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| [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 demonstrates that the interests asserted by the State are legitimate
and recognized by law. It is argued, however, that a ban on the D&X
does not further these interests. This is because, the reasoning continues,
the D&E method, which Nebraska claims to be beyond its intent to regulate,
can still be used to abort a fetus and is no less dehumanizing than the
D&X method. While not adopting the argument in express terms, the Court
indicates tacit approval of it by refusing to reject it in a forthright
manner. Rendering express what is only implicit in the majority opinion,
Justice Stevens and Justice Ginsburg are forthright in declaring that the
two procedures are indistinguishable and that Nebraska has acted both irrationally
and without a proper purpose in enacting the law. The issue is not whether
members of the judiciary can see a difference between the two procedures.
It is whether Nebraska can. The Court's refusal to recognize Nebraska's
right to declare a moral difference between the procedure is a dispiriting
disclosure of the illogic and illegitimacy of the Court's approach to the
entire case. |
| [170] | Nebraska was entitled to find the existence of a consequential moral difference
between the procedures. We are referred to substantial medical authority
that D&X perverts the natural birth process to a greater degree than
D&E, commandeering the live birth process until the skull is pierced.
American Medical Association (AMA) publications describe the D&X abortion
method as "ethically wrong." AMA Board of Trustees Factsheet on
HR 1122 (June 1997), in App. to Brief for Association of American Physicians
and Surgeons et al. as Amici Curiae 1 (AMA Factsheet). The D&X differs
from the D&E because in the D&X the fetus is "killed outside
of the womb" where the fetus has "an autonomy which separates
it from the right of the woman to choose treatments for her own body."
Ibid.; see also App. 639-640; Brief for Association of American Physicians
and Surgeons et al. as Amici Curiae 27 ("Intact D&X is aberrant
and troubling because the technique confuses the disparate role of a physician
in childbirth and abortion in such a way as to blur the medical, legal,
and ethical line between infanticide and abortion"). Witnesses to the
procedure relate that the fingers and feet of the fetus are moving prior
to the piercing of the skull; when the scissors are inserted in the back
of the head, the fetus' body, wholly outside the woman's body and alive,
reacts as though startled and goes limp. D&X's stronger resemblance
to infanticide means Nebraska could conclude the procedure presents a greater
risk of disrespect for life and a consequent greater risk to the profession
and society, which depend for their sustenance upon reciprocal recognition
of dignity and respect. The Court is without authority to second-guess this
conclusion. |
| [171] | Those who oppose abortion would agree, indeed would insist, that both
procedures are subject to the most severe moral condemnation, condemnation
reserved for the most repulsive human conduct. This is not inconsistent,
however, with the further proposition that as an ethical and moral matter
D&X is distinct from D&E and is a more serious concern for medical
ethics and the morality of the larger society the medical profession must
serve. Nebraska must obey the legal regime which has declared the right
of the woman to have an abortion before viability. Yet it retains its power
to adopt regulations which do not impose an undue burden on the woman's
right. By its regulation, Nebraska instructs all participants in the abortion
process, including the mother, of its moral judgment that all life, including
the life of the unborn, is to be respected. The participants, Nebraska has
determined, cannot be indifferent to the procedure used and must refrain
from using the natural delivery process to kill the fetus. The differentiation
between the procedures is itself a moral statement, serving to promote respect
for human life; and if the woman and her physician in contemplating the
moral consequences of the prohibited procedure conclude that grave moral
consequences pertain to the permitted abortion process as well, the choice
to elect or not to elect abortion is more informed; and the policy of promoting
respect for life is advanced. |
| [172] | It ill-serves the Court, its institutional position, and the constitutional
sources it seeks to invoke to refuse to issue a forthright affirmation of
Nebraska's right to declare that critical moral differences exist between
the two procedures. The natural birth process has been appropriated; yet
the Court refuses to hear the State's voice in defining its interests in
its law. The Court's holding contradicts Casey's assurance that the State's
constitutional position in the realm of promoting respect for life is more
than marginal. |
| [173] | II. |
| [174] | Demonstrating a further and basic misunderstanding of Casey, the Court
holds the ban on the D&X procedure fails because it does not include
an exception permitting an abortionist to perform a D&X whenever he
believes it will best preserve the health of the woman. Casting aside the
views of distinguished physicians and the statements of leading medical
organizations, the Court awards each physician a veto power over the State's
judgment that the procedures should not be performed. Dr. Carhart has made
the medical judgment to use the D&X procedure in every case, regardless
of indications, after 15 weeks gestation. 11 F. Supp. 2d, at 1105. Requiring
Nebraska to defer to Dr. Carhart's judgment is no different than forbidding
Nebraska from enacting a ban at all; for it is now Dr. Leroy Carhart who
sets abortion policy for the State of Nebraska, not the legislature or the
people. Casey does not give precedence to the views of a single physician
or a group of physicians regarding the relative safety of a particular procedure. |
| [175] | I am in full agreement with Justice Thomas that the appropriate Casey
inquiry is not, as the Court would have it, whether the State is preventing
an abortionist from doing something that, in his medical judgment, he believes
to be the most appropriate course of treatment. Post, at 32-36. Casey addressed
the question "whether the State can resolve ... philosophic questions
[about abortion] in such a definitive way that a woman lacks all choice
in the matter." 505 U. S., at 850. We decided the issue against the
State, holding that a woman cannot be deprived of the opportunity to make
reproductive decisions. Id., at 860. Casey made it quite evident, however,
that the State has substantial concerns for childbirth and the life of the
unborn and may enact laws "which in no real sense depriv[e] women of
the ultimate decision." Id., at 875 (joint opinion of O'Connor, Kennedy,
and Souter, JJ.). Laws having the "purpose or effect of placing a substantial
obstacle in the path of a woman seeking an abortion of a nonviable fetus"
are prohibited. Id., at 877. Nebraska's law does not have this purpose or
effect. |
| [176] | The holding of Casey, allowing a woman to elect abortion in defined circumstances,
is not in question here. Nebraska, however, was entitled to conclude that
its ban, while advancing important interests regarding the sanctity of life,
deprived no woman of a safe abortion and therefore did not impose a substantial
obstacle on the rights of any woman. The American College of Obstetricians
and Gynecologists (ACOG) "could identify no circumstances under which
[D&X] would be the only option to save the life or preserve the health
of the woman." App. 600-601. The American Medical Association agrees,
stating the "AMA's expert panel, which included an ACOG representative,
could not find `any' identified circumstance where it was `the only appropriate
alternative.' " AMA Factsheet 1. The Court's conclusion that the D&X
is the safest method requires it to replace the words "may be"
with the word "is" in the following sentence from ACOG's position
statement: "An intact D&X, however, may be the best or most appropriate
procedure in a particular circumstance." App. 600-601. |
| [177] | No studies support the contention that the D&X abortion method is
safer than other abortion methods. Brief for Respondent 36, n. 41. Leading
proponents of the procedure acknowledge that the D&X has "disadvantages"
versus other methods because it requires a high degree of surgical skill
to pierce the skull with a sharp instrument in a blind procedure. Haskell,
139 Cong. Rec. 8605 (1993). Other doctors point to complications that may
arise from the D&X. Brief for American Physicians and Surgeons et al.
as Amici Curiae 21-23; App. 186. A leading physician, Frank Boehm, M. D.,
who has performed and supervised abortions as director of the Fetal Intensive
Care Unit and the Maternal/Fetal Medicine Division at Vanderbilt University
Hospital, has refused to support use of the D&X, both because no medical
need for the procedure exists and because of ethical concerns. Id., at 636,
639-640, 656-657. Dr. Boehm, a fellow of ACOG, id., at 565, supports abortion
rights and has provided sworn testimony in opposition to previous state
attempts to regulate abortion. Id., at 608-614. |
| [178] | The Court cannot conclude the D&X is part of standard medical practice.
It is telling that no expert called by Dr. Carhart, and no expert testifying
in favor of the procedure, had in fact performed a partial-birth abortion
in his or her medical practice. E.g., id., at 308 (testimony of Dr. Phillip
Stubblefield). In this respect their opinions were courtroom conversions
of uncertain reliability. Litigation in other jurisdictions establishes
that physicians do not adopt the D&X procedure as part of standard medical
practice. E.g., Richmond Medical Center for Women v. Gilmore, 144 F. 3d
326, 328 (CA4 1998); Hope Clinic v. Ryan, 195 F. 3d 857, 871 (CA7 1999);
see also App. 603-604. It is quite wrong for the Court to conclude, as it
seems to have done here, that Dr. Carhart conforms his practice to the proper
standard of care because he has incorporated the procedure into his practice.
Neither Dr. Boehm nor Dr. Carhart's lead expert, Dr. Stubblefield (the chairman
of the Department of Obstetrics and Gynecology at Boston University School
of Medicine and director of obstetrics and gynecology for the Boston Medical
Center) has done so. |
| [179] | Substantial evidence supports Nebraska's conclusion that its law denies
no woman a safe abortion. The most to be said for the D&X is it may
present an unquantified lower risk of complication for a particular patient
but that other proven safe procedures remain available even for this patient.
Under these circumstances, the Court is wrong to limit its inquiry to the
relative physical safety of the two procedures, with the slightest potential
difference requiring the invalidation of the law. As Justice O'Connor explained
in an earlier case, the State may regulate based on matters beyond "what
various medical organizations have to say about the physical safety of a
particular procedure." Akron v. Akron Center for Reproductive Health,
Inc., 462 U. S. 416, 467 (1983) (dissenting opinion). Where the difference
in physical safety is, at best, marginal, the State may take into account
the grave moral issues presented by a new abortion method. See Casey, 505
U. S., at 880 (requiring a regulation to impose a "significant threat
to the life or health of a woman" before its application would impose
an undue burden (internal quotation marks omitted)). Dr. Carhart does not
decide to use the D&X based on a conclusion that it is best for a particular
woman. Unsubstantiated and generalized health differences which are, at
best, marginal, do not amount to a substantial obstacle to the abortion
right. Id., at 874, 876 (joint opinion of O'Connor, Kennedy, and Souter,
JJ.). It is also important to recognize that the D&X is effective only
when the fetus is close to viable or, in fact, viable; thus the State is
regulating the process at the point where its interest in life is nearing
its peak. |
| [180] | Courts are ill-equipped to evaluate the relative worth of particular surgical
procedures. The legislatures of the several States have superior factfinding
capabilities in this regard. In an earlier case, Justice O'Connor had explained
that the general rule extends to abortion cases, writing that the Court
is not suited to be "the Nation's ex officio medical board with powers
to approve or disapprove medical and operative practices and standards throughout
the United States." 462 U. S., at 456 (dissenting opinion) (internal
quotation marks omitted). "Irrespective of the difficulty of the task,
legislatures, with their superior factfinding capabilities, are certainly
better able to make the necessary judgments than are courts." Id.,
at 456, n. 4. Nebraska's judgment here must stand. |
| [181] | In deferring to the physician's judgment, the Court turns back to cases
decided in the wake of Roe, cases which gave a physician's treatment decisions
controlling weight. Before it was repudiated by Casey, the approach of deferring
to physicians had reached its apex in Akron, supra, where the Court held
an informed consent requirement was unconstitutional. The law challenged
in Akron required the abortionist to inform the woman of the status of her
pregnancy, the development of her fetus, the date of possible viability,
the physical and emotional complications that may result from an abortion,
and the availability of agencies to provide assistance and information.
Id., at 442. The physician was also required to advise the woman of the
risks associated with the abortion technique to be employed and other information.
Ibid. The law was invalidated based on the physician's right to practice
medicine in the way he or she saw fit; for, according to the Akron Court,
"[i]t remains primarily the responsibility of the physician to ensure
that appropriate information is conveyed to his patient, depending on her
particular circumstances." Id., at 443. Dispositive for the Court was
that the law was an "intrusion upon the discretion of the pregnant
woman's physician." Id., at 445. The physician was placed in an "undesired
and uncomfortable straitjacket." Ibid. (internal quotation marks omitted).
The Court's decision today echoes the Akron Court's deference to a physician's
right to practice medicine in the way he sees fit. |
| [182] | The Court, of course, does not wish to cite Akron; yet the Court's holding
is indistinguishable from the reasoning in Akron that Casey repudiated.
No doubt exists that today's holding is based on a physician-first view
which finds its primary support in that now-discredited case. Rather than
exalting the right of a physician to practice medicine with unfettered discretion,
Casey recognized: "Whatever constitutional status the doctor-patient
relation may have as a general matter, in the present context it is derivative
of the woman's position." 505 U. S., at 884 (joint opinion of O'Connor,
Kennedy, and Souter, JJ.). Casey discussed the informed consent requirement
struck down in Akron and held Akron was wrong. The doctor-patient relation
was only "entitled to the same solicitude it receives in other contexts."
505 U. S., at 884. The standard of medical practice cannot depend on the
individual views of Dr. Carhart and his supporters. The question here is
whether there was substantial and objective medical evidence to demonstrate
the State had considerable support for its conclusion that the ban created
a substantial risk to no woman's health. Casey recognized the point, holding
the physician's ability to practice medicine was "subject to reasonable
... regulation by the State" and would receive the "same solicitude
it receives in other contexts." Id., at 884 (joint opinion of O'Connor,
Kennedy, and Souter, JJ.). In other contexts, the State is entitled to make
judgments where high medical authority is in disagreement. |
| [183] | The Court fails to acknowledge substantial authority allowing the State
to take sides in a medical debate, even when fundamental liberty interests
are at stake and even when leading members of the profession disagree with
the conclusions drawn by the legislature. In Kansas v. Hendricks, 521 U.
S. 346 (1997), we held that disagreements among medical professionals "do
not tie the State's hands in setting the bounds of ... laws. In fact, it
is precisely where such disagreement exists that legislatures have been
afforded the widest latitude." Id., at 360, n. 3. Instead, courts must
exercise caution (rather than require deference to the physician's treatment
decision) when medical uncertainty is present. Ibid. ("[W]hen a legislature
`undertakes to act in areas fraught with medical and scientific uncertainties,
legislative options must be especially broad and courts should be cautious
not to rewrite legislation' ") (quoting Jones v. United States, 463
U. S. 354, 370 (1983)); see also Collins v. Texas, 223 U. S. 288, 297-298
(1912) (Holmes, J.) (declaring the "right of the state to adopt a policy
even upon medical matters concerning which there is difference of opinion
and dispute"); Lambert v. Yellowley, 272 U. S. 581, 596-597 (1926)
(rejecting claim of distinguished physician because "[h]igh medical
authority being in conflict ... , it would, indeed, be strange if Congress
lacked the power [to act]"); Marshall v. United States, 414 U. S. 417,
427 (1974) (recognizing "there is no agreement among members of the
medical profession" (internal quotation marks omitted)); United States
v. Rutherford, 442 U. S. 544 (1979) (discussing regulatory approval process
for certain drugs). |
| [184] | Instructive is Jacobson v. Massachusetts, 197 U. S. 11 (1905), where the
defendant was convicted because he refused to undergo a smallpox vaccination.
The defendant claimed the mandatory vaccination violated his liberty to
"care for his own body and health in such way as to him seems best."
Id., at 26. He offered to prove that members of the medical profession took
the position that the vaccination was of no value and, in fact, was harmful.
Id., at 30. The Court rejected the claim, establishing beyond doubt the
right of the legislature to resolve matters upon which physicians disagreed: |
| [185] | "Those offers [of proof by the defendant] in the main seem to have
had no purpose except to state the general theory of those of the medical
profession who attach little or no value to vaccination as a means of preventing
the spread of smallpox, or who think that vaccination causes other diseases
of the body. What everybody knows the court must know, and therefore the
state court judicially knew, as this court knows, that an opposite theory
accords with the common belief, and is maintained by high medical authority.
We must assume that, when the statute in question was passed, the legislature
of Massachusetts was not unaware of these opposing theories, and was compelled,
of necessity, to choose between them. It was not compelled to commit a matter
involving the public health and safety to the final decision of a court
or jury. It is no part of the function of a court or a jury to determine
which one of two modes was likely to be the most effective for the protection
of the public against disease. That was for the legislative department to
determine in the light of all the information it had or could obtain. It
could not properly abdicate its function to guard the public health and
safety." Ibid. |
| [186] | The Jacobson Court quoted with approval a recent state-court decision
which observed, in words having full application today: |
| [187] | "The fact that the belief is not universal [in the medical community]
is not controlling, for there is scarcely any belief that is accepted by
everyone. The possibility that the belief may be wrong, and that science
may yet show it to be wrong, is not conclusive; for the legislature has
the right to pass laws which, according to common belief of the people,
are adapted to [address medical matters]. In a free country, where government
is by the people, through their chosen representatives, practical legislation
admits of no other standard of action.' " Id., at 35 (quoting Viemester
v. White, 179 N. Y. 235, 241, 72 N. E. 97, 99 (1904)). |
| [188] | Justice O'Connor assures the people of Nebraska they are free to redraft
the law to include an exception permitting the D&X to be performed when
"the procedure, in appropriate medical judgment, is necessary to preserve
the health of the mother." Ante, at 5. The assurance is meaningless.
She has joined an opinion which accepts that Dr. Carhart exercises "appropriate
medical judgment" in using the D&X for every patient in every procedure,
regardless of indications, after 15 weeks' gestation. Ante, at 18-19 (requiring
any health exception to "tolerate responsible differences of medical
opinion" which "are present here."). A ban which depends
on the "appropriate medical judgment" of Dr. Carhart is no ban
at all. He will be unaffected by any new legislation. This, of course, is
the vice of a health exception resting in the physician's discretion. |
| [189] | In light of divided medical opinion on the propriety of the partial-birth
abortion technique (both in terms of physical safety and ethical practice)
and the vital interests asserted by Nebraska in its law, one is left to
ask what the first Justice Harlan asked: "Upon what sound principles
as to the relations existing between the different departments of government
can the court review this action of the legislature?" Jacobson, supra,
at 31. The answer is none. |
| [190] | III. |
| [191] | The Court's next holding is that Nebraska's ban forbids both the D&X
procedure and the more common D&E procedure. In so ruling the Court
misapplies settled doctrines of statutory construction and contradicts Casey's
premise that the States have a vital constitutional position in the abortion
debate. I agree with the careful statutory analysis conducted by Justice
Thomas, post, at 10-27. Like the ruling requiring a physician veto, requiring
a State to meet unattainable standards of statutory draftsmanship in order
to have its voice heard on this grave and difficult subject is no different
from foreclosing state participation altogether. |
| [192] | Nebraska's statute provides: |
| [193] | "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). |
| [194] | The statute defines "partial birth abortion" as |
| [195] | "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). |
| [196] | It further defines "partially delivers vaginally a living unborn
child before killing the unborn child" to mean |
| [197] | "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. |
| [198] | The text demonstrates the law applies only to the D&X procedure. Nebraska's
intention is demonstrated at three points in the statutory language: references
to "partial-birth abortion" and to the "delivery" of
a fetus; and the requirement that the delivery occur "before"
the performance of the death-causing procedure. |
| [199] | The term "partial-birth abortion" means an abortion performed
using the D&X method as described above. The Court of Appeals acknowledged
the term "is commonly understood to refer to a particular procedure
known as intact dilation and extraction (D&X)." Little Rock Family
Planning Servs. v. Jegley, 192 F. 3d 794, 795 (CA8 1999). Dr. Carhart's
own lead expert, Dr. Phillip Stubblefield, prefaced his description of the
D&X procedure by describing it as the procedure "which, in the
lay press, has been called a partial-birth abortion." App. 271-272.
And the AMA has declared: "The `partial birth abortion' legislation
is by its very name aimed exclusively [at the D&X.] There is no other
abortion procedure which could be confused with that description."
AMA Factsheet 3. A commonsense understanding of the statute's reference
to "partial-birth abortion" demonstrates its intended reach and
provides all citizens the fair warning required by the law. McBoyle v. United
States, 283 U. S. 25, 27 (1931). |
| [200] | The statute's intended scope is demonstrated by its requirement that the
banned procedure include a partial "delivery" of the fetus into
the vagina and the completion of a "delivery" at the end of the
procedure. Only removal of an intact fetus can be described as a "delivery"
of a fetus and only the D&X involves an intact fetus. In a D&E,
portions of the fetus are pulled into the vagina with the intention of dismembering
the fetus by using the traction at the opening between the uterus and vagina.
This cannot be considered a delivery of a portion of a fetus. In Dr. Carhart's
own words, the D&E leaves the abortionist with a "tray full of
pieces," App. 125, at the end of the procedure. Even if it could be
argued, as the majority does, ante, at 25-26, that dragging a portion of
an intact fetus into the vagina as the first step of a D&E is a delivery
of that portion of an intact fetus, the D&E still does not involve "completing
the delivery" of an intact fetus. Whatever the statutory term "completing
the delivery" of an unborn child means, it cannot mean, as the Court
would have it, placing fetal remains on a tray. See Planned Parenthood of
Wis. v. Doyle, 9 F. Supp. 2d 1033, 1041 (WD Wis. 1998) (the statute is "readily
applied to the partial delivery of an intact child but hardly applicable
to the delivery of dismembered body parts"). |
| [201] | Medical descriptions of the abortion procedures confirm the point, for
it is only the description of the D&X that invokes the word "delivery."
App. 600. The United States, as amicus, cannot bring itself to describe
the D&E as involving a "delivery," instead substituting the
word "emerges" to describe how the fetus is brought into the vagina
in a D&E. Brief for United States as Amicus Curiae 10. The Court, in
a similar admission, uses the words "a physician pulling" a portion
of a fetus, ante, at 20, rather than a "physician delivering"
a portion of a fetus; yet only a procedure involving a delivery is banned
by the law. Of all the definitions of "delivery" provided by the
Court, ante, at 25-26, not one supports (or, more important for statutory
construction purposes, requires), the conclusion that the statutory term
"completing the delivery" refers to the placement of dismembered
body parts on a tray rather than the removal of an intact fetus from the
woman's body. |
| [202] | The operation of Nebraska's law is further defined by the requirement
that the fetus be partially delivered into the vagina "before"
the abortionist kills it. The partial delivery must be undertaken "for
the purpose of performing a procedure that the person ... knows will kill
the unborn child." Neb. Rev. Stat. Ann. §28-326(9) (Supp. 1999). The
law is most naturally read to require the death of the fetus to take place
in two steps: First the fetus must be partially delivered into the vagina
and then the defendant must perform a death-causing procedure. In a D&E,
forcing the fetus into the vagina (the pulling of extremities off the body
in the process of extracting the body parts from the uterus into the vagina)
is also the procedure that kills the fetus. Richmond Medical Center for
Women v. Gilmore, 144 F. 3d, at 330 (order of Luttig, J.). In a D&X,
the fetus is partially delivered into the vagina before a separate procedure
(the so-called "reduction procedure") is performed in order to
kill the fetus. |
| [203] | The majority rejects this argument based on its conclusion that the word
"procedure" must "refer to an entire abortion procedure"
each time it is used. Ante, at 25. This interpretation makes no sense. It
would require us to conclude that the Nebraska Legislature considered the
"entire abortion procedure" to take place after the abortionist
has already delivered into the vagina a living unborn child, or a substantial
portion thereof. Neb. Rev. Stat. Ann. §28-326(9) (Supp. 1999). All medical
authorities agree, however, that the entire abortion procedure begins several
days before this stage, with the dilation of the cervix. The majority asks
us, in effect, to replace the words "for the purpose of performing"
with the words "in the course of performing" in the portion of
§28-326(9) quoted in the preceding paragraph. The reference to "procedure"
refers to the separate death-causing procedure that is unique to the D&X. |
| [204] | In light of the statutory text, the commonsense understanding must be
that the statute covers only the D&X. See Broadrick v. Oklahoma, 413
U. S. 601, 698 (1973). The AMA does not disagree. It writes: "The partial
birth abortion legislation is by its very name aimed exclusively at a procedure
by which a living fetus is intentionally and deliberately given partial
birth and delivered for the purpose of killing it. There is no other abortion
procedure which could be confused with that description." AMA Factsheet
3 (internal quotation marks omitted). Casey disavows strict scrutiny review;
and Nebraska must be afforded leeway when attempting to regulate the medical
profession. See Kansas v. Hendricks, 521 U. S., at 359 ("[W]e have
traditionally left to legislators the task of defining terms of a medical
nature that have legal significance"). To hold the statute covers the
D&E, the Court must disagree with the AMA and disregard the known intent
of the legislature, adequately expressed in the statute. |
| [205] | Strained statutory constructions in abortion cases are not new, for Justice
O'Connor identified years ago "an unprecedented canon of construction
under which in cases involving abortion, a permissible reading of a statute
is to be avoided at all costs." Thornburgh v. American College of Obstetricians
and Gynecologists, 476 U. S. 747, 829 (1986) (dissenting opinion) (internal
quotation marks omitted). Casey banished this doctrine from our jurisprudence;
yet the Court today reinvigorates it and, in the process, ignores its obligation
to interpret the law in a manner to validate it, not render it void. E.g.,
Johnson v. Robison, 415 U. S. 361, 366-367 (1974); Edward J. DeBartolo Corp.
v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568,
575 (1988). Avoidance of unconstitutional constructions is discussed only
in two sentences of the Court's analysis and dismissed as inapplicable because
the statute is not susceptible to the construction offered by the Nebraska
Attorney General. Ante, at 26. For the reasons here discussed, the statute
is susceptible to the construction; and the Court is required to adopt it. |
| [206] | The Court and Justice O'Connor seek to shield themselves from criticism
by citing the interpretations of the partial-birth abortion statutes offered
by some other federal courts. Ante, at 23. On this issue of nationwide importance,
these courts have no special competence; and of appellate courts to consider
similar statutes, a majority have, in contrast to the Court, declared that
the law could be interpreted to cover only the D&E. See Hope Clinic,
195 F. 3d, at 865-871; Richmond Medical Center, supra, at 330-332 (order
of Luttig, J.). Thirty States have enacted similar laws. It is an abdication
of responsibility for the Court to suggest its hands are tied by decisions
which paid scant attention to Casey's recognition of the State's authority
and misapplied the doctrine of construing statutes to avoid constitutional
difficulty. Further, the leading case describing the deference argument,
Frisby v. Schultz, 487 U. S. 474, 483 (1988), declined to defer to a lower
court construction of the state statute at issue in the case. As Frisby
observed, the "lower courts ran afoul of the well-established principle
that statutes will be interpreted to avoid constitutional difficulties."
See also Webster v. Reproductive Health Services, 492 U. S. 490, 514 (1989)
(opinion of Rehnquist, C. J.); id., at 525 (O'Connor, J., concurring in
part and concurring in judgment). |
| [207] | The majority and, even more so, the concurring opinion by Justice O'Connor,
ignore the settled rule against deciding unnecessary constitutional questions.
The State of Nebraska conceded, under its understanding of Casey, that if
this law must be interpreted to bar D&E as well as D&X it is unconstitutional.
Since the majority concludes this is indeed the case, that should have been
the end of the matter. Yet the Court and Justice O'Connor go much farther.
They conclude that the statute requires a health exception which, for all
practical purposes and certainly in the circumstances of this case, allows
the physician to make the determination in his own professional judgment.
This is an immense constitutional holding. It is unnecessary; and, for the
reasons I have sought to explain, it is incorrect. While it is not clear
which of the two halves of the majority opinion is dictum, both are wrong. |
| [208] | The United States District Court in this case leaped to prevent the law
from being enforced, granting an injunction before it was applied or interpreted
by Nebraska. Cf. Hill v. Colorado, ante, p. ___. In so doing, the court
excluded from the abortion debate not just the Nebraska legislative branch
but the State's executive and judiciary as well. The law was enjoined before
the chief law enforcement officer of the State, its Attorney General, had
any opportunity to interpret it. The federal court then ignored the representations
made by that officer during this litigation. In like manner, Nebraska's
courts will be given no opportunity to define the contours of the law, although
by all indications those courts would give the statute a more narrow construction
than the one so eagerly adopted by the Court today. E.g., Stenberg v. Moore,
258 Neb. 199, 206, 602 N. W. 2d 465, 472 (1995). Thus the court denied each
branch of Nebraska's government any role in the interpretation or enforcement
of the statute. This cannot be what Casey meant when it said we would be
more solicitous of state attempts to vindicate interests related to abortion.
Casey did not assume this state of affairs. |
| [209] | IV. |
| [210] | Ignoring substantial medical and ethical opinion, the Court substitutes
its own judgment for the judgment of Nebraska and some 30 other States and
sweeps the law away. The Court's holding stems from misunderstanding the
record, misinterpretation of Casey, outright refusal to respect the law
of a State, and statutory construction in conflict with settled rules. The
decision nullifies a law expressing the will of the people of Nebraska that
medical procedures must be governed by moral principles having their foundation
in the intrinsic value of human life, including life of the unborn. Through
their law the people of Nebraska were forthright in confronting an issue
of immense moral consequence. The State chose to forbid a procedure many
decent and civilized people find so abhorrent as to be among the most serious
of crimes against human life, while the State still protected the woman's
autonomous right of choice as reaffirmed in Casey. The Court closes its
eyes to these profound concerns. |
| [211] | From the decision, the reasoning, and the judgment, I dissent. |
| [212] | Thomas, J., dissenting |
| [213] | Justice Thomas, with whom The Chief Justice and Justice Scalia join, dissenting. |
| [214] | In 1973, this Court struck down an Act of the Texas Legislature that had
been in effect since 1857, thereby rendering unconstitutional abortion statutes
in dozens of States. Roe v. Wade, 410 U. S. 113, 119. As some of my colleagues
on the Court, past and present, ably demonstrated, that decision was grievously
wrong. See, e.g., Doe v. Bolton, 410 U. S. 179, 221-223 (1973) (White, J.,
dissenting); Roe v. Wade, supra, at 171-178 (Rehnquist, J., dissenting).
Abortion is a unique act, in which a woman's exercise of control over her
own body ends, depending on one's view, human life or potential human life.
Nothing in our Federal Constitution deprives the people of this country
of the right to determine whether the consequences of abortion to the fetus
and to society outweigh the burden of an unwanted pregnancy on the mother.
Although a State may permit abortion, nothing in the Constitution dictates
that a State must do so. |
| [215] | In the years following Roe, this Court applied, and, worse, extended,
that decision to strike down numerous state statutes that purportedly threatened
a woman's ability to obtain an abortion. The Court voided parental consent
laws, see Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 75
(1976), legislation requiring that second-trimester abortions take place
in hospitals, see Akron v. Akron Center for Reproductive Health, Inc., 462
U. S. 416, 431 (1983), and even a requirement that both parents of a minor
be notified before their child has an abortion, see Hodgson v. Minnesota,
497 U. S. 417, 455 (1990). It was only a slight exaggeration when this Court
described, in 1976, a right to abortion "without interference from
the State." Danforth, supra, at 61. The Court's expansive application
of Roe in this period, even more than Roe itself, was fairly described as
the "unrestrained imposition of [the Court's] own, extraconstitutional
value preferences" on the American people. Thornburgh v. American College
of Obstetricians and Gynecologists, 476 U. S. 747, 794 (1986) (White, J.,
dissenting). |
| [216] | It appeared that this era of Court-mandated abortion on demand had come
to an end, first with our decision in Webster v. Reproductive Health Services,
492 U. S. 490 (1989), see id., at 557 (Blackmun, J., concurring in part
and dissenting in part) (lamenting that the plurality had "discard[ed]"
Roe), and then finally (or so we were told) in our decision in Planned Parenthood
of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). Although in Casey the
separate opinions of The Chief Justice and Justice Scalia urging the Court
to overrule Roe did not command a majority, seven Members of that Court,
including six Members sitting today, acknowledged that States have a legitimate
role in regulating abortion and recognized the States' interest in respecting
fetal life at all stages of development. See 505 U. S., at 877 (joint opinion
of O'Connor, Kennedy, and Souter, JJ.); id., at 944 (Rehnquist, C. J., joined
by White, Scalia, Thomas, JJ., concurring in judgment in part and dissenting
in part); id., at 979 (Scalia, J., joined by Rehnquist, C. J., and White
and Thomas, JJ., concurring in judgment in part and dissenting in part).
The joint opinion authored by Justices O'Connor, Kennedy, and Souter concluded
that prior case law "went too far" in "undervalu[ing] the
State's interest in potential life" and in "striking down ...
some abortion regulations which in no real sense deprived women of the ultimate
decision." Id., at 875.*fn1 Roe and
subsequent cases, according to the joint opinion, had wrongly "treat[ed]
all governmental attempts to influence a woman's decision on behalf of the
potential life within her as unwarranted," a treatment that was "incompatible
with the recognition that there is a substantial state interest in potential
life throughout pregnancy." Id., at 876. Accordingly, the joint opinion
held that so long as state regulation of abortion furthers legitimate interests
-- that is, interests not designed to strike at the right itself -- the
regulation is invalid only if it imposes an undue burden on a woman's ability
to obtain an abortion, meaning that it places a substantial obstacle in
the woman's path. Id., at 874, 877. |
| [217] | My views on the merits of the Casey joint opinion have been fully articulated
by others. Id., at 944 (Rehnquist, C. J., concurring in judgment in part
and dissenting in part); id., at 979 (Scalia, J., concurring in judgment
in part and dissenting in part). I will not restate those views here, except
to note that the Casey joint opinion was constructed by its authors out
of whole cloth. The standard set forth in the Casey joint opinion has no
historical or doctrinal pedigree. The standard is a product of its authors'
own philosophical views about abortion, and it should go without saying
that it has no origins in or relationship to the Constitution and is, consequently,
as illegitimate as the standard it purported to replace. Even assuming,
however, as I will for the remainder of this dissent, that Casey's fabricated
undue-burden standard merits adherence (which it does not), today's decision
is extraordinary. Today, the Court inexplicably holds that the States cannot
constitutionally prohibit a method of abortion that millions find hard to
distinguish from infanticide and that the Court hesitates even to describe.
Ante, at 4. This holding cannot be reconciled with Casey's undue-burden
standard, as that standard was explained to us by the authors of the joint
opinion, and the majority hardly pretends otherwise. In striking down this
statute -- which expresses a profound and legitimate respect for fetal life
and which leaves unimpeded several other safe forms of abortion -- the majority
opinion gives the lie to the promise of Casey that regulations that do no
more than "express profound respect for the life of the unborn are
permitted, if they are not a substantial obstacle to the woman's exercise
of the right to choose" whether or not to have an abortion. 505 U.
S., at 877. Today's decision is so obviously irreconcilable with Casey's
explication of what its undue-burden standard requires, let alone the Constitution,
that it should be seen for what it is, a reinstitution of the pre-Webster
abortion-on-demand era in which the mere invocation of "abortion rights"
trumps any contrary societal interest. If this statute is unconstitutional
under Casey, then Casey meant nothing at all, and the Court should candidly
admit it. |
| [218] | To reach its decision, the majority must take a series of indefensible
steps. The majority must first disregard the principles that this Court
follows in every context but abortion: We interpret statutes according to
their plain meaning and we do not strike down statutes susceptible of a
narrowing construction. The majority also must disregard the very constitutional
standard it purports to employ, and then displace the considered judgment
of the people of Nebraska and 29 other States. The majority's decision is
lamentable, because of the result the majority reaches, the illogical steps
the majority takes to reach it, and because it portends a return to an era
I had thought we had at last abandoned. |
| [219] | I. |
| [220] | In the almost 30 years since Roe, this Court has never described the various
methods of aborting a second- or third-trimester fetus. From reading the
majority's sanitized description, one would think that this case involves
state regulation of a widely accepted routine medical procedure. Nothing
could be further from the truth. The most widely used method of abortion
during this stage of pregnancy is so gruesome that its use can be traumatic
even for the physicians and medical staff who perform it. See App. 656 (testimony
of Dr. Boehm); W. Hern, Abortion Practice 134 (1990). And the particular
procedure at issue in this case, "partial birth abortion," so
closely borders on infanticide that 30 States have attempted to ban it.
I will begin with a discussion of the methods of abortion available to women
late in their pregnancies before addressing the statutory and constitutional
questions involved.*fn2 |
| [221] | 1. The primary form of abortion used at or after 16 weeks' gestation is
known as "dilation and evacuation" or "D&E." 11
F. Supp. 2d 1099, 1103, 1129 (Neb. 1998). When performed during that stage
of pregnancy, the D&E procedure requires the physician to dilate the
woman's cervix and then extract the fetus from her uterus with forceps.
Id., at 1103; App. 490 (American Medical Association (AMA), Report of the
Board of Trustees on Late-Term Abortion). Because of the fetus' size at
this stage, the physician generally removes the fetus by dismembering the
fetus one piece at a time.*fn3 11 F. Supp.
2d, at 1103-1104. The doctor grabs a fetal extremity, such as an arm or
a leg, with forceps and "pulls it through the cervical os ... tearing
... fetal parts from the fetal body ... by means of traction." Id.,
at 1104. See App. 55 (testimony of Dr. Carhart). In other words, the physician
will grasp the fetal parts and "basically tear off pieces of the fetus
and pull them out." Id., at 267 (testimony of Dr. Stubblefield). See
also id., at 149 (testimony of Dr. Hodgson) ("[Y]ou grasp the fetal
parts, and you often don't know what they are, and you try to pull it down,
and its ... simply all there is to it"). The fetus will die from blood
loss, either because the physician has separated the umbilical cord prior
to beginning the procedure or because the fetus loses blood as its limbs
are removed. Id., at 62-64 (testimony of Dr. Carhart); id., at 151 (testimony
of Dr. Hodgson).*fn4 When all of the fetus'
limbs have been removed and only the head is left in utero, the physician
will then collapse the skull and pull it through the cervical canal. Id.,
at 106 (testimony of Dr. Carhart); id., at 297 (testimony of Dr. Stubblefield);
Causeway Medical Suite v. Foster, 43 F. Supp. 2d 604, 608 (ED La. 1999).
At the end of the procedure, the physician is left, in respondent's words,
with a "tray full of pieces." App. 125 (testimony of Dr. Carhart). |
| [222] | 2. Some abortions after the 15th week are performed using a method of
abortion known as induction. 11 F. Supp. 2d, at 1108; App. 492 AMA, Report
of the Board of Trustees on Late-Term Abortion). In an induction procedure,
the amniotic sac is injected with an abortifacient such as a saline solution
or a solution known as a "prostaglandin." 11 F. Supp. 2d, at 1108.
Uterine contractions typically follow, causing the fetus to be expelled.
Ibid. |
| [223] | 3. A third form of abortion for use during or after 16 weeks' gestation
is referred to by some medical professionals as "intact D&E."
There are two variations of this method, both of which require the physician
to dilate the woman's cervix. Gynecologic, Obstetric, and Related Surgery
1043 (D. Nichols & D. Clarke-Pearson eds., 2d ed. 2000); App. 271 (testimony
of Dr. Stubblefield). The first variation is used only in vertex presentations,
that is, when the fetal head is presented first. To perform a vertex-presentation
intact D&E, the doctor will insert an instrument into the fetus' skull
while the fetus is still in utero and remove the brain and other intracranial
contents. 11 F. Supp. 2d, at 1111; Gynecologic, Obstetric, and Related Surgery,
supra, at 1043; App. 271 (testimony of Dr. Stubblefield). When the fetal
skull collapses, the physician will remove the fetus. |
| [224] | The second variation of intact D&E is the procedure commonly known
as "partial birth abortion."*fn5
11 F. Supp. 2d, at 1106; Gynecologic, Obstetric, and Related Surgery, supra,
at 1043; App. 271 (testimony of Dr. Stubblefield). This procedure, which
is used only rarely, is performed on mid- to late-second-trimester (and
sometimes third-trimester) fetuses.*fn6
Although there are variations, it is generally performed as follows: After
dilating the cervix, the physician will grab the fetus by its feet and pull
the fetal body out of the uterus into the vaginal cavity. 11 F. Supp. 2d,
at 1106. At this stage of development, the head is the largest part of the
body. Assuming the physician has performed the dilation procedure correctly,
the head will be held inside the uterus by the woman's cervix. Ibid; H.
R. 1833 Hearing 8. While the fetus is stuck in this position, dangling partly
out of the woman's body, and just a few inches from a completed birth, the
physician uses an instrument such as a pair of scissors to tear or perforate
the skull. 11 F. Supp. 2d, at 1106; App. 664 (testimony of Dr. Boehm); 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., 45 (1995) (hereinafter S. 6 and H. R. 929 Joint
Hearing). The physician will then either crush the skull or will use a vacuum
to remove the brain and other intracranial contents from the fetal skull,
collapse the fetus' head, and pull the fetus from the uterus. 11 F. Supp.
2d, at 1106.*fn7 |
| [225] | Use of the partial birth abortion procedure achieved prominence as a national
issue after it was publicly described by Dr. Martin Haskell, in a paper
entitled "Dilation and Extraction for Late Second Trimester Abortion"
at the National Abortion Federation's September 1992 Risk Management Seminar.
In that paper, Dr. Haskell described his version of the procedure as follows: |
| [226] | "With a lower [fetal] extremity in the vagina, the surgeon uses his
fingers to deliver the opposite lower extremity, then the torso, the shoulders
and the upper extremities. |
| [227] | "The skull lodges at the internal cervical os. Usually there is not
enough dilation for it to pass through. The fetus is oriented dorsum or
spine up. |
| [228] | "At this point, the right-handed surgeon slides the fingers of the
left hand along the back of the fetus and `hooks' the shoulders of the fetus
with the index and ring fingers (palm down). |
| [229] | "[T]he surgeon takes a pair of blunt curved Metzenbaum scissors in
the right hand. He carefully advances the tip, curved down, along the spine
and under his middle finger until he feels it contact the base of the skull
under the tip of his middle finger. |
| [230] | "[T]he surgeon then forces the scissors into the base of the skull
or into the foramen magnum. Having safely entered the skull, he spreads
the scissors to enlarge the opening. |
| [231] | "The surgeon removes the scissors and introduces a suction catheter
into this hole and evacuates the skull contents. With the catheter still
in place, he applies traction to the fetus, removing it completely from
the patient." H. R. 1833 Hearing 3, 8-9. |
| [232] | In cases in which the physician inadvertently dilates the woman to too
great a degree, the physician will have to hold the fetus inside the woman
so that he can perform the procedure. Id., at 80 (statement of Pamela Smith,
M. D.) ("In these procedures, one basically relies on cervical entrapment
of the head, along with a firm grip, to help keep the baby in place while
the practitioner plunges a pair of scissors into the base of the baby's
skull"). See also S. 6 and H. R. 929 Joint Hearing 45 ("I could
put dilapan in for four or five days and say I'm doing a D&E procedure
and the fetus could just fall out. But that's not really the point. The
point here is you're attempting to do an abortion ... . Not to see how do
I manipulate the situation so that I get a live birth instead") (quoting
Dr. Haskell). |
| [233] | II. |
| [234] | Nebraska, along with 29 other States, has attempted to ban the partial
birth abortion procedure. Although the Nebraska statute purports to prohibit
only "partial birth abortion," a phrase which is commonly used,
as I mentioned, to refer to the breech extraction version of intact D&E,
the majority concludes that this statute could also be read in some future
case to prohibit ordinary D&E, the first procedure described above.
According to the majority, such an application would pose a substantial
obstacle to some women seeking abortions and, therefore, the statute is
unconstitutional. The majority errs with its very first step. I think it
is clear that the Nebraska statute does not prohibit the D&E procedure.
The Nebraska partial birth abortion statute at issue in this case reads
as follows: |
| [235] | "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). |
| [236] | "Partial birth abortion" is defined in the statute as |
| [237] | "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. For purposes of this subdivision, the
term partially delivers vaginally a living unborn child before killing the
unborn child means 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." §28-326(9). |
| [238] | A. |
| [239] | Starting with the statutory definition of "partial birth abortion,"
I think it highly doubtful that the statute could be applied to ordinary
D&E. First, the Nebraska statute applies only if the physician "partially
delivers vaginally a living unborn child," which phrase is defined
to mean "deliberately and intentionally delivering into the vagina
a living unborn child, or a substantial portion thereof." §28-326(9)
(emphases added). When read in context, the term "partially delivers"
cannot be fairly interpreted to include removing pieces of an unborn child
from the uterus one at a time. |
| [240] | The word "deliver," particularly delivery of an "unborn
child," refers to the process of "assist[ing] in giving birth,"
which suggests removing an intact unborn child from the womb, rather than
pieces of a child. See Webster's Ninth New Collegiate Dictionary 336 (1991)
(defining "deliver" as "to assist in giving birth; to aid
in the birth of"); Stedman's Medical Dictionary 409 (26th ed. 1995)
("To assist a woman in childbirth"). Without question, one does
not "deliver" a child when one removes the child from the uterus
piece by piece, as in a D&E. Rather, in the words of respondent and
his experts, one "remove[s]" or "dismember[s]" the child
in a D&E. App. 45, 55 (testimony of Dr. Carhart) (referring to the act
of removing the fetus in a D&E); id., at 150 (testimony of Dr. Hodgson)
(same); id., at 267 (testimony of Dr. Stubblefield) (physician "dismember[s]"
the fetus). See also H. R. 1833 Hearing 3, 8 (Dr. Haskell describing "delivery"
of part of the fetus during a D&X). The majority cites sources using
the terms "deliver" and "delivery" to refer to removal
of the fetus and the placenta during birth. But these sources also presume
an intact fetus, rather than dismembered fetal parts. See Obstetrics: Normal
& Problem Pregnancies 388 (S. Gabbe, J. Niebyl, & J. Simpson eds.
3d ed. 1996) ("After delivery [of infant and placenta], the placenta,
cord, and membranes should be examined"); 4 Oxford English Dictionary
421, 422 (2d ed. 1989) ("To disburden (a woman) of the foetus, to bring
to childbirth"); B. Maloy, Medical Dictionary for Lawyers 221 (2d ed.
1989) ("To aid in the process of childbirth; to bring forth; to deliver
the fetus, placenta"). The majority has pointed to no source in which
"delivery" is used to refer to removal of first a fetal arm, then
a leg, then the torso, etc. In fact, even the majority describes the D&E
procedure without using the word "deliver" to refer to the removal
of fetal tissue from the uterus. See ante, at 20 ("pulling a `substantial
portion' of a still living fetus") (emphasis added); ibid. ("portion
of a living fetus has been pulled into the vagina") (emphasis added).
No one, including the majority, understands the act of pulling off a part
of a fetus to be a "delivery." |
| [241] | To make the statute's meaning even more clear, the statute applies only
if the physician "partially delivers vaginally a living unborn child
before killing the unborn child and completing the delivery." The statute
defines this phrase to mean that the physician must complete the delivery
"for the purpose of performing a procedure" that will kill the
unborn child. It is clear from these phrases that the procedure that kills
the fetus must be subsequent to, and therefore separate from, the "partia[l]
deliver[y]" or the "deliver[y] into the vagina" of "a
living unborn child or substantial portion thereof." In other words,
even if one assumes, arguendo, that dismemberment -- the act of grasping
a fetal arm or leg and pulling until it comes off, leaving the remaining
part of the fetal body still in the uterus -- is a kind of "delivery,"
it does not take place "before" the death-causing procedure or
"for the purpose of performing" the death-causing procedure; it
is the death-causing procedure. Under the majority's view, D&E is covered
by the statute because when the doctor pulls on a fetal foot until it tears
off he has "delivered" a substantial portion of the unborn child
and has performed a procedure known to cause death. But, significantly,
the physician has not "delivered" the child before performing
the death-causing procedure or "for the purpose of" performing
the death-causing procedure; the dismemberment "delivery" is itself
the act that causes the fetus' death.*fn8 |
| [242] | Moreover, even if removal of a fetal foot or arm from the uterus incidental
to severing it from the rest of the fetal body could amount to delivery
before, or for the purpose of, performing a death-causing procedure, the
delivery would not be of an "unborn child, or a substantial portion
thereof." And even supposing that a fetal foot or arm could conceivably
be a "substantial portion" of an unborn child, both the common
understanding of "partial birth abortion" and the principle that
statutes will be interpreted to avoid constitutional difficulties would
require one to read "substantial" otherwise. See infra, at 18-20. |
| [243] | B. |
| [244] | Although I think that the text of §28-326(9) forecloses any application
of the Nebraska statute to the D&E procedure, even if there were any
ambiguity, the ambiguity would be conclusively resolved by reading the definition
in light of the fact that the Nebraska statute, by its own terms, applies
only to "partial birth abortion," §28-328(1). By ordinary rules
of statutory interpretation, we should resolve any ambiguity in the specific
statutory definition to comport with the common understanding of "partial
birth abortion," for that term itself, no less than the specific definition,
is part of the statute. United States v. Morton, 467 U. S. 822, 828 (1984)
("We do not ... construe statutory phrases in isolation; we read statutes
as a whole").*fn9 |
| [245] | "Partial birth abortion" is a term that has been used by a majority
of state legislatures, the United States Congress, medical journals, physicians,
reporters, even judges, and has never, as far as I am aware, been used to
refer to the D&E procedure. The number of instances in which "partial
birth abortion" has been equated with the breech extraction form of
intact D&E (otherwise known as "D&X")*fn10
and explicitly contrasted with D&E, are numerous. I will limit myself
to just a few examples. |
| [246] | First, numerous medical authorities have equated "partial birth abortion"
with D&X. The American Medical Association ("AMA") has done
so and has recognized that the procedure is "different from other destructive
abortion techniques because the fetus ... is killed outside of the womb."
AMA Board of Trustees Factsheet on H. R. 1122 (June 1997), in App. to Brief
for Association of American Physicians and Surgeons et al. as Amici Curiae
1. Medical literature has also equated "partial birth abortion"
with D&X as distinguished from D&E. See Gynecologic, Obstetric,
and Related Surgery, at 1043; Sprang & Neerhof, Rationale for Banning
Abortions Late in Pregnancy, 280 JAMA 744 (Aug. 26, 1998); Bopp & Cook,
Partial Birth Abortion: The Final Frontier of Abortion Jurisprudence, 14
Issues in Law and Medicine 3 (1998). Physicians have equated "partial
birth abortion" with D&X. See Planned Parenthood v. Doyle, 44 F.
Supp. 2d 975, 999 (WD Wis. 1999) (citing testimony); Richmond Medical Center
for Women v. Gilmore, 55 F. Supp. 2d 441, 455 (ED Va. 1999) (citing testimony).
Even respondent's expert, Dr. Phillip Stubblefield, acknowledged that breech
extraction intact D&E is referred to in the lay press as "partial
birth abortion." App. 271. |
| [247] | Second, the lower courts have repeatedly acknowledged that "partial
birth abortion" is commonly understood to mean D&X. See Little
Rock Family Planning Services v. Jegley, 192 F. 3d 794, 795 (CA8 1999) ("The
term `partial-birth abortion,' ... is commonly understood to refer to a
particular procedure also known as intact dilation and extraction");
Planned Parenthood of Greater Iowa, Inc. v. Miller, 195 F. 3d 386, 387 (CA8
1999) ("The [Iowa] Act prohibits `partial-birth abortion,' a term commonly
understood to refer to a procedure called a dilation and extraction (D&X)").
The District Court in this case noted that "[p]artial-birth abortions"
are "known medically as intact dilation and extraction or D&X."
11 F. Supp. 2d, at 1121, n. 26. Even the majority notes that "partial
birth abortion" is a term "ordinarily associated with the D&X
procedure." Ante, at 24. |
| [248] | Third, the term "partial birth abortion" has been used in state
legislation on 28 occasions and by Congress twice. The term "partial
birth abortion" was adopted by Congress in both 1995 and 1997 in two
separate pieces of legislation prohibiting the procedure.*fn11
In considering the legislation, Congress conducted numerous hearings and
debates on the issue, which repeatedly described "partial birth abortion"
as a procedure distinct from D&E. The Congressional Record contained
numerous references to Dr. Haskell's procedure. See, e.g., H. R. 1833 Hearing
3, 17, 52, 77; S. 6 and H. R. 929 Joint Hearing 45. Since that time, debates
have taken place in state legislatures across the country, 30 of which have
voted to prohibit the procedure. With only two exceptions, the legislatures
that voted to ban the procedure referred to it as "partial birth abortion."*fn12
These debates also referred to Dr. Haskell's procedure and D&X. Both
the evidence before the legislators and the legislators themselves equated
"partial birth abortion" with D&X. The fact that 28 States
adopted legislation banning "partial birth abortion," defined
it in a way similar or identical to Nebraska's definition,*fn13
and, in doing so, repeatedly referred to the breech extraction form of intact
D&E and repeatedly distinguished it from ordinary D&E, makes it
inconceivable that the term "partial birth abortion" could reasonably
be interpreted to mean D&E. |
| [249] | C. |
| [250] | Were there any doubt remaining whether the statute could apply to a D&E
procedure, that doubt is no ground for invalidating the statute. Rather,
we are bound to first consider whether a construction of the statute is
fairly possible that would avoid the constitutional question. Erznoznik
v. Jacksonville, 422 U. S. 205, 216 (1975) ("[A] state statute should
not be deemed facially invalid unless it is not readily subject to a narrowing
construction by the state courts"); Frisby v. Schultz, 487 U. S. 474,
482 (1988) ("The precise scope of the ban is not further described
within the text of the ordinance, but in our view the ordinance is readily
subject to a narrowing construction that avoids constitutional difficulties").
This principle is, as Justice O'Connor has said, so "well-established"
that failure to apply is "plain error." Id., at 483. Although
our interpretation of a Nebraska law is of course not binding on Nebraska
courts, it is clear, as Erznoznik and Frisby demonstrate, that, absent a
conflicting interpretation by Nebraska (and there is none here), we should,
if the text permits, adopt such a construction. |
| [251] | The majority contends that application of the Nebraska statute to D&E
would pose constitutional difficulties because it would eliminate the most
common form of second-trimester abortions. To the extent that the majority's
contention is true, there is no doubt that the Nebraska statute is susceptible
of a narrowing construction by Nebraska courts that would preserve a physicians'
ability to perform D&E. See State v. Carpenter, 250 Neb. 427, 434, 551
N. W. 2d 518, 524 (1996) ("A penal statute must be construed so as
to meet constitutional requirements if such can reasonably be done").
For example, the statute requires that the physician "deliberately
and intentionally delive[r] into the vagina a living unborn child, or a
substantial portion thereof" before performing a death causing procedure.
The term "substantial portion" is susceptible to a narrowing construction
that would exclude the D&E procedure. One definition of the word "substantial"
is "being largely but not wholly that which is specified." Webster's
Ninth New Collegiate Dictionary, at 1176. See Pierce v. Underwood, 487 U.
S. 552, 564 (1988) (describing different meanings of the term "substantial").
In other words, "substantial" can mean "almost all"
of the thing denominated. If nothing else, a court could construe the statute
to require that the fetus be "largely, but not wholly," delivered
out of the uterus before the physician performs a procedure that he knows
will kill the unborn child. Or, as I have discussed, a court could (and
should) construe "for the purpose of performing a procedure" to
mean "for the purpose of performing a separate procedure." |
| [252] | III. |
| [253] | The majority and Justice O'Connor reject the plain language of the statutory
definition, refuse to read that definition in light of the statutory reference
to "partial birth abortion," and ignore the doctrine of constitutional
avoidance. In so doing, they offer scant statutory analysis of their own.
See ante, at 20-21 (majority opinion); cf. ante, at 22-26 (majority opinion);
ante, at 3 (O'Connor, J., concurring). In their brief analyses, the majority
and Justice O'Connor disregard all of the statutory language except for
the final definitional sentence, thereby violating the fundamental canon
of construction that statutes are to be read as a whole. United States v.
Morton, 467 U. S., at 828 ("We do not ... construe statutory phrases
in isolation; we read statutes as a whole. Thus, the words [in question]
must be read in light of the immediately following phrase") (footnote
omitted)); United States v. Heirs of Boisdoré, 8 How. 113, 122 (1849) ("In
expounding a statute, we must not be guided by a single sentence or member
of a sentence, but look to the provisions of the whole law, and to its object
and policy"); Gustafson v. Alloyd Co., 513 U. S. 561, 575 (1995) ("[A]
word is known by the company it keeps").*fn14
In lieu of analyzing the statute as a whole, the majority and Justice O'Connor
offer five principal arguments for their interpretation of the statute.
I will address them in turn. |
| [254] | First, the majority appears to accept, if only obliquely, an argument
made by respondent: If the term "partial birth abortion" refers
to only the breech extraction form of intact D&E, or D&X, the Nebraska
Legislature should have used the medical nomenclature. See ante, at 25 (noting
that the Nebraska Legislature rejected an amendment that would replace "partial
birth abortion" with "dilation and extraction"); Brief for
Respondent 4-5, 24. |
| [255] | There is, of course, no requirement that a legislature use terminology
accepted by the medical community. A legislature could, no doubt, draft
a statute using the term "heart attack" even if the medical community
preferred "myocardial infarction." Legislatures, in fact, sometimes
use medical terms in ways that conflict with their clinical definitions,
see, e.g., Barber v. Director, 43 F. 3d 899, 901 (CA4 1995) (noting that
the medical definition of "pneumoconiosis" is only a subset of
the afflictions that fall within the definition of "pneumoconiosis"
in the Black Lung Act), a practice that is unremarkable so long as the legal
term is adequately defined. We have never, until today, suggested that legislature
may only use words accepted by every individual physician. Rather, "we
have traditionally left to legislators the task of defining terms of a medical
nature that have legal significance." Kansas v. Hendricks, 521 U. S.
346, 359 (1997). And we have noted that "[o]ften, those definitions
do not fit precisely with the definitions employed by the medical community."
Ibid. |
| [256] | Further, it is simply not true that the many legislatures, including Nebraska's,
that prohibited "partial birth abortion" chose to use a term known
only in the vernacular in place of a term with an accepted clinical meaning.
When the Partial-Birth Abortion Ban Act of 1995 was introduced in Congress,
the term "dilation and extraction" did not appear in any medical
dictionary. See, e.g., Dorland's Illustrated Medical Dictionary 470 (28th
ed. 1994); Stedman's Medical Dictionary, at 485; Miller-Keane Encyclopedia
& Dictionary of Medicine, Nursing, & Allied Health 460 (6th ed.
1997); The Sloane-Dorland Annotated Medical-Legal Dictionary 204 (1987);
I. Dox, J. Melloni, & G. Eisher, The HarperCollins Illustrated Medical
Dictionary 131 (1993). The term did not appear in descriptions of abortion
methods in leading medical textbooks. See, e.g., G. Cunningham et al., Williams
Obstetrics 579-605 (20th ed. 1997); Obstetrics: Normal & Problem Pregnancies,
at 1249-1279; W. Hern, Abortion Practice (1990). Abortion reference books
also omitted any reference to the term. See, e.g., Modern Methods of Inducing
Abortion (D. Baird, D. Grimes, & P. Van Look eds. 1995); E. Glick, Surgical
Abortion (1998).*fn15 |
| [257] | Not only did D&X have no medical meaning at the time, but the term
is ambiguous on its face. "Dilation and extraction" would, on
its face, accurately describe any procedure in which the woman is "dilated"
and the fetus "extracted," including D&E. See supra, at 5-6.
In contrast, "partial birth abortion" has the advantage of faithfully
describing the procedure the legislature meant to address because the fact
that a fetus is "partially born" during the procedure is indisputable.
The term "partial birth abortion" is completely accurate and descriptive,
which is perhaps the reason why the majority finds it objectionable. Only
a desire to find fault at any cost could explain the Court's willingness
to penalize the Nebraska Legislature for failing to replace a descriptive
term with a vague one. There is, therefore, nothing to the majority's argument
that the Nebraska Legislature is at fault for declining to use the term
"dilation and extraction."*fn16 |
| [258] | Second, the majority faults the Nebraska Legislature for failing to "track
the medical differences between D&E and D&X" and for failing
to "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." Ante, at 21. I have already explained why the
Nebraska statute reflects the medical differences between D&X and D&E.
To the extent the majority means that the Nebraska Legislature should have
"tracked the medical differences" by adopting one of the informal
definitions of D&X, this argument is without merit; none of these definitions
would have been effective to accomplish the State's purpose of preventing
abortions of partially born fetuses. Take, for example, ACOG's informal
definition of the term "intact D&X." According to ACOG, an
"intact D&X" consists of the following four steps: (1) deliberate
dilation of the cervix, usually over a sequence of days; (2) instrumental
conversion of the fetus to a footling breach; (3) breech extraction of the
body excepting the head; and (4) partial evacuation of the intracranial
contents of a living fetus to effect vaginal delivery of a dead but otherwise
intact fetus. App. 599-600 (ACOG Executive Board, Statement on Intact Dilation
and Extraction (Jan. 12, 1997)). ACOG emphasizes that "unless all four
elements are present in sequence, the procedure is not an intact D&X."
Id., at 600. Had Nebraska adopted a statute prohibiting "intact D&X,"
and defined it along the lines of the ACOG definition, physicians attempting
to perform abortions on partially born fetuses could have easily evaded
the statute. Any doctor wishing to perform a partial birth abortion procedure
could simply avoid liability under such a statute by performing the procedure,
as respondent does, only when the fetus is presented feet first, thereby
avoiding the necessity of "conversion of the fetus to a footling breech."
Id., at 599. Or, a doctor could convert the fetus without instruments. Or,
the doctor could cause the fetus' death before "partial evacuation
of the intracranial contents," id., at 600, by plunging scissors into
the fetus' heart, for example. A doctor could even attempt to evade the
statute by chopping off two fetal toes prior to completing delivery, preventing
the State from arguing that the fetus was "otherwise intact."
Presumably, however, Nebraska, and the many other legislative bodies that
adopted partial birth abortion bans, were not concerned with whether death
was inflicted by injury to the brain or the heart, whether the fetus was
converted with or without instruments, or whether the fetus died with its
toes attached. These legislative bodies were, I presume, concerned with
whether the child was partially born before the physician caused its death.
The legislatures' evident concern was with permitting a procedure that resembles
infanticide and threatens to dehumanize the fetus. They, therefore, presumably
declined to adopt a ban only on "intact D&X," as defined by
ACOG, because it would have been ineffective to that purpose. Again, the
majority is faulting Nebraska for a legitimate legislative calculation. |
| [259] | Third, the majority and Justice O'Connor argue that this Court generally
defers to lower federal courts' interpretations of state law. Ante, at 22
(majority opinion); ante, at 3-4 (O'Connor, J., concurring). However, a
decision drafted by Justice O'Connor, which she inexplicably fails to discuss,
Frisby v. Schultz, 487 U. S. 474 (1988), makes clear why deference is inappropriate
here. As Justice O'Connor explained in that case: |
| [260] | "[W]hile we ordinarily defer to lower court constructions of state
statutes, we do not invariably do so. We are particularly reluctant to defer
when the lower courts have fallen into plain error, which is precisely the
situation presented here. To the extent they endorsed a broad reading of
the ordinance, the lower courts ran afoul of the well-established principle
that statutes will be interpreted to avoid constitutional difficulties."
Id., at 483 (citations omitted). |
| [261] | Frisby, then, identifies exactly why the lower courts' opinions here are
not entitled to deference: The lower courts failed to identify the narrower
construction that, consistent with the text, would avoid any constitutional
difficulties. |
| [262] | Fourth, the majority speculates that some Nebraska prosecutor may attempt
to stretch the statute to apply it to D&E. But a state statute is not
unconstitutional on its face merely because we can imagine an aggressive
prosecutor who would attempt an overly aggressive application of the statute.
We have noted that " `[w]ords inevitably contain germs of uncertainty.'
" Broadrick v. Oklahoma, 413 U. S. 601, 608 (1973). We do not give
statutes the broadest definition imaginable. Rather, we ask whether "the
ordinary person exercising ordinary common sense can sufficiently understand
and comply with [the statute]." Ibid. (quoting Civil Service Commission
v. National Assn. of Letter Carriers, AFL-CIO, 413 U. S. 548, 579 (1973)).
While a creative legal mind might be able to stretch the plain language
of the Nebraska statute to apply to D&E, "citizens who desire to
obey the statute will have no difficulty in understanding it." Colten
v. Kentucky, 407 U. S. 104, 110 (1972) (internal quotation marks omitted). |
| [263] | Finally, the majority discusses at some length the reasons it will not
defer to the interpretation of the statute proffered by the Nebraska Attorney
General, despite the Attorney General's repeated representations to this
Court that his State will not apply the partial birth abortion statute to
D&E. See Brief for Petitioners 11-13; Tr. of Oral Arg. 10-11. The fact
that the Court declines to defer to the interpretation of the Attorney General
is not, however, a reason to give the statute a contrary representation.
Even without according the Attorney General's view any particular respect,
we should agree with his interpretation because is it undoubtedly the correct
one. Moreover, Justice O'Connor has noted that the Court should adopt a
narrow interpretation of a state statute when it is supported by the principle
that statutes will be interpreted to avoid constitutional difficulties and
well as by "the representations of counsel ... at oral argument."
Frisby v. Schultz, supra, at 483. Such an approach is particularly appropriate
in this case because, as the majority notes, Nebraska courts accord the
Nebraska Attorney General's interpretations of state statutes "substantial
weight." See State v. Coffman, 213 Neb. 560, 561, 330 N. W. 2d 727,
728 (1983). Therefore, any renegade prosecutor bringing criminal charges
against a physician for performing a D&E would find himself confronted
with a contrary interpretation of the statute by the Nebraska Attorney General,
and, I assume, a judge who both possessed common sense and was aware of
the rule of lenity. See State v. White, 254 Neb. 566, 575, 577 N. W. 2d
741, 747 (1998).*fn17 |
| [264] | IV. |
| [265] | Having resolved that Nebraska's partial birth abortion statute permits
doctors to perform D&E abortions, the question remains whether a State
can constitutionally prohibit the partial birth abortion procedure without
a health exception. Although the majority and Justice O'Connor purport to
rely on the standard articulated in the Casey joint opinion in concluding
that a State may not, they in fact disregard it entirely. |
| [266] | A. |
| [267] | Though Justices O'Connor, Kennedy, and Souter declined in Casey, on the
ground of stare decisis, to reconsider whether abortion enjoys any constitutional
protection, 505 U. S., at 844-846, 854-869 (majority opinion); id., at 871
(joint opinion), Casey professed to be, in part, a repudiation of Roe and
its progeny. The Casey joint opinion expressly noted that prior case law
had undervalued the State's interest in potential life, 505 U. S., at 875-876,
and had invalidated regulations of abortion that "in no real sense
deprived women of the ultimate decision," id., at 875. See id., at
871 ("Roe v. Wade speaks with clarity in establishing ... the State's
`important and legitimate interest in potential life.' That portion of the
decision in Roe has been given too little acknowledgment" (citation
omitted)). The joint opinion repeatedly recognized the States' weighty interest
in this area. See id., at 877 ("State ... may express profound respect
for the life of the unborn"); id., at 878 ("the State's profound
interest in potential life"); id., at 850 (majority opinion) ("profound
moral and spiritual implications of terminating a pregnancy, even in its
earliest stage"). And, the joint opinion expressed repeatedly the States'
legitimate role in regulating abortion procedures. See 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");
id., at 875 ("Not all governmental intrusion [with abortion] is of
necessity unwarranted"). According to the joint opinion, "The
fact that a law which serves a valid purpose, one not designed to strike
at the right itself, has the incidental effect of making it more difficult
or more expensive to procure an abortion cannot be enough to invalidate
it." Id., at 874. |
| [268] | The Casey joint opinion therefore adopted the standard: "Only where
state regulation imposes an undue burden on a woman's ability to make this
decision does the power of the State reach into the heart of the liberty
protected by the Due Process Clause." Ibid. A regulation imposes an
"undue burden" only if it "has the effect of placing a substantial
obstacle in the path of a woman's choice." Id., at 877. |
| [269] | B. |
| [270] | There is no question that the State of Nebraska has a valid interest --
one not designed to strike at the right itself -- in prohibiting partial
birth abortion. Casey itself noted that States may "express profound
respect for the life of the unborn." Ibid. States may, without a doubt,
express this profound respect by prohibiting a procedure that approaches
infanticide, and thereby dehumanizes the fetus and trivializes human life.
The AMA has recognized that this procedure is "ethically different
from other destructive abortion techniques because the fetus, normally twenty
weeks or longer in gestation, is killed outside the womb. The `partial birth'
gives the fetus an autonomy which separates it from the right of the woman
to choose treatments for her own body." AMA Board of Trustees Factsheet
on H. R. 1122 (June 1997), in App. to Brief for Association of American
Physicians and Surgeons et al. as Amici Curiae 1. Thirty States have concurred
with this view. |
| [271] | Although the description of this procedure set forth above should be sufficient
to demonstrate the resemblance between the partial birth abortion procedure
and infanticide, the testimony of one nurse who observed a partial birth
abortion procedure makes the point even more vividly: |
| [272] | "The baby's little fingers were clasping and unclasping, and his
little feet were kicking. Then the doctor stuck the scissors in the back
of his head, and the baby's arms jerked out, like a startle reaction, like
a flinch, like a baby does when he thinks he is going to fall. |
| [273] | "The doctor opened up the scissors, stuck a high-powered suction
tube into the opening, and sucked the baby's brains out. Now the baby went
completely limp." H. R. 1833 Hearing 18 (statement of Brenda Pratt
Shafer). |
| [274] | The question whether States have a legitimate interest in banning the
procedure does not require additional authority. See ante, at 6-9 (Kennedy,
J., dissenting).*fn18 In a civilized
society, the answer is too obvious, and the contrary arguments too offensive
to merit further discussion. But see ante, at 1-2 (Stevens, J., concurring)
(arguing that the decision of 30 States to ban the partial birth abortion
procedure was "simply irrational" because other forms of abortion
were "equally gruesome"); ante, at 1 (Ginsburg, J., concurring)
(similar).*fn19 |
| [275] | C. |
| [276] | The next question, therefore, is whether the Nebraska statute is unconstitutional
because it does not contain an exception that would allow use of the procedure
whenever " ` "necessary in appropriate medical judgment, for the
preservation of the ... health of the mother." ' " Ante, at 11
(majority opinion) (quoting Casey, 505 U. S., at 879 in turn quoting Roe,
410 U. S., at 164-165) (emphasis omitted). According to the majority, such
a health exception is required here because there is a "division of
opinion among some medical experts over whether D&X is generally safer
[than D&E], and an absence of controlled medical studies that would
help answer these medical questions." Ante, at 18. In other words,
unless a State can conclusively establish that an abortion procedure is
no safer than other procedures, the State cannot regulate that procedure
without including a health exception. Justice O'Connor agrees. Ante, at
1-2 (concurring opinion). The rule set forth by the majority and Justice
O'Connor dramatically expands on our prior abortion cases and threatens
to undo any state regulation of abortion procedures. |
| [277] | The majority and Justice O'Connor suggest that their rule is dictated
by a straightforward application of Roe and Casey. Ante, at 11 (majority
opinion); ante, at 1-2 (O'Connor, J., concurring). But that is simply not
true. In Roe and Casey, the Court stated that the State may "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."
Roe, supra, at 165; Casey, 505 U. S., at 879. Casey said that a health exception
must be available if "continuing her pregnancy would constitute a threat"
to the woman. Id., at 880 (emphasis added). Under these cases, if a State
seeks to prohibit abortion, even if only temporarily or under particular
circumstances, as Casey says that it may, id., at 879, the State must make
an exception for cases in which the life or health of the mother is endangered
by continuing the pregnancy. These cases addressed only the situation in
which a woman must obtain an abortion because of some threat to her health
from continued pregnancy. But Roe and Casey say nothing at all about cases
in which a physician considers one prohibited method of abortion to be preferable
to permissible methods. Today's majority and Justice O'Connor twist Roe
and Casey to apply to the situation in which a woman desires -- for whatever
reason -- an abortion and wishes to obtain the abortion by some particular
method. See ante, at 11-12 (majority opinion); ante, at 1-2 (concurring
opinion). In other words, the majority and Justice O'Connor fail to distinguish
between cases in which health concerns require a woman to obtain an abortion
and cases in which health concerns cause a woman who desires an abortion
(for whatever reason) to prefer one method over another. |
| [278] | It is clear that the Court's understanding of when a health exception
is required is not mandated by our prior cases. In fact, we have, post-Casey,
approved regulations of methods of conducting abortion despite the lack
of a health exception. Mazurek v. Armstrong, 520 U. S. 968, 971 (1997) (per
curiam) (reversing Court of Appeals holding that plaintiffs challenging
requirement that only physicians perform abortions had a " `fair chance
of success' "); id., at 979 (Stevens, J., dissenting) (arguing that
the regulation was designed to make abortion more difficult). And one can
think of vast bodies of law regulating abortion that are valid, one would
hope, despite the lack of health exceptions. For example, physicians are
presumably prohibited from using abortifacients that have not been approved
by the Food and Drug Administration even if some physicians reasonably believe
that these abortifacients would be safer for women than existing abortifacients.*fn20 |
| [279] | The majority effectively concedes that Casey provides no support for its
broad health exception rule by relying on pre-Casey authority, see ante,
at 12, including a case that was specifically disapproved of in Casey for
giving too little weight to the State's interest in fetal life. See Casey,
supra, at 869, 882 (overruling the parts of Thornburgh v. American College
of Obstetricians and Gynecologists, 476 U. S. 747 (1986), that were "inconsistent
with Roe's statement that the State has a legitimate interest in promoting
the life or potential life of the unborn," 505 U. S., at 870); id.,
at 893 (relying on Thornburgh, supra, at 783 (Burger, C. J., dissenting),
for the proposition that the Court was expanding on Roe in that case). Indeed,
Justice O'Connor, who joins the Court's opinion, was on the Court for Thornburgh
and was in dissent, arguing that, under the undue-burden standard, the statute
at issue was constitutional. See 476 U. S., at 828-832 (arguing that the
challenged state statute was not "unduly burdensome"). The majority's
resort to this case proves my point that the holding today assumes that
the standard set forth in the Casey joint opinion is no longer governing. |
| [280] | And even if I were to assume that the pre-Casey standards govern, the
cases cited by the majority provide no support for the proposition that
the partial birth abortion ban must include a health exception because some
doctors believe that partial birth abortion is safer. In Thornburgh, Danforth,
and Doe, the Court addressed health exceptions for cases in which continued
pregnancy would pose a risk to the woman. Thornburgh, supra, at 770; Planned
Parenthood of Central Mo. v. Danforth, 428 U. S. 52 (1976); Doe v. Bolton,
410 U. S., at 197. And in Colautti v. Franklin, 439 U. S. 379 (1979), the
Court explicitly declined to address whether a State can constitutionally
require a tradeoff between the woman's health and that of the fetus. The
broad rule articulated by the majority and by Justice O'Connor are unprecedented
expansions of this Court's already expansive pre-Casey jurisprudence. |
| [281] | As if this state of affairs were not bad enough, the majority expands
the health exception rule articulated in Casey in one additional and equally
pernicious way. Although Roe and Casey mandated a health exception for cases
in which abortion is "necessary" for a woman's health, the majority
concludes that a procedure is "necessary" if it has any comparative
health benefits. Ante, at 18. In other words, according to the majority,
so long as a doctor can point to support in the profession for his (or the
woman's) preferred procedure, it is "necessary" and the physician
is entitled to perform it. Id. See also ante, at 2 (Ginsburg, J., concurring)
(arguing that a State cannot constitutionally "sto[p] a woman from
choosing the procedure her doctor `reasonably believes' " is in her
best interest). But such a health exception requirement eviscerates Casey's
undue burden standard and imposes unfettered abortion-on-demand. The exception
entirely swallows the rule. In effect, no regulation of abortion procedures
is permitted because there will always be some support for a procedure and
there will always be some doctors who conclude that the procedure is preferable.
If Nebraska reenacts its partial birth abortion ban with a health exception,
the State will not be able to prevent physicians like Dr. Carhart from using
partial birth abortion as a routine abortion procedure. This Court has now
expressed its own conclusion that there is "highly plausible"
support for the view that partial birth abortion is safer, which, in the
majority's view, means that the procedure is therefore "necessary."
Ante, at 18. Any doctor who wishes to perform such a procedure under the
new statute will be able to do so with impunity. Therefore, Justice O'Connor's
assurance that the constitutional failings of Nebraska's statute can be
easily fixed, ante, at 5, is illusory. The majority's insistence on a health
exception is a fig leaf barely covering its hostility to any abortion regulation
by the States -- a hostility that Casey purported to reject.*fn21 |
| [282] | D. |
| [283] | The majority assiduously avoids addressing the actual standard articulated
in Casey -- whether prohibiting partial birth abortion without a health
exception poses a substantial obstacle to obtaining an abortion. 505 U.
S., at 877. And for good reason: Such an obstacle does not exist. There
are two essential reasons why the Court cannot identify a substantial obstacle.
First, the Court cannot identify any real, much less substantial, barrier
to any woman's ability to obtain an abortion. And second, the Court cannot
demonstrate that any such obstacle would affect a sufficient number of women
to justify invalidating the statute on its face. |
| [284] | 1. |
| [285] | The Casey joint opinion makes clear that the Court should not strike down
state regulations of abortion based on the fact that some women might face
a marginally higher health risk from the regulation. In Casey, the Court
upheld a 24-hour waiting period even though the Court credited evidence
that for some women the delay would, in practice, be much longer than 24
hours, and even though it was undisputed that any delay in obtaining an
abortion would impose additional health risks. Id., at 887; id., at 937
(Blackmun, J., concurring in part, concurring in judgment in part, and dissenting
in part) ("The District Court found that the mandatory 24-hour delay
could lead to delays in excess of 24 hours, thus increasing health risks").
Although some women would be able to avoid the waiting period because of
a "medical emergency," the medical emergency exception in the
statute was limited to those women for whom delay would create "serious
risk of substantial and irreversible impairment of a major bodily function."
Id., at 902 (internal quotation marks omitted). Without question, there
were women for whom the regulation would impose some additional health risk
who would not fall within the medical emergency exception. The Court concluded,
despite the certainty of this increased risk, that there was no showing
that the burden on any of the women was substantial. Id., at 887. |
| [286] | The only case in which this Court has overturned a State's attempt to
prohibit a particular form of abortion also demonstrates that a marginal
increase in health risks is not sufficient to create an undue burden. In
Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52 (1976), the
Court struck down a state regulation because the State had outlawed the
method of abortion used in 70% of abortions and because alternative methods
were, the Court emphasized, "significantly more dangerous and critical"
than the prohibited method. Id., at 76. |
| [287] | Like the Casey 24-hour waiting period, and in contrast to the situation
in Danforth, any increased health risk to women imposed by the partial birth
abortion ban is minimal at most. Of the 5.5% of abortions that occur after
15 weeks (the time after which a partial birth abortion would be possible),
the vast majority are performed with a D&E or induction procedure. And,
for any woman with a vertex presentation fetus, the vertex presentation
form of intact D&E, which presumably shares some of the health benefits
of the partial birth abortion procedure but is not covered by the Nebraska
statute, is available. Of the remaining women -- that is, those women for
whom a partial birth abortion procedure would be considered and who have
a breech presentation fetus -- there is no showing that any one faces a
significant health risk from the partial birth abortion ban. A select committee
of ACOG "could identify no circumstances under which this procedure
... would be the only option to save the life or preserve the health of
the woman." App. 600 (ACOG Executive Board, Statement on Intact Dilation
and Extraction (Jan. 12, 1997)). See also Hope Clinic v. Ryan, 195 F. 3d
857, 872 (CA7 1999) (en banc) (" `There does not appear to be any identified
situation in which intact D&X is the only appropriate procedure to induce
abortion' " (quoting Late Term Pregnancy Techniques, AMA Policy H-5.982
W. D. Wis. 1999)); Planned Parenthood of Wis. v. Doyle, 44 F. Supp. 2d,
at 980 (citing testimony of Dr. Haskell that "the D&X procedure
is never medically necessary to ... preserve the health of a woman"),
vacated, 195 F. 3d 857 (CA7 1999). And, an ad hoc coalition of doctors,
including former Surgeon General Koop, concluded that there are no medical
conditions that require use of the partial birth abortion procedure to preserve
the mother's health. See App. 719. |
| [288] | In fact, there was evidence before the Nebraska Legislature that partial
birth abortion increases health risks relative to other procedures. During
floor debates, a proponent of the Nebraska legislation read from and cited
several articles by physicians concluding that partial birth abortion procedures
are risky. App. in Nos. 98-3245, 98-3300 (CA8), p. 812. One doctor testifying
before a committee of the Nebraska Legislature stated that partial birth
abortion involves three "very risky procedures": dilation of the
cervix, using instruments blindly, and conversion of the fetus. App. 721
(quoting testimony of Paul Hays, M. D.).*fn22 |
| [289] | There was also evidence before Congress that partial birth abortion "does
not meet medical standards set by ACOG nor has it been adequately proven
to be safe nor efficacious." H. R. 1833 Hearing 112 (statement of Nancy
G. Romer, M. D.); see id., at 110-111.*fn23
The AMA supported the congressional ban on partial birth abortion, concluding
that the procedure is "not medically indicated" and "not
good medicine." See 143 Cong. Rec. S4670 (May 19, 1997) (reprinting
a letter from the AMA to Sen. Santorum). And there was evidence before Congress
that there is "certainly no basis upon which to state the claim that
[partial birth abortion] is a safer or even a preferred procedure."
Partial Birth Abortion: The Truth, S. 6 and H. R. 929 Joint Hearing 123
(statement of Curtis Cook, M. D.). This same doctor testified that "partial-birth
abortion is an unnecessary, unsteady, and potentially dangerous procedure,"
and that "safe alternatives are in existence." Id., at 122. |
| [290] | The majority justifies its result by asserting that a "significant
body of medical opinion" supports the view that partial birth abortion
may be a safer abortion procedure. Ante, at 19. I find this assertion puzzling.
If there is a "significant body of medical opinion" supporting
this procedure, no one in the majority has identified it. In fact, it is
uncontested that although this procedure has been used since at least 1992,
no formal studies have compared partial birth abortion with other procedures.
11 F. Supp. 2d, at 1112 (citing testimony of Dr. Stubblefield); id., at
1115 (citing testimony of Dr. Boehm); Epner, Jonas, & Seckinger, Late-term
Abortion, 280 JAMA 724 (Aug. 26, 1998); Sprang & Neerhof, Rationale
for Banning Abortion Late in Pregnancy, 280 JAMA 744 (Aug. 26, 1998). Cf.
Kumho Tire Co. v. Carmichael, 526 U. S. 137, 149-152 (1999) (observing that
the reliability of a scientific technique may turn on whether the technique
can be and has been tested; whether it has been subjected to peer review
and publication; and whether there is a high rate of error or standards
controlling its operation). The majority's conclusion makes sense only if
the undue-burden standard is not whether a "significant body of medical
opinion," supports the result, but rather, as Justice Ginsburg candidly
admits, whether any doctor could reasonably believe that the partial birth
abortion procedure would best protect the woman. Ante, at 2. |
| [291] | Moreover, even if I were to assume credible evidence on both sides of
the debate, that fact should resolve the undue-burden question in favor
of allowing Nebraska to legislate. Where no one knows whether a regulation
of abortion poses any burden at all, the burden surely does not amount to
a "substantial obstacle." Under Casey, in such a case we should
defer to the legislative judgment. We have said: |
| [292] | "[I]t is precisely where such disagreement exists that legislatures
have been afforded the widest latitude in drafting such statutes... . [W]hen
a legislature undertakes to act in areas fraught with medical and scientific
uncertainty, legislative options must be especially broadies... ."
Kansas v. Hendricks, 521 U. S., at 360, n. 3 (internal quotations marks
omitted). |
| [293] | In Justice O'Connor's words: |
| [294] | "It is ... difficult to believe that this Court, without the resources
available to those bodies entrusted with making legislative choices, believes
itself competent to make these inquiries and to revise these standards every
time the American College of Obstetricians and Gynecologists (ACOG) or similar
group revises its views about what is and what is not appropriate medical
procedure in this area." Akron v. Akron Center for Reproductive Health,
Inc., 462 U. S., at 456 (dissenting opinion). See id., at 456, n. 4 ("Irrespective
of the difficulty of the task, legislatures, with their superior factfinding
capabilities, are certainly better able to make the necessary judgments
than are courts"); Webster v. Reproductive Health Services, 492 U.
S., at 519 (plurality opinion) (Court should not sit as an "ex officio
medical board with powers to approve or disapprove medical and operative
practices and standards throughout the United States) (internal quotations
marks omitted); Jones v. United States, 463 U. S. 354, 365, n. 13 (1983)
("The lesson we have drawn is not that government may not act in the
face of this [medical] uncertainty, but rather that courts should pay particular
deference to reasonable legislative judgments"). The Court today disregards
these principles and the clear import of Casey. |
| [295] | 2. |
| [296] | Even if I were willing to assume that the partial birth method of abortion
is safer for some small set of women, such a conclusion would not require
invalidating the Act, because this case comes to us on a facial challenge.
The only question before us is whether respondent has shown that "
`no set of circumstances exists under which the Act would be valid.' "
Ohio v. Akron Center for Reproductive Health, 497 U. S. 502, 514 (1990)
(quoting Webster v. Reproductive Health Services, supra, at 524 (O'Connor,
J., concurring in part and concurring in judgment)). Courts may not invalidate
on its face a state statute regulating abortion "based upon a worst-case
analysis that may never occur." 497 U. S., at 514. |
| [297] | Invalidation of the statute would be improper even assuming that Casey
rejected this standard sub silentio (at least so far as abortion cases are
concerned) in favor of a so-called " `large fraction' " test.
See Fargo Women's Health Organization v. Schafer, 507 U. S. 1013, 1014 (1993)
(O'Connor, J., joined by Souter, J., concurring) (arguing that the "no
set of circumstances" standard is incompatible with Casey). See also
Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U. S. 1174, 1177-1179
(1996) (Scalia, J., dissenting from denial of certiorari). In Casey, the
Court was presented with a facial challenge to, among other provisions,
a spousal notice requirement. The question, according to the majority was
whether the spousal notice provision operated as a "substantial obstacle"
to the women "whose conduct it affects," namely, "married
women seeking abortions who do not wish to notify their husbands of their
intentions and who do not qualify for one of the statutory exceptions to
the notice requirement." 505 U. S., at 895. The Court determined that
a "large fraction" of the women in this category were victims
of psychological or physical abuse. Id., at 895. For this subset of women,
according to the Court, the provision would pose a substantial obstacle
to the ability to obtain an abortion because their husbands could exercise
an effective veto over their decision. Id., at 897. |
| [298] | None of the opinions supporting the majority so much as mentions the large
fraction standard, undoubtedly because the Nebraska statute easily survives
it. I will assume, for the sake of discussion, that the category of women
whose conduct Nebraska's partial birth abortion statute might affect includes
any woman who wishes to obtain a safe abortion after 16 weeks' gestation.
I will also assume (although I doubt it is true) that, of these women, every
one would be willing to use the partial birth abortion procedure if so advised
by her doctor. Indisputably, there is no "large fraction" of these
women who would face a substantial obstacle to obtaining a safe abortion
because of their inability to use this particular procedure. In fact, it
is not clear that any woman would be deprived of a safe abortion by her
inability to obtain a partial birth abortion. More medically sophisticated
minds than ours have searched and failed to identify a single circumstance
(let alone a large fraction) in which partial birth abortion is required.
But no matter. The "ad hoc nullification" machine is back at full
throttle. See Thornburgh v. American College of Obstetricians and Gynecologists,
476 U. S., at 814 (O'Connor, J., dissenting); Madsen v. Women's Health Center,
Inc., 512 U. S. 753, 785 (1994) (Scalia, J., concurring in judgment in part
and dissenting in part). |
| [299] | We were reassured repeatedly in Casey that not all regulations of abortion
are unwarranted and that the States may express profound respect for fetal
life. Under Casey, the regulation before us today should easily pass constitutional
muster. But the Court's abortion jurisprudence is a particularly virulent
strain of constitutional exegesis. And so today we are told that 30 States
are prohibited from banning one rarely used form of abortion that they believe
to border on infanticide. It is clear that the Constitution does not compel
this result. |
| [300] | I respectfully dissent. |
|
|
|
| Opinion Footnotes | |
|
|
|
| [301] | *fn1 Unless otherwise noted, all subsequent
cites of Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833
(1992), are of the joint opinion of O'Connor, Kennedy, and Souter, JJ. |
| [302] | *fn2 In 1996, the most recent year for
which abortion statistics are available from the Centers for Disease Control
and Prevention, there were approximately 1,221,585 abortions performed in
the United States. Centers for Disease Control and Prevention, Abortion
Surveillance -- United States, 1996, p. 1 (July 30, 1999). Of these abortions,
about 67,000 -- 5.5% --were performed in or after the 16th week of gestation,
that is, from the middle of the second trimester through the third trimester.
Id., at 5. The majority apparently accepts that none of the abortion procedures
used for pregnancies in earlier stages of gestation, including "dilation
and evacuation" (D&E) as it is practiced between 13 and 15 weeks'
gestation, would be compromised by the statute. See ante, at 20-21 (concluding
that the statute could be interpreted to apply to instrumental dismemberment
procedures used in a later term D&E). Therefore, only the methods of
abortion available to women in this later stage of pregnancy are at issue
in this case. |
| [303] | *fn3 At 16 weeks' gestation, the average
fetus is approximately six inches long. By 20 weeks' gestation, the fetus
is approximately eight inches long. K. Moore & T. Persaud, The Developing
Human 112 (6th ed. 1998). |
| [304] | *fn4 Past the 20th week of gestation,
respondent attempts to induce fetal death by injection prior to beginning
the procedure in patients. 11 F. Supp. 2d, at 1106; App. 64. |
| [305] | *fn5 There is a disagreement among the
parties regarding the appropriate term for this procedure. Congress and
numerous state legislatures, including Nebraska's, have described this procedure
as "partial birth abortion," reflecting the fact that the fetus
is all but born when the physician causes its death. See infra, at 7-8.
Respondent prefers to refer generically to "intact dilation and evacuation"
or "intact D&E" without reference to whether the fetus is
presented head first or feet first. One of the doctors who developed the
procedure, Martin Haskell, described it as "Dilation and Extraction"
or "D&X." See The Partial-Birth Abortion Ban Act of 1995,
Hearing on H. R. 1833 before the Senate Committee on the Judiciary, 104th
Cong., 1st Sess., 5 (1995) (hereinafter H. R. 1833 Hearing). The Executive
Board of the American College of Obstetricians and Gynecologists (ACOG)
refers to the procedure by the hybrid term "intact dilation and extraction"
or "intact D&X," see App. 599 (ACOG Executive Board, Statement
on Intact Dilation and Extraction (Jan. 12, 1997)), which term was adopted
by the AMA, see id., at 492 (AMA, Report of the Board of Trustees on Late-Term
Abortion). I will use the term "partial birth abortion" to describe
the procedure because it is the legal term preferred by 28 state legislatures,
including the State of Nebraska, and by the United States Congress. As I
will discuss, see infra, at 21-23, there is no justification for the majority's
preference for the terms "breech-conversion intact D&E" and
"D&X" other than the desire to make this procedure appear
to be medically sanctioned. |
| [306] | *fn6 There is apparently no general
understanding of which women are appropriate candidates for the procedure.
Respondent uses the procedure on women at 16 to 20 weeks' gestation. 11
F. Supp. 2d, at 1105. The doctor who developed the procedure, Dr. Martin
Haskell, indicated that he performed the procedure on patients 20 through
24 weeks and on certain patients 25 through 26 weeks. See H. R. 1833 Hearing
36. |
| [307] | *fn7 There are, in addition, two forms
of abortion that are used only rarely: hysterotomy, a procedure resembling
a Caesarean section, requires the surgical delivery of the fetus through
an incision on the uterine wall, and hysterectomy. 11 F. Supp. 2d, at 1109. |
| [308] | *fn8 The majority argues that the statute
does not explicitly require that the death-causing procedure be separate
from the overall abortion procedure. That is beside the point; under the
statute the death-causing procedure must be separate from the delivery.
Moreover, it is incorrect to state that the statute contemplates only one
"procedure." The statute clearly uses the term "procedure"
to refer to both the overall abortion procedure ("partial birth abortion"
is "an abortion procedure") as well as to a component of the overall
abortion procedure ("for the purpose of performing a procedure ...
that will kill the unborn child"). |
| [309] | *fn9 It is certainly true that an undefined
term must be construed in accordance with its ordinary and plain meaning.
FDIC v. Meyer, 510 U. S. 471, 476 (1994). But this does not mean that the
ordinary and plain meaning of a term is wholly irrelevant when that term
is defined. |
| [310] | *fn10 As noted, see n. 5, supra, there
is no consensus regarding which of these terms is appropriate to describe
the procedure. I assume, as the majority does, that the terms are, for purposes
here, interchangeable. |
| [311] | *fn11 Congressional legislation prohibiting
the procedure was first introduced in June 1995, with the introduction of
the Partial Birth Abortion Ban Act, H. R. 1833. This measure, which was
sponsored by 165 individual House Members, passed both Houses by wide margins,
141 Cong. Rec. 35892 (1995); 142 Cong. Rec. 31169 (1996), but was vetoed
by President Clinton, see id., at 7467. The House voted to override the
veto on September 19, 1996, see id., at 23851; however, the Senate failed
to override by a margin of 13 votes, see id., at 25829. In the next Congress,
181 individual House cosponsors reintroduced the Partial Birth Abortion
Ban Act as H. R. 929, which was later replaced in the House with H. R. 1122.
See H. R. 1122, 105th Cong., 1st Sess. (1997). The House and Senate again
adopted the legislation, as amended, by wide margins. See 143 Cong. Rec.
H1230 (1997); id., at S715. President Clinton again vetoed the bill. See
id., at H8891. Again, the veto override passed in the House and fell short
in the Senate. See 144 Cong. Rec. H6213 (1998); id., at S10564. |
| [312] | *fn12 Consistent with the practice
of Dr. Haskell (an Ohio practitioner), Ohio referred to the procedure as
"dilation and extraction," defined as "the termination of
a human pregnancy by purposely inserting a suction device into the skull
of a fetus to remove the brain." Ohio Rev. Code Ann. §2919.15(A) (1997).
Missouri refers to the killing of a "partially-born" infant as
"infanticide." Mo. Stat. Ann. §565.300 (Vernon Supp. 2000). |
| [313] | *fn13 For the most part, these States
defined the term "partial birth abortion" using language similar
to that in the 1995 proposed congressional legislation, that is "an
abortion in which the person performing the abortion partially vaginally
delivers a living fetus before killing the fetus and completing the delivery."
See H. R. 1833 Hearing 210. See, e.g., Alaska Stat. Ann. §18.16.050 (1998);
Ariz. Rev. Stat. Ann. §13-3603.01 (Supp. 1999); Ark. Code Ann. §5-61-202
(1997); Fla. Stat. §390.011 (Supp. 2000); Ill. Comp. Stat., ch. 720, §513/5
(1999); Ind. Code Ann. §16-18-2-267.5 (West Supp. 1999); Mich. Comp. Laws
Ann. §333.17016(5)(c) (Supp. 2000); Miss. Code Ann. §41-41-73(2)(a) (Supp.
1998); S. C. Code Ann. §44-41-85(A)(1) (1999 Cum. Supp.). Other States,
including Nebraska, see Neb. Rev. Stat. Ann. §28-326 (Supp. 1999), defined
"partial-birth abortion" using language similar to that used in
the 1997 proposed congressional legislation, which retained the definition
of partial birth abortion used in the 1995 bill, that is "an abortion
in which the person performing the abortion partially vaginally delivers
a living fetus before killing the fetus and completing the delivery,"
but further defined that phrase to mean "deliberately and intentionally
delivers into the vagina a living fetus, or a substantial portion there
of, for the purpose of performing a procedure the physician knows will kill
the fetus, and kills the fetus." See Partial Birth Abortion Ban Act
of 1997, H. R. 1122, 105th Cong., 1st Sess. (1997). See, e.g, Idaho Code
§18-613(a) (Supp. 1999); Iowa Code Ann. §707.8A(1)(c) (Supp. 1999); N. J.
Stat. Ann. §2A:65A-6(e) (West Supp. 2000); Okla. Stat. Ann., Tit. 21, §684
(Supp. 2000); R. I. Gen. Laws §23-4.12-1 (Supp. 1999); Tenn. Code Ann. §39-15-209(a)(1)
(1997). |
| [314] | *fn14 The majority argues that its
approach is supported by Meese v. Keene, 481 U. S. 465, 487 (1987), in which
the Court stated that "the statutory definition of [a] term excludes
unstated meanings of that term." But this case provides no support
for the approach adopted by the majority and Justice O'Connor. In Meese,
the Court addressed a statute that used the term "political propaganda."
Id., at 470. The Court noted that there were two commonly understood meanings
to the term "political propaganda," id., at 477, and, not surprisingly,
chose the definition that was most consistent with the statutory definition,
id., at 485. Nowhere did the Court suggest that, because "political
propaganda" was defined in the statute, the commonly understood meanings
of that term were irrelevant. Indeed, a significant portion of the Court's
opinion was devoted to describing the effect of Congress' use of that term.
Id., at 477-479, 483-484. So too, Colautti v. Franklin, 439 U. S. 379, 392-393,
n. 10 (1979), and Western Union Telegraph Co. v. Lenroot, 323 U. S. 490
(1945), support the proposition that when there are two possible interpretations
of a term, and only one comports with the statutory definition, the term
should not be read to include the unstated meaning. But here, there is only
one possible interpretation of "partial birth abortion" -- the
majority can cite no authority using that term to describe D&E -- and
so there is no justification for the majority's willingness to entirely
disregard the statute's use of that term. |
| [315] | *fn15 Nor, for that matter, did the
terms "intact dilation and extraction" or "intact dilation
and evacuation" appear in textbooks or medical dictionaries. See supra
this page. In fact, respondent's preferred term "intact D&E"
would compound, rather than remedy, any confusion regarding the statute's
meaning. As is evident from the majority opinion, there is no consensus
on what this term means. Compare ante, at 8 (describing "intact D&E"
to refer to both breech and vertex presentation procedures), with App. 6
(testimony of Dr. Henshaw) (using "intact D&E" to mean only
breech procedure), with id., at 275 (testimony of Dr. Stubblefield) (using
"intact D&E" to refer to delivery of fetus that has died in
utero). |
| [316] | *fn16 The fact that the statutory
term "partial birth abortion" may express a political or moral
judgment, whereas "dilation and extraction" does not, is irrelevant.
It is certainly true that technical terms are frequently empty of normative
content. (Of course, the decision to use a technical term can itself be
normative. See ante, passim (majority opinion)). But, so long as statutory
terms are adequately defined, there is no requirement that Congress or state
legislatures draft statutes using morally agnostic terminology. See, e.g.,
18 U. S. C. §922(v) (making it unlawful to "manufacture, transfer,
or possess a semiautomatic assault weapon"); Kobayashi & Olson,
et al., In Re 101 California Street: A Legal and Economic Analysis of Strict
Liability For The Manufacture And Sale Of "Assault Weapons," 8
Stan. L. & Pol'y Rev. 41, 43 (1997) ("Prior to 1989, the term `assault
weapon' did not exist in the lexicon of firearms. It is a political term,
developed by anti-gun publicists to expand the category of `assault rifles'
so as to allow an attack on as many additional firearms as possible on the
basis of undefined `evil' appearance"). See also Meese, 481 U. S.,
at 484-485. |
| [317] | *fn17 The majority relies on Justice
Scalia's observation in Crandon v. United States, 494 U. S. 152 (1990) that
"we have never thought that the interpretation of those charged with
prosecuting criminal statutes is entitled to deference." Id., at 177.
But Justice Scalia was commenting on the United States Attorney General's
overly broad interpretation of a federal statute, deference to which, as
he said, would "turn the normal construction of criminal statutes upside-down,
replacing the doctrine of lenity with a doctrine of severity." Id.,
at 178. Here, the Nebraska Attorney General has adopted a narrow view of
a criminal statute, one that comports with the rule of lenity (not to mention
the statute's plain meaning). |
| [318] | *fn18 I read the majority opinion
to concede, if only implicitly, that the State has a legitimate interest
in banning this dehumanizing procedure. The threshold question under Casey
is whether the abortion regulation serves a legitimate state interest. 505
U. S., at 833. Only if the statute serves a legitimate state interest is
it necessary to consider whether the regulation imposes a substantial obstacle
to women seeking an abortion. Ibid. The fact that the majority considers
whether Nebraska's statute creates a substantial obstacle suggests that
the Members of the majority other than Justice Stevens and Justice Ginsburg
have rejected respondent's threshold argument that the statute serves no
legitimate state purpose. |
| [319] | *fn19 Justice Ginsburg seems to suggest
that even if the Nebraska statute does not impose an undue burden on women
seeking abortions, the statute is unconstitutional because it has the purpose
of imposing an undue burden. Justice Ginsburg's view is, apparently, that
we can presume an unconstitutional purpose because the regulation is not
designed to save any fetus from "destruction" or protect the health
of pregnant women and so must, therefore, be designed to "chip away
at ... Roe." Ante, at 1. This is a strange claim to make with respect
to legislation that was enacted in 30 individual States and was enacted
in Nebraska by a vote of 99 to 1, Nebraska Legislative Journal, 95th Leg.,
1st Sess. 2609 (1997). Moreover, in support of her assertion that the Nebraska
Legislature acted with an unconstitutional purpose, Justice Ginsburg is
apparently unable to muster a single shred of evidence that the Nebraska
legislation was enacted to prevent women from obtaining abortions (a purpose
to which it would be entirely ineffective), let alone the kind of persuasive
proof we would require before concluding that a legislature acted with an
unconstitutional intent. In fact, as far as I can tell, Justice Ginsburg's
views regarding the motives of the Nebraska Legislature derive from the
views of a dissenting Court of Appeals judge discussing the motives of legislators
of other States. Justice Ginsburg's presumption is, in addition, squarely
inconsistent with Casey, which stated that States may enact legislation
to "express profound respect for the life of the unborn," 505
U. S., at 877, and with our opinion in Mazurek v. Armstrong, 520 U. S. 968
(1997) (per curiam), in which we stated: "[E]ven assuming ...that a
legislative purpose to interfere with the constitutionally protected right
to abortion without the effect of interfering with that right ... could
render the Montana law invalid --there is no basis for finding a vitiating
legislative purpose here. We do not assume unconstitutional legislative
intent even when statutes produce harmful results, see, e.g., Washington
v. Davis, 426 U. S. 229, 246 (1976); much less do we assume it when the
results are harmless." Id., at 972 (emphases in original). |
| [320] | *fn20 As I discuss below, the only
question after Casey is whether a ban on partial birth abortion without
a health exception imposes an "undue burden" on a woman seeking
an abortion, meaning that it creates a "substantial obstacle"
for the woman. I assume that the Court does not discuss the health risks
with respect to undue burden, and instead suggests that health risks are
relevant to the necessity of a health exception, because a marginal increase
in safety risk for some women is clearly not an undue burden within the
meaning of Casey. At bottom, the majority is using the health exception
language to water down Casey's undue-burden standard. |
| [321] | *fn21 The majority's conclusion that
health exceptions are required whenever there is any support for use of
a procedure is particularly troubling because the majority does not indicate
whether an exception for physical health only is required, or whether the
exception would have to account for "all factors -- physical, emotional,
psychological, familial, and the woman's age -- relevant to the well being
of the patient." Doe v. Bolton, 410 U. S. 179, 192 (1973). See also
Voinovich v. Women's Medical Professional Corp., 523 U. S. 1036, 1037 (1998)
(Thomas, J., joined by Rehnquist, C. J., and Scalia, J., dissenting from
denial of certiorari). |
| [322] | *fn22 Use of the procedure may increase
the risk of complications, including cervical incompetence, because it requires
greater dilation of the cervix than other forms of abortion. See Epner,
Jonas, & Seckinger, Late-term Abortion, 280 JAMA 724, 726 (Aug. 26,
1998). Physicians have also suggested that the procedure may pose a greater
risk of infection. See Planned Parenthood of Wis. v. Doyle, 44 F. Supp.
2d 975, 979 (WD Wis. 1999). See also Sprang & Neerhof, Rationale for
Banning Abortions Late in Pregnancy, 280 JAMA 744 (Aug. 26, 1998) ("Intact
D&X poses serious medical risks to the mother"). |
| [323] | *fn23 Nebraska was entitled to rely
on testimony and evidence presented to Congress and to other state legislatures.
Cf. Erie v. Pap's A. M., 529 U. S. ___, ___ (2000) (slip op., at 15-16);
Renton v. Playtime Theatres, Inc., 475 U. S. 41, 51 (1986). At numerous
points during the legislative debates, various members of the Nebraska Legislature
made clear that that body was aware of, and relying on, evidence before
Congress and other legislative bodies. See App. in Nos. 98-3245, 98-3300
(CA8), pp. 846, 852-853, 878-879, 890-891, 912-913. |
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