Stenberg v. Carhart was a case heard by the Supreme Court of the United States dealing with so-called "Partial Birth Abortions." The Court held that a woman had a right to an abortion regardless of the procedure.

Background and Facts

A physician named Leroy Carhart brought suit against Don Stenberg, the attorney general of Nebraska, seeking declaratory judgment that a state law banning certain forms of abortion was unconstitutional, based on the precedent set it Roe v. Wade and the cases that followed it. Both a federal district court and the U.S. Court of Appeals ruled in favor of Carhart before the case was appealed to the Supreme Court.

The Nebraska law prohibited any form of abortion that "partially delivers vaginally a living unborn child before killing the child." Most of the abortions performed consisted of a vacuum tube inserted into the uterus. Others consisted of what was known as "D & E" (Dialation and Evacuation), which is usually used during the second trimeseter because of the increased fetus size. D & E dialated the cervix and removed some fetal tissue with non-vacuum intruments, and in some cases, dismembered the fetal parts inside the uterus so that they could be evacuated. Dr. Carhart wanted to use a modified version of this called "D & X" (Dialation and Extraction), which rather than dismembering the fetus inside of the uterus, extracted it first and then dismembered it. Carhart wanted to perform this procedure because he believed it would be safer for the women. It would not leave bone fragments or potentially harmful fetal tissue in the uterus, and it minimized the number of instruments needed to be used.

Nebraska would not let Dr. Carhart use this procedure, and claimed it was not necessary, as other options were available. Carhart appealed his case all the way to the Supreme Court because he believed it would be a safer procedure, and that it violated women's rights.

The Court's Decision

The case was argued in 2000, in which Nebraska presented its side, that it felt partial-birth abortion to be immoral and that it should be banned. They showed that women had other options. But the law made no exception for the health of the woman, as Carhart's side pointed out, and it kept physicians and patients from deciding for themselves what was the best medical procedure.

Justice Breyer, in writing the opinion of the Court, cited Planned Parenthood of Southeast Pennsylvania v. Casey and said that any abortion law that imposed an undue burden on a woman's right to choose was unconstitutional. He said that causing those who procure abortions to "fear prosecution, conviction, and imprisonment" was an undue burden, and therefore declared the law to be against the Constitution. Justices Stevens, Ginsburg, Souter, and O'Connor, all agreed that the law was unconstitutional, but Ginsburg wrote a separate opinion, as did O'Connor. Ginsburg stated plainly that a state could not force physicians to use procedures other than what they felt in their own judgment to be the safest, that this was part of the "life and liberty" protected under Constitution. O'Connor agreed, saying that any such procedural law would have to be only to prevent unnecessary partial-birth abortions, and would have to include an exception for the health of the mother (as this law did not).

Justice Kennedy dissented. Kennedy believes in a woman's right to choose, but also said that Nebraska had a legitimate state interest in regulating the type of abortions performed, and that this took precedent over a woman's rights to some degree. This was a far shot from Thomas' dissent, which basically read that women do not have any right to choose, and even attacked the other justices. Rehnquist, Scalia, and Thomas have consistently said that they do not believe a woman has the right to choose. The three of them want Roe v. Wade to be overturned.

By a 5-4 majority, the Nebraska law was struck down, as were all other state laws. The federal ban on partial birth abortions (which likewise did not include an exception for the health of the mother) is probably headed for a similar fate. It is interesting to note that despite all the controversy over partial-birth abortions, they account for a very small percentage (estimated at .0005%) of the number of abortion procedures in America.

External Links

Opinion of the Court from FindLaw.com