Stenberg v. Carhart (5-4, Justice Breyer)
Invalidated a Nebraska statute banning partial birth abortions.
Where partially delivers vaginally a living unborn child before
killing the unborn child and completing the delivery.
Invalidated on two separate grounds
It contained no exception for ht preservation of the health of
the mother required by Casey.
It imposed an UNDUE BURDEN on the abortion right.
- Partial-Birth Abortion Act of 2003
This Act is more specific that Stenberg.
It is more prcised in coverage.
We conclude the Act should be sustained.
This Act proscribes a particular manner of ending fetal life.
Abortions that take place
85 to 90% of 1.3 million happen in the first 3 months.
#1) Most common abortion: Vacuum Aspiration (physical vacuums
out the embryonic tissue).
#2) Medical Alternative: Mifepristone RU-486
The Act does not regulate Vacuum Aspiration or RU-486.
#3) Dilation and Evacuation: During the second trimester.
10 to 15 passes of ripping the baby from the mothers fetus
piece by piece.
#4) Intact Dilation and Evacuation
The Doctor tries to extract the baby without ripping it apart.
Just horrible descriptions.
Partial-Birth Abortion Act of 2003 was a response to Stenberg
moral, medical, and ethical consensus exists that the practice
of performing a partial-birth abortion is a gruesome and
inhumane procedure that is never medically necessary and should
Second, and more relevant here, the Act's language differs from
that of the Nebraska statute struck down in Stenberg.
The Act Provides
The Act criminalizes the
performance of partial-birth
abortions except when the abortion is NECESSARY to
save the life of the mother.
defendant accused of an offense under this section may seek a
hearing before the State Medical Board on
whether the physician's conduct
was necessary to save the life of the mother whose life was
endangered by a physical disorder, physical illness, or physical
injury, including a life-endangering physical condition caused
by or arising from the pregnancy itself.
woman upon whom a partial-birth abortion is performed may not be
prosecuted under this section
Government has a legitimate and substantial interest in
preserving and promotion fetal life.
We assume the following principles for the purposes of this
May not prohibit termination of pregnancy before viability
a State "may not prohibit any woman from making the ultimate
decision to terminate her pregnancy."
May not place an obstacle before the fetus attains viability
state may not impose an undue burden, where the regulation's
"purpose or effect is to place a substantial obstacle in the
path of a woman seeking an abortion before the fetus attains
May express profound respect for human life
On the other hand, "[r]egulations which do no more than create a
structural mechanism by which the State, or the parent or
guardian of a minor, may 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."
Casey, in short, struck a balance.
The balance was central to its holding.
We now apply its standard to the cases at bar.
The Acts purpose and scope is to regulate and proscribe, with
exceptions or qualification, performing the intact D & E.
Reach of act is unclear an excessive.
Scope is indefinite.
Proscribes all D & Es.
Void for vagueness
- Not void and does not impose an undue burden, not invalid on
The Act punishes "knowingly perform[ing]" a "partial-birth
First, the person performing the abortion must "vaginally
delive[r] a living fetus."
The Act does not restrict
an abortion procedure involving the delivery of an
The Act, furthermore, is
inapplicable to abortions that
do not involve vaginal delivery
(for instance, hysterotomy or hysterectomy).
The Act does apply both previability and postviability.
Second, the Act's definition of partial-birth abortion requires
the fetus to be delivered "until, in the case of a head-first
presentation, the entire
fetal head is outside the body of the mother, or, in
the case of breech presentation,
any part of the
fetal trunk past the navel is outside the body of the
The Attorney General concedes, and we agree, that if an abortion
procedure does not involve the
delivery of a living fetus to one of these
"anatomical 'land-marks' "--where, depending on the
presentation, either the fetal head or the fetal trunk past the
navel is outside the body of the mother--the prohibitions of the
Act do not apply.
(ONLY applies to body parts outside the naval)
Third, to fall within the Act, a doctor must perform an "overt
act, other than completion of delivery, that kills the partially
delivered living fetus."
For purposes of criminal liability, the overt act causing the
fetus' death must be separate from delivery.
And the overt act must occur after the delivery to an anatomical
This is because the Act proscribes killing "the partially
delivered" fetus, which, when read in context, refers to a fetus
that has been delivered to an anatomical landmark.
Fourth, the Act contains scienter requirements concerning all
the actions involved in the prohibited abortion.
To begin with, the physician must have "deliberately and
intentionally" delivered the fetus to one of the Act's
If a living fetus is delivered past the critical point
by accident or inadvertence,
the Act is inapplicable.
Doctor knows he will kill it
In addition, the fetus must have been delivered "for the purpose
of performing an overt act that the [doctor] knows will kill
Intend it required
If either intent is absent, no crime has occurred.
This follows from the general principle that where scienter is
required no crime is committed absent the requisite state of
The Act defines the line between potentially criminal conduct on
the one hand and lawful abortion on the other.
Doctors performing D & E will know that if they do not deliver a
living fetus to an anatomical landmark they will not face
Whether the Act imposes an undue burden, as a facial matter,
because its restrictions on second-trimester abortions are too
broad? No undue burden.
- A review of the statutory text discloses the limits of its
The Act prohibits intact D&E; and, notwithstanding respondents'
arguments, it does not prohibit the D&E procedure in which the
fetus is removed in parts.
The Act prohibits a doctor from intentionally performing
an intact D&E.
Dual prohibitions are required for criminal liability
First, a doctor delivers the fetus until its head lodges in the
cervix, which is usually past the anatomical landmark for a
Second, the doctor proceeds to pierce the fetal skull with
scissors or crush it with forceps.
This step satisfies the overt-act requirement because it kills
the fetus and is distinct from delivery.
The Act's intent requirements, however, limit its reach to those
physicians who carry out the intact D&E after intending to
undertake both steps at the outset.
The Act excludes most D&Es in which the fetus is removed in
pieces, not intact.
If the doctor intends to remove the fetus in parts from the
outset, the doctor will not have the requisite intent to incur
The removal of a small portion of the fetus is NOT prohibited.
By adding an overt-act requirement Congress sought further to
meet the Court's objections to the state statute considered in
The canon of constitutional avoidance, finally, extinguishes any
lingering doubt as to whether the Act covers the prototypical
- Contrary arguments by respondents are unavailing.
Respondents Arg - look to situations that might arise during D&E
- These situations not examined in Stenberg.
Respondents contend - relying on the testimony of numerous
D&E may result in the delivery of a living fetus beyond the
Act's anatomical landmarks in a significant fraction of cases.
Doctors cannot predict the amount the cervix will dilate before
the abortion procedure.
It might dilate to a degree that the fetus will be removed
To complete the abortion, doctors will commit an overt act that
kills the partially delivered fetus.
Respondents thus posit that any D&E has the potential to violate
the Act, and that a physician will not know beforehand whether
the abortion will proceed in a prohibited manner.
- Does not take account of the Act's intent requirements
This requirement preclude liability from attaching to an
accidental intact D&E.
Intake delivery is ALMOST always a conscious choice
The evidence also supports a legislative determination that an
intact delivery is almost always a conscious choice rather than
D&E cannot be performed without INTENT and FORESEEABILITY
This evidence belies any claim that a standard D&E cannot be
performed without intending or foreseeing an intact D&E.
Whether the Act, measured by its text in this facial attack,
imposes a substantial obstacle to late-term, but previability,
abortions? No substantial obstacle.
- Act does not on its face impose a substantial obstacle, and we
reject this further facial challenge to its validity.
For the Act to be Unconstitutional
If its purpose or effect is to place a substantial obstacle in
the path of a woman seeking an abortion before the fetus attains
Previability and Postviability
The abortions affected by the Act's regulations take place both
previability and postviability;
So the quoted language and the undue burden analysis it relies
upon are applicable.
That Act proscribes a method of abortion in which a fetus is
killed just inches before completion of the birth process.
Where [the State] has a rational basis to act, and it
does not impose an undue burden, the State may use its
regulatory power to bar certain procedures and substitute
others, all in furtherance of its legitimate interests in
regulating the medical profession in order to promote respect
for life, including life of the unborn.
Whether the Act has the effect of imposing an unconstitutional
burden on the abortion right because it
does not allow use of the barred
procedure where "necessary, in appropriate medical
judgment, for the preservation of the . . . health of the
The Act does not impose an undue burden.
To Be Unconstitutional
If it the Act "subject[ed] [women] to significant health
Respondents Arg - Intact D&E is better for the mother.
Less cervical laceration or uterine perforation.
Requires fewer passes.
Reduces the risks that fetal parts will remain in the uterus.
State's interest in promoting respect for human life at all
stages in the pregnancy.
Physicians are not entitled to ignore regulations that direct
them to use reasonable alternative procedures.
The law need not give abortion doctors unfettered choice in the
course of their medical practice, nor should it elevate their
status above other physicians in the medical community.
- We retain an independent constitutional duty to REVIEW factual
findings where constitutional rights are at stake.
Respondents Arg - Barred produced must be for a health
- A zero tolerance policy would strike down legitimate abortion
The facial attacks should not have been entertained in the first
Respondents have not demonstrated the Act was void for
They did not demonstrated it imposed and undue burden on a
womans right to abortion.
Concur - Justice Thomas, Justice Scalia
The Courts abortion jurisprudence has not basis in the
DISSENT - Justice Ginsburg, Stevens, Souter, Breyer
The Court refuses to take Casey and Stenberg seriously.
It applauds federal intervention to ban a procedure found to be
necessary under certain circumstances by the American College of
Obstetricians and Gynecologists.
It blurs the line between post-and pre-viability abortions.
Moreover, the Act in question does not further the asserted
governmental interest of protecting the life of the fetus, for
the Act attacks merely the method of abortion, not the right of
No fetus is saved by operation of this Act.
The Court admits that "moral concerns" are at work, but still
finds the ban constitutional because the respondents failed to
show it would be unconstitutional in a large fraction of
But the very purpose of the health exception is to protect women
in those exceptional cases.
The absence of a health exception burdens all women for whom it
is relevant: women who, in their doctors' opinions, require an
intact D & E because other procedures would put their health at
Lack of mother's-health exception
This was the first time since Roe that the Court had "blessed a
prohibition with no exceptions safeguarding a woman's health."
"Regret" rationale criticized
Ginsburg also criticized the Court's "emotional distress"
rationale, that is, the theory that government was properly
acting to spare women the emotional pain of learning the details
of the procedure only after it had been carried out.
She pointed out that the Court was not permitting government to
require that women be accurately informed of the risks of the
procedure (something that Casey had already allowed); instead,
the Court was "depriv[ing] women of the right to make an
autonomous choice, even at the expense of their safety."
She concluded that "this way of thinking reflects ancient
notions about women's place in the family and under the
Constitution - ideas that have long since been discredited."
Finally, Ginsburg was deeply troubled by the majority's
insistence that as-applied challenges, rather than the present
facial attack, were the proper means to handle those cases where
women's health was in fact at stake.
Virtually all of the Supreme Court's post-Roe abortion cases had
been facial attacks.
She argued that forcing women to wait for as-applied challenges
"jeopardizes women's health and places doctors in an untenable
For instance, if a woman had a particular medical condition that
had not been the subject of a prior as-applied challenge, the
treating physician would not have any clarity about whether the
woman would have a constitutional right to have the
partial-birth procedure, and therefore the physician would risk
prosecution and imprisonment if she performed the procedure.
"Chip away" at right
Ginsburg closed by saying that the statute, and the Court's
defense of it, "cannot be understood as anything other than an
effort to chip away at a right declared again and again by this