ginsburg, J., concurring
|
| [138] |
Justice Ginsburg, with whom Justice Stevens joins, concurring.
|
| [139] |
I write separately only to stress that amidst all the emotional uproar
caused by an abortion case, we should not lose sight of the character of
Nebraska's "partial birth abortion" law. As the Court observes,
this law does not save any fetus from destruction, for it targets only "a
method of performing abortion." Ante, at 11-12. Nor does the statute
seek to protect the lives or health of pregnant women. Moreover, as Justice
Stevens points out, ante, at 1 (concurring opinion), the most common method
of performing previability second trimester abortions is no less distressing
or susceptible to gruesome description. Seventh Circuit Chief Judge Posner
correspondingly observed, regarding similar bans in Wisconsin and Illinois,
that the law prohibits the D&X procedure "not because the procedure
kills the fetus, not because it risks worse complications for the woman
than alternative procedures would do, not because it is a crueler or more
painful or more disgusting method of terminating a pregnancy." Hope
Clinic v. Ryan, 195 F. 3d 857, 881 (CA7 1999) (dissenting opinion). Rather,
Chief Judge Posner commented, the law prohibits the procedure because the
State legislators seek to chip away at the private choice shielded by Roe
v. Wade, even as modified by Casey. Id., at 880-882.
|
| [140] |
A state regulation that "has the purpose or effect of placing a substantial
obstacle in the path of a woman seeking an abortion of a nonviable fetus"
violates the Constitution. Planned Parenthood of Southeastern Pa. v. Casey,
505 U. S. 833, 877 (1992) (joint opinion of O'Connor, Kennedy, and Souter,
JJ.). Such an obstacle exists if the State stops a woman from choosing the
procedure her doctor "reasonably believes will best protect the woman
in [the] exercise of [her] constitutional liberty." Ante, at 1 (Stevens,
J., concurring); see Casey, 505 U. S., at 877 ("means chosen by the
State to further the interest in potential life must be calculated to inform
the woman's free choice, not hinder it"). Again as stated by Chief
Judge Posner, "if a statute burdens constitutional rights and all that
can be said on its behalf is that it is the vehicle that legislators have
chosen for expressing their hostility to those rights, the burden is undue."
Hope Clinic, 195 F. 3d, at 881.
|
| [141] |
Rehnquist, C. J., dissenting
|
| [142] |
Chief Justice Rehnquist, dissenting.
|
| [143] |
I did not join the joint opinion in Planned Parenthood of Southeastern
Pa. v. Casey, 505 U. S. 833 (1992), and continue to believe that case is
wrongly decided. Despite my disagreement with the opinion, under the rule
laid down in Marks v. United States, 430 U. S. 188, 193 (1977), the Casey
joint opinion represents the holding of the Court in that case. I believe
Justice Kennedy and Justice Thomas have correctly applied Casey's principles
and join their dissenting opinions.
|
| [144] |
Scalia, J., dissenting
|
| [145] |
Justice Scalia, dissenting.
|
| [146] |
I am optimistic enough to believe that, one day, Stenberg v. Carhart will
be assigned its rightful place in the history of this Court's jurisprudence
beside Korematsu and Dred Scott. The method of killing a human child --
one cannot even accurately say an entirely unborn human child -- proscribed
by this statute is so horrible that the most clinical description of it
evokes a shudder of revulsion. And the Court must know (as most state legislatures
banning this procedure have concluded) that demanding a "health exception"
-- which requires the abortionist to assure himself that, in his expert
medical judgment, this method is, in the case at hand, marginally safer
than others (how can one prove the contrary beyond a reasonable doubt?)
--is to give live-birth abortion free rein. The notion that the Constitution
of the United States, designed, among other things, "to establish Justice,
insure domestic Tranquility, . . . and secure the Blessings of Liberty to
ourselves and our Posterity," prohibits the States from simply banning
this visibly brutal means of eliminating our half-born posterity is quite
simply absurd.
|
| [147] |
Even so, I had not intended to write separately here until the focus of
the other separate writings (including the one I have joined) gave me cause
to fear that this case might be taken to stand for an error different from
the one that it actually exemplifies. Because of the Court's practice of
publishing dissents in the order of the seniority of their authors, this
writing will appear in the reports before those others, but the reader will
not comprehend what follows unless he reads them first.
|
| [148] |
The two lengthy dissents in this case have, appropriately enough, set
out to establish that today's result does not follow from this Court's most
recent pronouncement on the matter of abortion, Planned Parenthood of Southeastern
Pa. v. Casey, 505 U. S. 833 (1992). It would be unfortunate, however, if
those who disagree with the result were induced to regard it as merely a
regrettable misapplication of Casey. It is not that, but is Casey's logical
and entirely predictable consequence. To be sure, the Court's construction
of this statute so as to make it include procedures other than live-birth
abortion involves not only a disregard of fair meaning, but an abandonment
of the principle that even ambiguous statutes should be interpreted in such
fashion as to render them valid rather than void. Casey does not permit
that jurisprudential novelty -- which must be chalked up to the Court's
inclination to bend the rules when any effort to limit abortion, or even
to speak in opposition to abortion, is at issue. It is of a piece, in other
words, with Hill v. Colorado, ante, p. ___, also decided today.
|
| [149] |
But the Court gives a second and independent reason for invalidating this
humane (not to say anti-barbarian) law: That it fails to allow an exception
for the situation in which the abortionist believes that this live-birth
method of destroying the child might be safer for the woman. (As pointed
out by Justice Thomas, and elaborated upon by Justice Kennedy, there is
no good reason to believe this is ever the case, but -- who knows? -- it
sometime might be.)
|
| [150] |
I have joined Justice Thomas's dissent because I agree that today's decision
is an "unprecedented expansio[n]" of our prior cases, post, at
35, "is not mandated" by Casey's "undue burden" test,
post, at 33, and can even be called (though this pushes me to the limit
of my belief) "obviously irreconcilable with Casey's explication of
what its undue-burden standard requires," post, at 4. But I never put
much stock in Casey's explication of the inexplicable. In the last analysis,
my judgment that Casey does not support today's tragic result can be traced
to the fact that what I consider to be an "undue burden" is different
from what the majority considers to be an "undue burden" -- a
conclusion that can not be demonstrated true or false by factual inquiry
or legal reasoning. It is a value judgment, dependent upon how much one
respects (or believes society ought to respect) the life of a partially
delivered fetus, and how much one respects (or believes society ought to
respect) the freedom of the woman who gave it life to kill it. Evidently,
the five Justices in today's majority value the former less, or the latter
more, (or both), than the four of us in dissent. Case closed. There is no
cause for anyone who believes in Casey to feel betrayed by this outcome.
It has been arrived at by precisely the process Casey promised -- a democratic
vote by nine lawyers, not on the question whether the text of the Constitution
has anything to say about this subject (it obviously does not); nor even
on the question (also appropriate for lawyers) whether the legal traditions
of the American people would have sustained such a limitation upon abortion
(they obviously would); but upon the pure policy question whether this limitation
upon abortion is "undue" -- i.e., goes too far.
|
| [151] |
In my dissent in Casey, I wrote that the "undue burden" test
made law by the joint opinion created a standard that was "as doubtful
in application as it is unprincipled in origin," Casey, 505 U. S.,
at 985; "hopelessly unworkable in practice," id., at 986; "ultimately
standardless," id., at 987. Today's decision is the proof. As long
as we are debating this issue of necessity for a health-of-the-mother exception
on the basis of Casey, it is really quite impossible for us dissenters to
contend that the majority is wrong on the law -- any more than it could
be said that one is wrong in law to support or oppose the death penalty,
or to support or oppose mandatory minimum sentences. The most that we can
honestly say is that we disagree with the majority on their policy-judgment-couched-as-law.
And those who believe that a 5-to-4 vote on a policy matter by unelected
lawyers should not overcome the judgment of 30 state legislatures have a
problem, not with the application of Casey, but with its existence. Casey
must be overruled.
|
| [152] |
While I am in an I-told-you-so mood, I must recall my bemusement, in Casey,
at the joint opinion's expressed belief that Roe v. Wade had "call[ed]
the contending sides of a national controversy to end their national division
by accepting a common mandate rooted in the Constitution," Casey, 505
U. S., at 867, and that the decision in Casey would ratify that happy truce.
It seemed to me, quite to the contrary, that "Roe fanned into life
an issue that has inflamed our national politics in general, and has obscured
with its smoke the selection of Justices to this Court in particular, ever
since"; and that, "by keeping us in the abortion-umpiring business,
it is the perpetuation of that disruption, rather than of any Pax Roeana,
that the Court's new majority decrees." Id., at 995-996. Today's decision,
that the Constitution of the United States prevents the prohibition of a
horrible mode of abortion, will be greeted by a firestorm of criticism --as
well it should. I cannot understand why those who acknowledge that, in the
opening words of Justice O'Connor's concurrence, "[t]he issue of abortion
is one of the most contentious and controversial in contemporary American
society," ante, at 1, persist in the belief that this Court, armed
with neither constitutional text nor accepted tradition, can resolve that
contention and controversy rather than be consumed by it. If only for the
sake of its own preservation, the Court should return this matter to the
people -- where the Constitution, by its silence on the subject, left it
--and let them decide, State by State, whether this practice should be allowed.
Casey must be overruled.
|
| [153] |
Kennedy, J., dissenting
|
| [154] |
Justice Kennedy, with whom The Chief Justice joins, dissenting.
|
| [155] |
For close to two decades after Roe v. Wade, 410 U. S. 113 (1973), the
Court gave but slight weight to the interests of the separate States when
their legislatures sought to address persisting concerns raised by the existence
of a woman's right to elect an abortion in defined circumstances. When the
Court reaffirmed the essential holding of Roe, a central premise was that
the States retain a critical and legitimate role in legislating on the subject
of abortion, as limited by the woman's right the Court restated and again
guaranteed. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833
(1992). The political processes of the State are not to be foreclosed from
enacting laws to promote the life of the unborn and to ensure respect for
all human life and its potential. Id., at 871 (joint opinion of O'Connor,
Kennedy, and Souter, JJ.). The State's constitutional authority is a vital
means for citizens to address these grave and serious issues, as they must
if we are to progress in knowledge and understanding and in the attainment
of some degree of consensus.
|
| [156] |
The Court's decision today, in my submission, repudiates this understanding
by invalidating a statute advancing critical state interests, even though
the law denies no woman the right to choose an abortion and places no undue
burden upon the right. The legislation is well within the State's competence
to enact. Having concluded Nebraska's law survives the scrutiny dictated
by a proper understanding of Casey, I dissent from the judgment invalidating
it.
|
| [157] |
I.
|
| [158] |
The Court's failure to accord any weight to Nebraska's interest in prohibiting
partial-birth abortion is erroneous and undermines its discussion and holding.
The Court's approach in this regard is revealed by its description of the
abortion methods at issue, which the Court is correct to describe as "clinically
cold or callous." Ante, at 3-4. The majority views the procedures from
the perspective of the abortionist, rather than from the perspective of
a society shocked when confronted with a new method of ending human life.
Words invoked by the majority, such as "transcervical procedures,"
"[o]smotic dilators," "instrumental disarticulation,"
and "paracervical block," may be accurate and are to some extent
necessary, ante, at 5-6; but for citizens who seek to know why laws on this
subject have been enacted across the Nation, the words are insufficient.
Repeated references to sources understandable only to a trained physician
may obscure matters for persons not trained in medical terminology. Thus
it seems necessary at the outset to set forth what may happen during an
abortion.
|
| [159] |
The person challenging Nebraska's law is Dr. Leroy Carhart, a physician
who received his medical degree from Hahnemann Hospital and University in
1973. App. 29. Dr. Carhart performs the procedures in a clinic in Nebraska,
id., at 30, and will also travel to Ohio to perform abortions there, id.,
at 86. Dr. Carhart has no specialty certifications in a field related to
childbirth or abortion and lacks admitting privileges at any hospital. Id.,
at 82, 83. He performs abortions throughout pregnancy, including when he
is unsure whether the fetus is viable. Id., at 116. In contrast to the physicians
who provided expert testimony in this case (who are board certified instructors
at leading medical education institutions and members of the American Board
of Obstetricians and Gynecologists), Dr. Carhart performs the partial-birth
abortion procedure (D&X) that Nebraska seeks to ban. He also performs
the other method of abortion at issue in the case, the D&E.
|
| [160] |
As described by Dr. Carhart, the D&E procedure requires the abortionist
to use instruments to grasp a portion (such as a foot or hand) of a developed
and living fetus and drag the grasped portion out of the uterus into the
vagina. Id., at 61. Dr. Carhart uses the traction created by the opening
between the uterus and vagina to dismember the fetus, tearing the grasped
portion away from the remainder of the body. Ibid. The traction between
the uterus and vagina is essential to the procedure because attempting to
abort a fetus without using that traction is described by Dr. Carhart as
"pulling the cat's tail" or "drag[ging] a string across the
floor, you'll just keep dragging it. It's not until something grabs the
other end that you are going to develop traction." Id., at 62. The
fetus, in many cases, dies just as a human adult or child would: It bleeds
to death as it is torn from limb from limb. Id., at 63. The fetus can be
alive at the beginning of the dismemberment process and can survive for
a time while its limbs are being torn off. Dr. Carhart agreed that "[w]hen
you pull out a piece of the fetus, let's say, an arm or a leg and remove
that, at the time just prior to removal of the portion of the fetus, ...
the fetus [is] alive." Id., at 62. Dr. Carhart has observed fetal heartbeat
via ultrasound with "extensive parts of the fetus removed," id.,
at 64, and testified that mere dismemberment of a limb does not always cause
death because he knows of a physician who removed the arm of a fetus only
to have the fetus go on to be born "as a living child with one arm."
Id., at 63. At the conclusion of a D&E abortion no intact fetus remains.
In Dr. Carhart's words, the abortionist is left with "a tray full of
pieces." Id., at 125.
|
| [161] |
The other procedure implicated today is called "partial-birth abortion"
or the D&X. The D&X can be used, as a general matter, after 19 weeks
gestation because the fetus has become so developed that it may survive
intact partial delivery from the uterus into the vagina. Id., at 61. In
the D&X, the abortionist initiates the woman's natural delivery process
by causing the cervix of the woman to be dilated, sometimes over a sequence
of days. Id., at 492. The fetus' arms and legs are delivered outside the
uterus while the fetus is alive; witnesses to the procedure report seeing
the body of the fetus moving outside the woman's body. Brief for Petitioners
4. At this point, the abortion procedure has the appearance of a live birth.
As stated by one group of physicians, "[a]s the physician manually
performs breech extraction of the body of a live fetus, excepting the head,
she continues in the apparent role of an obstetrician delivering a child."
Brief for Association of American Physicians and Surgeons et al. as Amici
Curiae 27. With only the head of the fetus remaining in utero, the abortionist
tears open the skull. According to Dr. Martin Haskell, a leading proponent
of the procedure, the appropriate instrument to be used at this stage of
the abortion is a pair of scissors. M. Haskell, Dilation and Extraction
for Late Second Trimester Abortion (1992), in 139 Cong. Rec. 8605 (1993).
Witnesses report observing the portion of the fetus outside the woman react
to the skull penetration. Brief for Petitioners 4. The abortionist then
inserts a suction tube and vacuums out the developing brain and other matter
found within the skull. The process of making the size of the fetus' head
smaller is given the clinically neutral term "reduction procedure."
11 F. Supp. 2d 1099, 1106 (Neb. 1998). Brain death does not occur until
after the skull invasion, and, according to Dr. Carhart, the heart of the
fetus may continue to beat for minutes after the contents of the skull are
vacuumed out. App. 58. The abortionist next completes the delivery of a
dead fetus, intact except for the damage to the head and the missing contents
of the skull.
|
| [162] |
Of the two described procedures, Nebraska seeks only to ban the D&X.
In light of the description of the D&X procedure, it should go without
saying that Nebraska's ban on partial-birth abortion furthers purposes States
are entitled to pursue. Dr. Carhart nevertheless maintains the State has
no legitimate interest in forbidding the D&X. As he interprets the controlling
cases in this Court, the only two interests the State may advance through
regulation of abortion are in the health of the woman who is considering
the procedure and in the life of the fetus she carries. Brief for Respondent
45. The Court, as I read its opinion, accedes to his views, misunderstanding
Casey and the authorities it confirmed.
|
| [163] |
Casey held that cases decided in the wake of Roe v. Wade, 410 U. S. 113
(1973), had "given [state interests] too little acknowledgment and
implementation." 505 U. S., at 871 (joint opinion of O'Connor, Kennedy,
and Souter, JJ.). The decision turned aside any contention that a person
has the "right to decide whether to have an abortion without `interference
from the State,' " id., at 875, and rejected a strict scrutiny standard
of review as "incompatible with the recognition that there is a substantial
state interest in potential life throughout pregnancy." Id., at 876.
"The very notion that the State has a substantial interest in potential
life leads to the conclusion that not all regulations must be deemed unwarranted."
Ibid. We held it was inappropriate for the Judicial Branch to provide an
exhaustive list of state interests implicated by abortion. Id., at 877.
|
| [164] |
Casey is premised on the States having an important constitutional role
in defining their interests in the abortion debate. It is only with this
principle in mind that Nebraska's interests can be given proper weight.
The State's brief describes its interests as including concern for the life
of the unborn and "for the partially-born," in preserving the
integrity of the medical profession, and in "erecting a barrier to
infanticide." Brief for Petitioners 48-49. A review of Casey demonstrates
the legitimacy of these policies. The Court should say so.
|
| [165] |
States may take sides in the abortion debate and come down on the side
of life, even life in the unborn:
|
| [166] |
"Even in the earliest stages of pregnancy, the State may enact rules
and regulations designed to encourage [a woman] to know that there are philosophic
and social arguments of great weight that can be brought to bear in favor
of continuing the pregnancy to full term and that there are procedures and
institutions to allow adoption of unwanted children as well as a certain
degree of state assistance if the mother chooses to raise the child herself."
505 U. S., at 872 (joint opinion of O'Connor, Kennedy, and Souter, JJ.).
|
| [167] |
States also have an interest in forbidding medical procedures which, in
the State's reasonable determination, might cause the medical profession
or society as a whole to become insensitive, even disdainful, to life, including
life in the human fetus. Abortion, Casey held, has consequences beyond the
woman and her fetus. The States' interests in regulating are of concomitant
extension. Casey recognized that abortion is, "fraught with consequences
for ... the persons who perform and assist in the procedure [and for] society
which must confront the knowledge that these procedures exist, procedures
some deem nothing short of an act of violence against innocent human life."
Id., at 852.
|
| [168] |
A State may take measures to ensure the medical profession and its members
are viewed as healers, sustained by a compassionate and rigorous ethic and
cognizant of the dignity and value of human life, even life which cannot
survive without the assistance of others. Ibid.; Washington v. Glucksberg,
521 U. S. 702, 730-734 (1997).
|
| [169] |
Casey demo |