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Supreme Court throws out Nebraska law banning controversial abortion procedure

The Nebraska law, struck down Wednesday by the Supreme Court, was challenged by Dr. Leroy Carhart, one of the state's three abortion providers

June 28, 2000
Web posted at: 5:40 p.m. EDT (2140 GMT)

By Raju Chebium
CNN Interactive Correspondent

WASHINGTON (CNN) -- The U.S. Supreme Court on Wednesday threw out a Nebraska law that banned a controversial and rarely used abortion procedure, potentially overturning so-called "partial-birth abortion" statutes in 30 other states as well.

The justices ruled 5-4 that the law places an "undue burden" on a woman's right to choose to end her pregnancy. Critics call the procedure "partial-birth abortion," under which the fetus is partially removed and its skull crushed. Doctors call the rarely used procedure dilation and extraction.

The nation's highest court said the Nebraska law potentially could outlaw all abortion procedures, including the most common "dilation and evacuation" method of terminating pregnancies.

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"Using this law some present prosecutors and future Attorneys General may choose to pursue physicians who use D&E procedures," Justice Stephen Breyer wrote for the majority. "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."

The Supreme Court's 1973 decision in the Roe v. Wade gives women the right to choose abortion. The court's 1992 Planned Parenthood v. Casey decision gave states the right to somewhat limit abortion as long as the restrictions did not impose an "undue burden" on women.

Wednesday, the court found in Stenberg v. Carhart that the Nebraska law did limit that right. Under the law, doctors who perform the procedure would lose their licenses and face felony charges, including up to 20 years in prison, a $25,000 fine, or both.

Justice John Paul Stevens said in a concurring opinion that critics decry the procedure as barbaric and tantamount to infanticide.

"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 ... has been endorsed by all but 4 of the 17 Justices who have addressed the issue," he wrote.

Justice Sandra Day O'Connor noted, "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."

Justices Ruth Bader Ginsburg and John Paul Stevens formed the rest of the majority.

President Clinton said the court's decision was the "only decision you could reach consistent with Roe v. Wade."

"In the next four years, there will be somewhere between two and four appointments to the Supreme Court. And, depending on who those appointees are, I think the rule will either be maintained or overturned," Clinton told a news conference.

Sensitive nature of abortion topic

Breyer acknowledged the sensitive nature of the abortion debate, almost apologizing for the coldly technical language describing various abortion procedures throughout much of the opinion.

"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," Breyer wrote.

"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," he added.

The dissent

Chief Justice William Rehnquist and Justices Anthony Kennedy, Clarence Thomas and Antonin Scalia disagreed with the majority.

Thomas said the Casey decision made it clear that not all abortion regulations 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," he concluded.

Scalia wrote, "The method of killing a human child ... proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion." Demanding a "health exception," he wrote, "is to give live-birth abortion free rein."

Kennedy objected on the basis that the court was undermining a state's right to decide what is a "critical and legitimate" abortion statute within its boundaries.

"The state's constitutional authority is a vital means for citizens to address these grave and serious issues," he wrote. "The legislation is well within the state's competence to enact."

The facts of the case

The case was argued in front of the Supreme Court on April 25. Nebraska appealed to the nation's highest court after an appeals court found that the 1997 statute was unconstitutional.

Last September, a federal appeals court struck down laws in Nebraska, Iowa and Arkansas banning the procedure, ruling the bans could apply to commonly used abortion procedures.

But in October, another appeals court upheld similar laws in Wisconsin and Illinois, saying the statutes could be narrowly enforced.

The Supreme Court agreed to take the case in large part because of the conflict between the two appeals courts.

Nebraska has not enforced the law pending appeals.

The Nebraska law was challenged by Dr. LeRoy Carhart, one of the state's three abortion providers and the only one who performed the controversial procedure. The 58-year-old physician's lawsuit named Don Stenberg, the state's attorney general.

Since 1995, Congress twice passed measures banning the procedure, but President Clinton vetoed them.

Reaction to the ruling

Pro-choice groups lauded the Supreme Court for reaffirming the core findings of Roe v. Wade.

"This so-called 'partial-birth' abortion ban was a direct assault on Roe v. Wade and the Supreme Court was right to reject it. Americans support Roe because they don't want the government or politicians interfering in this most private and personal decision," the National Women's Law Center said.

Planned Parenthood, Inc., expressed cautious optimism.

"While it looks like a victory, this is a beginning -- not the end. Anti-choice state legislatures and governors across the country will use this ruling as a blueprint for drafting new bans on abortion procedures -- laws which will soon be tested by the
Supreme Court once again," the group said.

Anti-abortion groups denounced the decision as wrong-headed and dangerous.

"It boggles the mind to think we live in a day when the highest court in the land sanctions a practice as gruesome and inhumane as what is described in this opinion," Focus on the Family said in a statement. "Americans should be up in arms."

American Life League said, "Ten, 15 or 20 years from now, today's Supreme Court decision will be cited to justify the selective termination of infants, toddlers, grandparents and the disabled," said American Life League.

The Associated Press contributed to this report.

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