*1 STENBERG, ATTORNEY GENERAL NEBRASKA, OF
et al. v. CARHART No. 25, 99-830. Argued April 2000—DecidedJune *4 J., delivered the opinion Breyer, Court, which Stevens, O’Connor, Sotjter, and Ginsburg, JJ., joined. Stevens, J., filed con- curring opinion, in which Ginsburg, J., joined, post, p. O’Connor, J., filed concurring opinion,post, 947. p. Ginsburg, J., filed a concurring *5 J., J., C. post, p. post, Stevens, Rehnquist, opinion, joined, which 951. J., post, p. p. 952, Scalia, Kennedy, and opinions. filed dissenting J., J., joined, post, p. C. Rehnquist, filed a dissenting opinion, in which Thomas, J., J., C. Rehnquist, filed a and dissenting opinion, which J., joined, post, p. 980. Scalia, Don se, ar- Nebraska, General of Stenberg, Attorney pro the cause for him the gued With on briefs was petitioners. L. Grosz, Steven General. Deputy Attorney
Simon Heller the cause for With him argued respondent. on the brief were Smith, Janet Priscilla Bonnie J. Benshoof, Jones, Scott M. and Alan G. Stolen* Jerry Hug, *Briefs of amici curiae urging reversal were filed for the State Loui- by Louisiana, siana et al. R Ieyoub, Richard A Attorney Roy General of Jr., Mongrue, Bordlee, General, Assistant Attorney Special Dorinda C. General, Moore, Assistant Attorney Mike Attorney General of Mississippi, Nikas, Nikolas T. and M. Stephen Crampton; by for the State of Texas Cornyn, General, John Attorney Andy Taylor, Attorney First Assistant General, Eads, Coleman, General, Linda S. Deputy Gregory S. Attorney General, Solicitor General; and Julie Caruthers Solicitor Parsley, Deputy for the State of Wisconsin by Attorney General, James E. Doyle, and Ullman, Susan K. Attorney General; Assistant for Agudath Israel of Zwiebel; America by David for the American for Law Center and Justice Sekulow, et al. by Jay Henderson, Sr., Alan Weber, James M. M. Walter Thomas Monaghan, III; P. Richard L. Thompson, and Edward White for the Association of Physicians American and et al. Surgeons by Teresa Collett; Linton; Stanton for Family by First Benjamin Paul for Feminists for Life of Duncan; America et al. by Dwight Knights G. for the of Colum- Pat by Anderson; bus A Cipollone and Carl A for the National Associa- Nurses, tion of Inc., Prolife by C. William Perth and Robert P. for George; the National Right to Life by Jr., Committee James E. Bopp, Richard Coleson, Marzen; and Thomas J. for the Rutherford by Institute Thomas Stratum, W. Whitehead, John Aden; W. and Steven H. for the United States Catholic Conference et al. by Mark E. Chopko Michael F. Moses; and for Representative Canady Charles T. by et al. James Bopp, Jr., Coleson, Richard E. and Thomas J. Marzen. amid, Briefs of curiae urging affirmance were filed the United States by Wateman, Solicitor General Deputy Solicitor General Under- wood, Q. Paul R. Wolfson, Rabb, Wilder, S. Harriet J. Marcy Kenneth Choe; Y. for the State of General, California Bill Lockyer, Attorney Peter J. Siggins, General, Chief Deputy Attorney Wynne, and Patricia A *6 Breyer of the delivered the Court. opinion
Justice
under-
We
consider the
to an abortion. We
again
right
stand
nature
of
controversial
Millions
problem.
Americans believe that life
and conse-
conception
begins
that an
the death of an
abortion is akin to
quently
causing
innocent
a law
child;
recoil at the
of
that would
they
thought
it. Other millions fear that a law that forbids abor-
permit
tion would condemn
lack
American women to lives that
many
them of
and
those
dignity, depriving
leading
equal liberty
with least resources
with the
abortions
undergo illegal
attendant
risks of death and
account of
suffering. Taking
Special
General;
Assistant Attorney
for the State of
York et al. by
New
Bansal,
Eliot Spitzer, Attorney General
Preeta
York,
D.
of New
Solicitor
Brown,
K
General,
General,
and
Andrew
Assistant Attorney
Jennifer
Ketterer,
Myers,
Maine,
General
Hardy
Attorney
of
Attorney General of
Sorrell,
and William H.
Oregon,
Vermont;
for the
Attorney General of
Weiss,
Civil
American
Liberties Union et al. by Catherine
Steven B. Sha-
Connell;
piro,
Colleen K.
and
for the American
of
College Obstetricians
Frank,
Hut,
and
Jr.,
L.
A. Stephen
et
Adam
Gynecologists
by
al.
and
Brill;
Matthew A.
P. Joseph,
for
James
by
the Naral
et al.
Foundation
Perkins,
Nancy L.
Amdoifer;
Elizabeth
and
for
Planned Parenthood of
Evans,
Gartner,
Wisconsin
Roger
Klassel;
K.
by
et al.
Eve G.
and Dara
Religious
Coalition for Reproductive Choice et
Carrie
Y.
by
al.
Flaxman; for Seventy-five Organizations
Equality
Committed to Women's
Frietsche,
by Susan
Davis,
Powell,
Carol E. Tracy,
F.
Roslyn
Martha
and
Wu;
Yolanda S.
Lewin,
and for
Robert
Senator Barbara
by
Boxer et al.
Cumin,
Kevin J.
Claude G. Szyfer, and Robert Abrams.
Briefs of amici
curiae were filed
by
of Virginia
the Commonwealth
et al.
by Mark L. Earley, Attorney
Hurd,
H.
Virginia, William
General of
So-
General,
licitor
and Daniel J. Poynor, Alison P. Landry, and Anthony
Meredith,
P.
Richards,
Assistant
Claire J. V.
General,
James
Attorneys
Jr.,
Bopp,
Coleson,
Marzen,
Richard E.
Collier, Jr.,
Thomas J.
Richard F.
and
Attorneys
States as follows: Bill
respective
General for their
Pryor
Alabama,
of
Alan G.
Lance of
Idaho,
Ryan
James E.
Illinois,
of
Thomas
J. Miller of
Iowa,
M. Granholm of Michigan, Heidi Heit-
Jennifer
kamp
of
Dakota,
North
Betty
Montgomery
D.
D. Michael Fisher
Ohio,
of
of Pennsylvania, Charlie
Condan of South
Mark
Carolina,
Barnett
of
Dakota,
South
Jan Graham Utah;
and for
Family
Research
Council by Teresa R. Wagner.
virtually
these
points
irreconcilable
view,
aware that con-
govern
stitutional law
society
must
whose different mem-
sincerely
bers
directly
hold
opposing
considering
views, light
matter
guarantees
the Constitution’s
of funda-
mental
liberty,
individual
this Court, in the
gen-
course of a
eration, has determined and then redetermined that the Con-
stitution
protection
offers basic
right
woman’s
choose. Roe
(1973);
v. Wade,
Three principles established determine the issue before us. We shall set them forth in language the joint opinion Casey. First, "viability... before the right woman has a to choose to terminate her pregnancy.” (plural- Id., at 870 ity opinion). "a designed
Second, law to further the State’s interest in fetal life imposes which an undue burden on the woman’s decision before fetal viability” is Id., unconstitutional. 877. An "undue burden is ... for shorthand the conclusion regulation a state has the purpose placing or effect of a substantial obstacle path in the seeking a woman an abor- tion of a nonviable fetus.” Ibid. “ ‘subsequent Third, viability, promoting State in its interest in the potentiality of human may, life if it chooses, regulate, and proscribe, even except abortion where it is nec- essary, in appropriate judgment, medical preserva- ” tion of the life or health of Id., mother.’ (quoting at 164-165). Roe v. supra, Wade, apply
We principles these to a “par- law banning Nebraska tial birth abortion.” The statute reads as follows: partial
“No birth performed abortion shall be in this state, unless such neeessary to save life of the mother endangered whose life is by physical a physical disorder, physical injury, illness, or including a life-endangering physical condition caused or aris-
ing Rev. Stat. Ann. pregnancy itself.” Neb. from the §28-328(1) 1999). (Supp. as: “partial birth abortion”
The statute defines person performing procedure which the “an abortion living vaginally a unborn partially delivers completing the killing child and child the unborn before 28-326(9). § delivery.” living vaginally a un- “partially
It further defines delivers killing to mean child” born child before the unborn delivering into the va- “deliberately intentionally portion living a gina child, or substantial a unborn procedure that performing a purpose thereof, for the will kill performing knows person such Ibid. the unborn child.” child and does kill unborn fel- as “Class III statute a The law classifies violation of the up years, ony” carrying prison up and fine to 20 term of §§28-328(2), provides for It also $25,000. 28-105. practice medi- license automatic revocation of a doctor’s 28-328(4). § cine in Nebraska.
We hold that this statute violates the Constitution.
HH
<j
Leroy
performs
physician who
Dr.
Carhart is a Nebraska
setting.
brought this lawsuit
abortions in a clinical
He
seeking
the Ne-
Federal District Court
a declaration
asking
Constitution,
braska statute violates the Federal
injunction forbidding
a trial
for
After
an
its enforcement.
during
presented several
on the
which both sides
merits,
expert
uncon-
held the statute
witnesses, the District Court
(Neb. 1998).
appeal, the
Supp.
11F.
2d 1099
On
stitutional.
(1999); Hope
Eighth
cf.
Circuit
192 F. 3d
affirmed.
(consider-
1999)(en banc)
(CA7
Ryan,
Clinic v.
B Because Nebraska law seeks ban one method of abort- ing a pregnancy, we must describe and then discuss several different procedures. Considering the fact that procedures those seek to terminate a potential human life, our may discussion seem clinically cold or callous to some, perhaps horrifying to others. There no way, is alternative acquaint however, to the reader with the technical distinc- among tions different abortion methods related factual upon matters, which the outcome of this depends. ease For that reason, drawing upon findings of the trial court, underlying testimony, and related medical texts, we shall describe the relevant methods of performing abortions technical detail.
The evidence before the trial court, as supported sup- or plemented in the literature, the following: indicates
1. About 90% of all performed abortions in the United place States take during the first pregnancy, trimester of before 12 gestational weeks of age. Centers for Disease Control and Prevention, Abortion Surveillance—United p. States, 1999) (hereinafter 1996, (July Abortion Surveillance). During the first predominant trimester, the abortion method is aspiration," “vacuum which involves in- sertion (cannula) of a vacuum tube into the uterus to evacu- ate the contents. Such an abortion is typically performed on outpatient basis under local Supp. anesthesia. F. 2d, at 1102; Obstetrics: Normal & Pregnancies Problem (S. 1253-1254 Niebyl, Gabbe, J. Simpson & J. eds. 3d ed. 1996). aspiration Vacuum particularly considered safe. procedure’s mortality rates for first trimester abortion ai'e, example, 5 to 10 times lower than those associated *9 with carrying the fetus to Complication term. rates are also low. Id., at 1251;Lawson al., et Mortality, Abortion United Gynecol. 1365, through Obstet. 171 Am. J.
States, 1972 (1994); Medical Guide al., A Clinicians Paul et M. (hereinafter (1999) Medi- Surgical Abortion 108-109 and Abortion). grows size, how- the fetus Surgical As cal and increasingly aspiration method becomes ever, the vacuum Supp. 1102-1103; Obstetrics: 2d, 11 F. difficult use. Pregnancies, supra, at 1268. & Problem Normal performed dur- Approximately are 10% of abortions 2. all weeks). (12 pregnancy ing the trimester of second inducing early 1970’s, In Abortion 41. Surveillance was injection into the uterus through saline labor 8; Id., at abortion. predominant of second trimester method 428 U. S. Mo. v. Danforth, Planned Parenthood Central (1976). profession has Today, medical however, the 52, 76 surgical proce- labor to induction of switched from medical most com- abortions. dures for most second trimester monly evacuation” “dilation and procedure is called used (D&E). form (together modified with a That trimester) early aspiration second used in the of vacuum from performed 95% of all abortions accounts about 41. gestational age. Abortion to 20 weeks of Surveillance procedures generically to transcervieal D&E “refers Medi- performed gestation at 13 weeks or later.” American Late-Term Report on cal Trustees Association, Board (hereinafter Report). The AMA AMA App. Abortion, process Report, adopted by describes Court, the District as follows. gestation: and
Between 13 15 weeks of except aspiration “D&E is similar to vacuum surgical widely in- cervix be because dilated more must of tissue. larger pieces struments are used to remove usually fluids used. Intravenous Osmotic dilators are A analgesic may or be administered. sedative may paracervical be block local such anesthetic dilating agents, if are removed administered, used, into the through the cervix inserted instruments are *10 placental fetal and tissue. Because uterus removal easily may broken, and fetus fetal tissue friable are removed intact. The walls of uterus not be scraped that no tissue with a curette ensure remains.” 490-491. Id., at
After weeks: larger stage gestation this the fetus is at “Because head), (particularly the and because bones are more rigid, procedures or dismemberment other destructive likely required gestational are more to be than earlier ages placental Id., and remove fetal tissue.” After weeks: physicians potassium
“Some use intrafetal chloride or (after digoxin prior to a to induce fetal demise late D&E weeks), to Id., facilitate evacuation.” at 491-492. operative strategy; compare There are variations in D&E ibid, (1984), Hern, with W. Abortion Practice 146-156 Surgical Medical and Abortion the com- However, 133-185. (1) points mon are that D&E involves dilation of the cervix; (2) using removal of at least some fetal tissue nonvacuum (3) (after week) potential 15th instruments; need for instrumental disarticulation or dismemberment of the collapse parts fetus or the of fetal to facilitate evacuation from uterus.
4. When instrumental disarticulation incident to D&E is necessary, typically pulls portion occurs doctor through the fetus the cervix into the birth canal. Dr. Car- hart testified at trial as follows:
“Dr. Carhart:.. . ‘The dismemberment occurs between my the traction of ... instrument and the counter- traction the internal os of the cervix.... you
“Counsel: ‘So the dismemberment occurs after pulled part through of the fetus cervix, is that correct? “Dr. ‘Exactly. you’re Carhart: using Because cer- —The
vix has two rings, strictures or two the internal os and the external os . . . that’s actually doing what’s dismembering....
“Counsel: ‘When we talked or before talked before about a D&E, that is there not—where is not intention *11 to do it you, intact, do in that situation, dismember the fetus útero first, then portions? remove “Dr. Carhart: T don’t think I so.... any don’t know of way go that one could intentionally in and dismember fetus the uterus. ... It takes something that restricts the motion against of the fetus you’re what ” doing you’re before get going to dismemberment.’ Supp. F. 2d, at 1104.
Dr. specification Carhart’s of the location of fetal disarticula- tion is consistent with other sources. See Medical and Sur- gical App. Abortion 135; in Nos. (CA8), 98-3245 and 98-3300 p. 683, (testimony Stubblefield) of Phillip Dr. (“Q: you So don’t actually dismember the fetus in útero, then take the pieces No”). out? A:
5. The procedure D&E carries certain risks. The use of instruments within the danger uterus creates a of accidental perforation damage and to neighboring organs. Sharp fetal fragments bone dangers. create similar And fetal ac- tissue cidentally left behind can cause infection and various other complications. See Supp. 11F. 2d, Gynecologic, 1110; at Ob- (D. stetric, and Surgery Related 1045 Nichols & D. Clarke- Pearson 2000); eds. 2d ed. Cunningham F. et al., Williams (20th 1997). Obstetrics ed. Nonetheless studies show that the risks of mortality complication and that accompany D&E between the 12th and 20th ges- weeks tation are significantly lower than accompanying those in- (the duced procedures labor next safest midseeond trimester procedures). See Gynecologic, Obstetric, and Related Sur- gery, supra, at 1046; Report, AMA App. 495, 496; Medical Surgical 139,142; Abortion Lawson, Am. J. Obstet. Gynecol., at 1368. trial,
6. At Dr. and Dr. Carhart Stubblefield described a procedure, they variation D&E which referred Supp. “intact 2d, D&E.” See F. lili. Like other technique, begins of the D&E versions with induced dilation of the cervix. The then involves remov- ing the through fetus from the uterus the cervix “intact,” pass, passes. e., i. in one rather than in several Ibid. It is used after 16 aspiration weeks as vacuum earliest, becomes large ineffective and the fetal skull becomes too pass through the Id., pro- cervix. at 1105. The intact D&E ways, ceeds in depending one two presentation on the (a presents fetus. If fetus presen- head first vertex tation), the collapses doctor skull; the doctor then through extracts the entire fetus cervix. If the fetus (a presents feet presentation), first pulls breech the doctor body the fetal through collapses the cervix, the skull, and *12 through extracts the fetus the cervix. Ibid. The breech extraction version of the intact D&E is also known com- monly as “dilation and extraction,” Id., or D&X. at 1112. In the late second trimester, vertex, breech, and traverse/ compound (sideways) presentations roughly occur similar proportions. Surgical Medical and Supp. Abortion 135;11F. 2d, at procedure
7. The intact D&E can also be found described in certain obstetric and abortion clinical textbooks, where two recognized. variations are just The first, described, physician calls adapt for his extracting method for depending intact presentation. fetus Gyneco- on fetal See logic, and Surgery, supra, Obstetric, Related at 1043;Medical Surgical and Abortion 136-137. by This is the method used Dr. Supp. Carhart. See 11F. slightly 2d, 1105. A differ- ent procedure, version the intact D&E with associated Dr. Martin Haskell, calls for presenta- conversion a breech tion in Gynecologic, all cases. See Obstetric, Related
Surgery, supra, (citing at 1043 Haskell, M. Dilation and Ex- traction for Late (1992), Second Trimester Abortion in 139 (1993)). Cong. Ree. 8605
8. The College American Gynecolo- Obstetricians and gists describes the D&X correspond- a manner ing to a breech-conversion intact D&E, including the follow- ing steps:
"1. deliberate dilatation of the usually cervix, over a sequence days;
“2. instrumental conversion footling of the fetus to a breech;
“3. breech body extraction of excepting the head; partial “4. evacuation of the intracranial contents of living fetus vaginal to effect delivery of a dead but otherwise intact fetus.” College American of Obste- tricians and Gynecologists Board, Executive Statement on (Jan. Intact 1997) Dilation (here- and Extraction Statement), inafter ACOG App. 599-560.
Despite the technical just differences we have described, in- tact D&E and D&X are sufficiently similar for tous use the terms interchangeably.
9. Dr. Carhart testified he attempts to use the intact D&E during (1) weeks 16 to 20 because it reduces dangers sharp from fragments bone passing through the (2) cervix, minimizes the number passes of instrument needed for extraction and lessens the likelihood of uterine perforations (3) caused those instruments, reduces likelihood leaving infection-causing placental fetal and tis- *13 (4) sue in the uterus, and help could prevent potentially absorption fatal of fetal tissue into the maternal circulation. See 11 Supp. F. 2d, at 1107. The District Court made no findings about procedure’s the D&X safety. overall Id., at 1126, n. 39. The District Court concluded, however, that “the evidence is both clear and convincing that Carhart’s
929 superior to, D&X than, safer the ... other procedures during gestational used pe- the relevant ” year present riod in 10 to 20 eases a to Dr. Garhart Id., at 1126. presented The
10. poten materials at trial referred to the tial benefits of the D&X in circumstances involv ing nonviable such as fetuses, fetuses with abnormal fluid accumulation in the brain (hydrocephaly). Supp. See F. (“ (quoting Report, App. 2d, AMA 492 ‘Intact D&X may preferred by physicians, be particularly some when the diagnosed fetus has been hydrocephaly with or other anoma incompatible ”)); lies with life outside see also womb’ Continuing Grimes, The Need for Late Abortions, 280JAMA (D&X 1998) (Aug. “may 26, especially be useful in presence of fetal hydrocephalus,” such anomalies, be cause its reduction of the “a cranium allows smaller diameter pass through reducing cervix, thus risk of cervical injury”). emphasized potential Others have its for women prior with uterine or sears, for women for whom induction particularly dangerous. labor would be See Women’s Corp. Medical v. Supp. Voinovich, 911 F. 2d Professional (SD 1995); Kelley, 1051, 1067 Ohio Evans Supp. v. 977 F. 2d (ED 1997). 1283, 1296 Mich. There are no reliable data on the number D&X abor- performed annually.
tions ranged Estimates have between year. per 5,000 Compare Henshaw, Abortion Inci- dence and Services in the States, United 1995-1996,30 Fam- ily Planning (1998), Perspectives 263,268 Hearing with Joint on 6 and S. H. 929R. before the Senate on Committee Judiciary and the Subcommittee on the Constitution of the Judiciary, House on Cong., Committee 105th 1st Sess., (1997).
II
question
before us is whether
statute,
Nebraska’s
making
performance
“partial
criminal
aof
birth abor-
tion,” violates the
interpreted
Federal Constitution, as
*14
Planned Parenthood
Casey,
Southeastern Pa. v.
U.
505 S.
of
(1992),
(1973).
and Roe v. Wade,
the... health of the
Casey,
mother.’
(plu
A Casey plurality The opinion reiterated what the Court held “ in Roe; that ‘subsequent viability, promoting in State its interest in potentiality of may, human life if it chooses, regulate, proscribe, and even except abortion where it nec- essary, in appropriate judgment, medical preserva- tion or health the mother.’” 505 S.,U. at life (quoting 164-165) supra, Roe, added). (emphasis
The fact that law applies Nebraska’s both previability and postviability aggravates the problem pre- constitutional sented. The State’s interest in regulating previa- abortion bility is considerably postviability. weaker than Casey, See supra, at requires Since the law exception a health order to validate postviability even a regulation, at a requires minimum respect same previability regulation. Casey, See supra, (majority opinion) (assuming need for exception health previability); see also Harris v. (1980). McRae, 448 U. S. 297, 316 quoted depends standard also regulations on the state “promoting [the State’s] interest in potentiality of human life.” The Nebraska law, of course, directly does not further an interest “in the potentiality life” saving human question fetus in from regulates destruction, as it only a method of performing abortion. Nebraska describes in- its “ terests differently says It ‘show[s] the law concern for the ” life of the “prevents] unborn,’ cruelty partially chil- born profes- “preserved] integrity dren,” and of the medical sion.” Brief for But we see how the Petitioners 48. cannot *15 any to the interest-related differences could make difference question namely, application hand, of the “health” requirement.
Consequently, requires excep- governing standard necessary, judgment appropriate tion “where it is in medical preservation for the mother,” of the life or health of the Casey, supra, at 879, has made clear that a for this Court may promote endanger State health when but not a woman’s regulates Thornburgh it v. Ameri- methods of abortion. College Gynecologists, can 476 U. S. Obstetricians and (1986); 747, 768-769 v. 400 Franklin, Colautti U. S. (1979); S., Bolton, Danforth, 76-79; U. Doe v. U. S. (1973). 179, 197 says just that the cases this cited limit
Justice Thomas principle pregnancy to situations where the a creates itself post, wrong. threat to health. at 1010. He The See Casey, recognize cited eases, reaffirmed in that a State can- subject not significant women’s health to risks both in that regulations context, and also force where state women to repeatedly use riskier methods of abortion. Our cases have regulating process invalidated statutes that in imposed significant They methods of abortion, health risks. make clear that a risk to a women’s health is same happens particular whether it regulating to arise from a barring entirely. method of or from abortion, abortion Our holding go beyond Casey. does not those cases, ratified responds
Nebraska require that the law not does a health exception unless a exception. there is need for such an And here says. there is no argues need, such It that “safe alternatives partial-birth remain available” and “a ban on abortion/D&X would create no risk to the health of women.” Brief for problem Petitioners The 29, 40. for Nebraska is parties that the strongly contested question this factual the trial court findings and the below; support evidence Dr. Carhart. State fails to demonstrate banning D&X exception without health may not significant create health risks for women, because the record sig- shows that nificant medical authority supports proposition that in some circumstances, D&X would be the procedure. safest
We shall summary reiterate in form the relevant findings and evidence. On the basis of testimony medical the Dis- trict Court concluded that “Carhart’s D&X is ... tha[n] safer the D&E and other procedures used during the gestational relevant period in the 10 to 20 eases year present to Dr. Carhart.” 11F. Supp. 2d, at 1126. It found that the D&X permits the fetus pass *16 through the cervix with a of minimum instrumentation. thereby
Ibid. It operating “reduces time, blood and loss risk of infection; complications reduces fragments; from bony reduces damage instrument-inflicted to the uterus and cervix; prevents the most common causes of mortality maternal (DIC and embolus); amniotie fluid and eliminates the possibility of complications’ ‘horrible arising from re- parts.” tained fetal Ibid.
The District Court also noted that panel a select College American of Obstetricians Gynecologists con “ cluded ‘may that D&X be the best or appropriate most pro cedure particular in a circumstance to save pre life or ” serve health of a woman.’ Id., at (quoting 1105, n. 10 600-601) (but ACOG App. Statement, see important qual 934). ification, at infra, exception, With one the federal trial courts that expert have heard evidence on the matter have reached similar factual conclusions. See Rhode Island Medical Soc. v. (RI Whitehouse, Supp. 66 F. 2d 288, 314 1999);A . Choice Women v. Butterworth, Supp. 54 F. 2d for (SD 1998); 1148, 1153,1156 Fla. Causeway Medical Suite v. Supp. (ED Foster, 48 F. 2d 604, 613-614 1999); La. Richmond
933
Supp.
795,
2d
Gilmore, 11 F.
v.
Center Women
Medical
Supp.
(ED
Ryan,
1998);
F.
Hope
995
v.
Clinic
Va.
n. 40
827,
(CA7 1999),
(ND 1998),
F. 8d
vacated, Ill.
847, 852
2d
Supp. 2d, at
F.
Voinovich, 911
pending,
99-1152;
cert.
No.
Planned
Kelley,
Supp.
1296;but see
2d,
F.
1069-1070;
(WD
Supp.
Doyle,
2d
44 F.
v.
Parenthood Wis.
1999).
(CA7
Wis.),
“little-used,” (3) induction and labor argues that D&E It Petitioners 32. at 36. procedures.” Id., “safe alternative are at all times expert, who testimony petitioners’ medical to the It refers (4) risk woman’s increase a ban would not testified that the (disseminated intra- complications rare of several embolus), id., 37; coagulopathy amniotie fluid vascular App. 642-644. Surgeons Physicians and of American
The Association (5) argue elements supporting Nebraska, al., et amici including cervi- may risks, special create the D&X injury caused by overdilitation, incompetence cal caused arising dangers presentation, and fetal conversion pierce the fetal from the “blind” of instrumentation use *17 lodged Brief for Associa- birth canal. See skull while in the Physicians Surgeons et al. as Amici tion of American Ban- Rationale for Sprang Neerhof, see 21-23; Curiae also & (Aug. ning Pregnancy, 744,746 Late 280 JAMA Abortions 26,1998). (6) emphasizes are medical that there no
Nebraska further safety “establishing partial-birth abortion/ the studies the procedure,” “no medical 39, and D&X Brief for Petitioners safety partial-birth comparing abortion/D&X studies the points id., 35, procedures,” to, It other abortion ibid. (7) an American Medical policy Association statement that “‘there appear does not any to be identified situation which intact only D&X is the appropriate procedure to in- duce abortion,’” Late Term Pregnancy Termination Tech- niques, (1997). Policy AMA (8) H-5.982 points And it out that the College American Gynecolo- Obstetricians and gists qualified its statement that “may D&X be the best or most appropriate procedure,” by adding that panel identify “could no circumstances [the under which D&X] procedure . . . would be only option to save the or life preserve the health App. woman.” 600-601.
We eight find arguments these insufficient to demonstrate that Nebraska’s law no needs exception. health For one thing, arguments certain of the are point. beside the procedure’s D&X (1)) rarity relative (argument highly not relevant. The D&X infrequently is an used proce- dure; but the exception health question is pro- whether tecting women’s requires health an exception for those infrequent rarely A occasions. used might treatment be necessary to treat rarely occurring disease that could strike anyone prohibit State cannot a person from —the ob- taining simply treatment by pointing out people most do not need it. Nor can we know whether the fact a “handful” of doctors use the (2)) (argument re- flects the comparative rarity of late second term abortions, procedure’s development, recent Gynecologic, Obstetric, and Related Surgery, at controversy surrounding it, or, suggests, Nebraska procedure’s utility. lack of For thing, another responds (and record to Nebraska’s amici’s) medically arguments. based respect In argu- (3), ment example, agreed District Court that alterna- tives, such as D&E and induced labor, are “safe” but found that the D&X method was significantly in certain cir- safer cumstances. 11 Supp. F. 2d, at 1125-1126. In respect to *18 (4), argument the District simply- Court relied on different “ expert testimony testimony stating ‘[a]nother advan- — tage of the Intact D&E is it eliminates the risk of embo- ” lism of cerebral tissue into the woman’sblood stream.’ Id., (quoting Hearing on H. R. 1833 before the Senate on Committee the Judiciary, Cong., (1995) 104th 1st Sess., 260 (statement Hern). of W. response (5),
In argument amici’s College American of Obstetricians Gynecologists, and in its own amici brief, denies that generally poses D&X greater risks than the al- says ternatives. It that the suggested proce- alternative greater dures involve similar or risks of cervical uterine and. injury, procedures, for “D&E involve similar amounts of dili- tation” and “of course childbirth greater involves even cervi- cal dilitation.” Brief for College American of Obstetricians Gynecologists et as al. Amici Curiae 23. The College points out that Dr. Carhart does not reposition the fetus thereby avoiding any stemming risks from conversion to presentation, breech compared and that, as with D&X, D&E involves the greater, same, if not sharp “blind” use of instru- ments cavity. uterine Id., at 23-24. quarrel
doWe not argument with (6), Nebraska’s right. Nebraska general There are no medical studies documenting comparative safety. Neither deny do we import of the American Medical Association’s statement (7)) (argument though the State does omit —even the remain- der of that statement: “The AMA recommends that pro- cedure not be used procedures unless pose alternative mate- rially greater risk to the woman.” Late Term Pregnancy Techniques, Termination Policy AMA (emphasis H-5.982 added). We cannot, however, read the College American of Obste- tricians Gynecologists (that panel’s qualification it could “identify” not a circumstance where “only” D&X was the life- or health-preserving option) according if, to Nebras- argument (8), ka’s potential denied the health-related need *19 for D&X. That is because the writes the College following in its amici brief: on the
“Depending skill and physician’s experience, the D&X ean be the most abor- appropriate tion for some in women some circumstances. D&X a presents of variety potential safety advantages over other abortion procedures used during same gestational period. to D&Bs Compared dis- involving memberment, D&X involves less risk of uterine perfora- tion or cervical laceration because it requires physi- cian to make fewer into the passes uterus with sharp instruments and reduces of presence fetal sharp bone fragments that ean injure uterus and cervix. There is also considerable that evidence D&X reduces the risk of retained fetal tissue, a serious abortion com- that plication ean cause maternal death, and that D&X reduces the incidence of a 'free fetal head that floating’ can be difficult for a physician grasp remove and ean thus cause maternal That injury. D&X procedures take less usually time than other abortion methods used at a comparable stage can also have pregnancy health The advantages. shorter the procedure, the less blood loss, trauma, and exposure anesthesia. The intuitive safety advantages intact D&E are clini- supported by cal experience. for Especially women with particular health conditions, there is medical evidence that D&X safer may be than available alternatives.” Brief American College Obstetricians and Gynecologists et al. as Amici Curiae (citation 21-22 and footnotes omitted). is a upshot District Court finding D&X signifi- obviates
cantly health in risks certain circumstances, highly plausible reeord-based explanation why might be so, a division of some opinion among medical experts over generally whether D&X safer, and absence of controlled help medical ques- studies that would answer these medical medically evidentiary tions. these Given related circum- requires exception. stances, we the law believe health “necessary5’ Casey’s phrase “necessary, The word in
appropriate judgment, preservation medical for the (internal life mother,” or health of the quota- S., 505U. at 879 omitted), tion marks necessity cannot refer to an absolute or absolute proof. procedures Medical treatments and are (or appropriate inappropriate) light often considered of es- *20 (and benefits) comparative timated par- health in risks health phrase unanimity ticular require cases. Neither can that opinion. medical Doctors often differ in their estimation comparative appropriate health risks and treatment. And Casey’s “appropriate judgment” words embody medical must judicial responsible the need to tolerate differences of medi- opinion cal of a that sort the American Medical —differences College Association Gy- and American of Obstetricians and necologists’ together present statements indicate are here. thing,
For another the division opinion of medical about the uncertainty, matter at most signals means a factor that presence the its risk, not absence. That here division in- highly qualified knowledgeable experts volves both on sides significant of the issue. body Where a opinion of medical procedure may a bring greater believes safety with it patients explains some medical supporting reasons say that presence view, we cannot that of a different proves contrary. view uncertainty itself Rather, significant means a likelihood that those who believe that D&X is a safer abortion method in certain circumstances may right. turn to out be so, If then the absence of a health exception place unnecessary tragic will women anat risk consequences. they health wrong, If exception are will simply turn out to unnecessary. have been
In sum, Nebraska has not convinced us that a health
exception
necessary
is “never
preserve
the health of
women.”
Brief for Petitioners
Reply
Rather,
a statute
forbids
altogether
D&X creates a
health risk.
significant
The statute
must
a
contain
health
consequently
exception.
This is not
as Justice
say,
and Justice
Thomas
Ken-
nedy
claim, that a State is
from
an
prohibited
proscribing
abortion procedure whenever
a
deems
particular
physician
the procedure
no
preferable.
must a
means
By
State grant
physicians “unfettered
in
discretion”
their
of abor-
selection
Post,
tion
methods.
at 969 (Kennedy,
But
dissenting).
J.,
where substantial medical
authority supports
proposition
banning
particular
abortion procedure could endanger
women’s health,
Casey requires
the statute
include a
health
when
exception
in
“'necessary,
ap-
propriate medical
for the
judgment,
of the life
preservation
or health of the mother.’”
B Circuit Eighth found the Nebraska statute unconstitu- tional because, Casey’s words, it has the “effect of placing a substantial obstacle of a path woman seeking *21 abortion of a nonviable Id., fetus.” at 877. It thereby an places “undue burden” a woman’s upon to terminate right her before pregnancy Ibid. viability. Nebraska does not that deny the statute imposes an “undue burden” it applies if to the more used commonly D&E as well as to D&X. And we agree with the Circuit Eighth that does so apply.
Our earlier discussion of the D&E procedure, supra, 924-926, shows that it falls within the statutory prohibition. The statute forbids “deliberately intentionally delivering into the a vagina unborn living child, or a substantial portion thereof, for the of purpose a performing person such performing procedure knows will kill the unborn child.” Neb. Rev. §28-326(9) 1999). Stat. Ann. We (Supp. do not understand how distinguish, one using could this lan- (where guage, between D&E a through foot or arm is drawn cervix) (where and D&X body up to the head is cervix). through drawn Evidence before the court trial makes clear that D&E will physician often pulling involve a a “substantial portion” of a living say, still fetus, an arm or leg, vagina into prior to the death the fetus. 11 F. Supp. 2d, at 1128;id., at 1128-1130. Indeed D&E involves commonly dismemberment that occurs when the fetus meets resistance that restricts the motion of the fetus: “The dismemberment occurs between the [the] traction of... in- strument and the counter-traction the internal ofos cervix.” Id., at 1128. And these events often do not occur portion until after a living pulled a fetus has been into the vagina. Id., at 1104;see also Surgical Medical and Abortion 135 (“During the separation mid-second trimester, of the corpus fetal may occur when the is fetus drawn into the lower segment, uterine compression where and traction against the disarticulation”). endoeervix facilitates
Even if the statute’s basic aim to language ban D&X, its makes clear that it also covers much category broader procedures. language does not track the medical differ- ences between D&E though it would have been D&X— simple for example, matter, provide exception for the performance of D&E and other procedures. g., E. §65-6721(b)(l) Kan. 1999). Stat. Ann. (Supp. Nor does anywhere statute suggest application its turns on a'portion whether body fetus’ vagina is drawn into the part process as of a to extract an intact fetus collapsing after the head opposed process to a that would dismember fetus. Thus, the argument dissenters’ that the gen- law was erally intended to bar D&X can be both correct and irrele- vant. The question relevant is not legislature whether the wanted to ban D&X; it is whether the law was intended to *22 apply only to D&X. plain language The proce- covers both dures. A rereading of opinion, supra, this at 924-929, as 940 post, will make dissent, 984-987,
well as Justice Thomas’ why statute, clear of this difference, we can find no terms pro- between the as D&E D&X described (In compare might particular, performed. cedure as it be post, dissenting), post, with at 986- (THOMAS, J., at 984-986 dissenting).) procedures involve can 989 Both J., (Thomas, living portion” of a still the introduction of “substantial very through vagina feature fetus, into the cervix, —the characterize of an abortion that leads Justice Thomas involving “partial such a as birth.” argues Attorney that the General Nebraska State procedures. He statute does between the two differentiate says statutory portion” that the mean words “substantial up consequently stat- “the child to the He denies the head.” application physician into the ute’s where introduces leg anything than the entire birth canal a fetal arm or less or body. argues fetal He further Brief for Petitioners 20. meaning must we defer to his views about the Id., state statute. 12-13. accept narrowing Attorney cannot in-
We General’s terpretation of the case Nebraska statute. This Court’s Attorney give law makes clear not that we are weight. interpretative controlling General’s For one views thing, normally this in- Court lower federal-court follows terpretations County, of state v. law. McMillian Monroe (1997); Spokane 781, Arcades, 520 U. S. Brockett v. (1985). “rarely Inc., 491, U. S. It reviews a 500, n. agreed upon construction lower of state law two Virginia Assn., federal courts.” Booksellers v. American (1988). Inc., the two lower ease, U. S. In this rejected Attorney courts have both narrow- General’s ing interpretation. precedent against accepting
For our another, warns Attorney interpretation “authoritative” General’s Attorney state law when “the does not bind General state or Ibid. courts local law enforcement authorities.”
941
Under Nebraska law,
Attorney
interpreta
General’s
tive views do not bind the state courts. State v. Coff
man,
Nor can say we that the lower courts used the wrong legal standard in assessing Attorney General’s inter- pretation. Eighth The recognized Circuit “duty its give [the law] a construction . . . that would avoid constitutional doubts.” 192 F. at 3d, 1150. It nonetheless concluded Attorney General’s interpretation would “twist the words of the give law and them a meaning they cannot reasonably bear.” Ibid. Eighth The Circuit is far from alone in rejecting such a narrowing interpretation. language question is based on model statutory language (though some States any omit further definition “partial abortion”), birth which 10 lower federal courts have consid- ered on the merits. All 10 of those courts (including Circuit) Eighth have found the language potentially appli- cable to other procedures. See Planned Parent- hood Greater Iowa, Inc. (CA8 v. Miller, 195 F. 3d 1999);Little Rock Family Planning Jegley, Services v. (CA8 F. 3d 794, 1999); 797-798 Hope Clinic, 195 F. 3d, at 865-871 (imposing precautionary injunction prevent application beyond D&X); id., at (Posner, 885-889 C. J., dissenting); Rhode Island Medical Soc., 66 Supp. F. 2d, at 309-310; Richmond Medical Center Women, 55 for Supp. 2d, at Women, 54 F. A471; Choice Supp. 2d, F. 614-615; Supp. 2d, Causeway Suite, 43 F. Medical 1155; F. Verniero, N. J. v. Central Parenthood Planned (NJ Stengel, 28 1998); Eubanks v. Supp. 2d 503-504 (WD 1998); Ky. Par- Planned 1024, 1034-1035 Supp. 2d F. Supp. 2d Woods, 982 F. Ariz., v. Inc. Southern enthood of *24 (Ariz. 1997); Supp. 1317; at 2d, Kelley, 977 F. 1378 1369, 144 3d Gilmore, F. v. Center Medical but Richmond ef. 1998) stay). (CA4 granting (Luttig, J., 330-332 326, Attorney grant the Gener we even were Regardless, reject his weight,” we still have views "substantial al’s statutory language the with interpretation, it conflicts for by Attorney General, echoed supra, 940. The at discussed relying language tries to overcome dissents, particular, the words language statute; in the on other with ordinarily associated abortion,” a term "partial birth vagi “partially delivers procedure, and the words the D&X §28- Ann. Rev. Stat. nally living child.” Neb. a unborn 1999). 326(9) help the At cannot (Supp. But words these further statute’s subject to the They torney are General. terms specifying that both explicit statutory definition, living child, vagina unborn a “delivering into include a statute Ibid. When portion thereof.” or a substantial that defini must follow explicit definition, we includes an meaning. ordinary term’s if from that tion, even varies (“It (1987) is axio Keene, 465, 484-485 481 U. S. Meese v. term excludes statutory of the definition matic term”); Franklin, v. meanings Colautti of that unstated (“As definition which rule, a ‘a n. 10 S., 392-393, 439 U. meaning any . . . excludes what term “means” declares stated’”); Len Telegraph Co. v. Union that is not Western (1945); Oil v. Co. root, Fox Standard 490, S.U. (1935) J.); (Cardozo, also 2A N. see J., 95-96 N. 294 U. S. Statutory Construction Singer, on Sutherland Statutes eases). 1992) (5th (collecting ed. p. n. 10 §47.07, 152, and post, whole,” “as a say, That read statute, is to dissenting), J., leads the reader to a definition. (Thomas, That definition Attorney does not include the General’s up restriction —“the child to the words, head.” Its “sub- portion,” stantial indicate contrary. Attorney General points also Legis- to the Nebraska
lature’s debates, “partial where the term birth abortion” appeared frequently. But those argument debates hurt his they more help than legislators it. Nebraska’s focused di- rectly upon meaning of the word “substantial.” One senator asked sponsor, “[Y]ou bill’s said that as small portion of the fetus aas foot would constitute a sub- portion stantial your opinion. Is that correct?.” The sponsoring replied, senator I “Yes, believe that’s cor- (same id., App. rect.” 452-453; see also at 442-443 sen- ator explaining “substantial” would “indicate that more than a little bit has been e., i. vagina,” delivered into the “[e]nough that would allow up to end killing child”); with the id., (rejecting unborn at *25 D&X). amendment to limit legislature law to The seems to have wanted to avoid limiting language more lest it easy become too to evade the statute’s strictures —a motive that Justice Post, explains. Thomas well 1001-1003. goal, That however, problem. exacerbates the Attorney The again General, echoed the dissents, argues further that the “distinguishes statute between the procedure’ overall ‘abortion separate ‘proce- itself and the dure’ used to kill the unborn child.” Brief for Petitioners post, (opinion J.), at 991-992 16-18; of Thomas, 975-976 J.). (opinion of assuming Even the that dis- Kennedy, tinction help would Attorney the General make D&E/ D&X distinction he any seeks, however, we cannot find language in the supports statute that it. wants He us “procedure” read in the statute’s last sentence to mean “separate procedure,” e., i. killing of op- fetus, posed to a e., procedure, i. whole a D&E or D&X abortion. But the “separate” critical missing. word And same 944 “procedure,”
word in through the same subsection and out the pro statute, is used to refer to entire abortion 328(1)—(4) §§28-326(9), cedure. Neb. Rev. Stat. Ann. 28 — 1999); (Supp. Alloyd cf. Co., 513 v. U. S. Gustafson (1995) (“[Ijdentieal parts words used different the same meaning” act are have intended to the same (internal omitted)). quotation marks statutory dissenters that “partially add words delivers” can be read exclude Post, B&E. at 990-991 J.), J.). (opinion (opinion of Kennedy, Thomas, They say say, of, introduction a limb or both limbs vagina “delivery.” into does not involve But obstetric textbooks routinely and even dictionaries use that term to any describe facilitated removal of tissue from the uterus, not g., removal an intact fetus. E. Obstetrics: Pregnancies, Normal & Problem (describing at 388 “deliv- ery” placenta, of fetal membranes, and umbilical cord labor); stage the third Maloy, Dictionary B. Medical (3d 1960) Lawyers (“Also, ed. [fetal] the removal of a part placenta”); such as the English Dictionary Oxford (2d 1989) (to ed. “deliver” means, alia, inter to “dis- (a women) foetus”); burden Webster’s Third New (1993) Dictionary International (“ff)]elivery” means “the expulsion membranes”). or extraction of fetus and its any event, In specifies the statute itself applies delivering both to “an intact unborn child” or “a substan- portion tial thereof.” explain The dissents cannot how introduction portion of a substantial of a fetus into vagina pursuant “delivery,” D&X is while introduction pursuant to D&E is not.
We are adopting Attorney aware that General’s inter- pretation might avoid the problem constitutional discussed in this section. But power we are adopt “without a nar- rowing construction of a state statute such unless a construc- tion is readily apparent.” reasonable and Barry, Boos v. 485 (1988); U. S. Gooding 312, 330 Wilson, v. 518, U. S. 520- (1972). For the reasons it stated, is not reasonable to replace the term portion” “substantial Attorney with the phrase General’s “body up to the head.” See Almendarez- Torres v. United (1998)(statute States, 523 U. 224, 237-239 S. must be “genuinely susceptible” to interpretations). two
Finally, the law
require
does not
certify
us to
the state-law
question to the Nebraska Supreme Court.
course,
Of
we
any
lack
authoritative state-court construction. But “we
have never held that a
litigant
federal
must await a state-
court construction
the development
or
of an
prac-
established
tice
bringing
before
the federal
City
suit.”
Lakewood v.
Plain
Publishing
Dealer
Co.,
(1988).
In using sum, present this law some prosecutors and fu- Attorneys ture may General pursue choose to physicians who procedures, use D&E the most commonly used method for performing previability second trimester abortions. All perform those who procedures using that method must prosecution, fear imprisonment. conviction, and
946 result is an upon undue burden right a woman’s to make an abortion decision. We consequently must find the statute unconstitutional. judgment Appeals of the Court of is
Affirmed. Ginsburg Justice Stevens, with whom Justice joins, concurring.
Although spilled much today ink is describing grue- some nature of procedures, late-term abortion that rhetoric provide does not me a reason to believe that the Nebraska here claims it seeks to ban is more brutal, more gruesome, or respectful “potential less life” than the equally gruesome procedure Nebraska claims still allows. Ginsburg Judge Justice Posner I have, believe, cor- rectly diagnosed underlying reason for the enactment of legislation this reason explains that also much of the —a Court’s rhetoric objective directed at an that extends well beyond the narrow issue that presents. this case The rheto- ric is almost, quite, but not enough loud quiet obscure the fact during past years, holding central of Roe (1973), Wade, v. U. S. has been endorsed but all of the 17 Justices who have addressed the issue. That hold- ing “liberty” word in the Fourteenth Amendment —that right includes woman’s make this extremely difficult and personal impossible decision—makes it me to understand any legitimate how a State has interest requiring a doctor any follow other than the one that or she he reasonably believes will protect best the woman in her exer- cise this liberty. constitutional But one need not even approach this today view to conclude that Nebraska’s law must fall. For the notion that either equally of these two gruesome procedures performed stage gesta- this late tion is more akin to infanticide than other, or that the any legitimate State furthers by banning interest one but not other, simply irrational. U. See S. Const., Amdt.
Justice O’Connor, concurring.
The issue of abortion is one of the most contentious and
controversial in contemporary
society.
American
pre-
It
sents extraordinarily
questions
difficult
that, as the Court
recognizes,
“virtually
involve
points
irreconcilable
of view.”
Ante, at
specific
921.
question
The
we
today
face
is whether
Nebraska’s attempt
proscribe
to
particular
method of abor-
commonly
tion,
“partial
known as
birth
is
abortion,”
con-
stitutional. For the reasons stated in the
opinion,
Court’s
agree
I
that Nebraska’s statute cannot be reconciled with
our decision in Planned Parenthood
Southeastern Pa. v.
Casey,
(1992),
First, the Nebraska statute is Casey inconsistent with be- cause it lacks exception for those instances when the banned necessary is preserve the health of the mother. See id., at (plurality opinion). Importantly, Nebraska’s own statutory scheme underscores this constitu- tional infirmity. As we Casey, held prior viability “the woman has a right to choose to terminate pregnancy.” her Id., at 870. After the fetus has become may viable, States substantially regulate proscribe and even any abortion, but regulation such or proscription must exception contain an for instances necessary, “‘where it is in appropriate medical judgment, preservation for the of the life or health of the ” mother.’ Id., at 879 (quoting Roe v. Wade, 410 U. S. (1973)). Nebraska recognized has this constitutional limitation in separate its statute generally proscribing postviability abortions. §28-329 See Neb. Rev. Stat. Ann. 1999). (Supp. That provides statute “[n]o abortion shall performed be after the time which, in the sound medical judgment of attending physician, the unborn clearly child appears to have viability, reached except when necessary to Ibid, (emphasis
preserve the or health the mother” life added). proscription of abor- postviability Because even a exception, tion would be invalid absent a health Nebraska’s previability partial abortions, under circum- ban on birth presented exception health here, must include a stances regulating abortions be- well, since State’s interest viability. viability “considerably fore than after weaker” only ex- however, Ante, here, statute at issue cepts procedures “necessary life of those save physical endangered disorder, mother whose life is physical physical injury.” Ann. illness, or Neb. Rev. Stat. 1999). §28-328(1) exception (Supp. a health This lack of necessarily renders the statute unconstitutional. *29 Kennedy
Contrary and Jus- to the assertions of Justice exception arise does not need for a health tice Thomas, support- and from “the individual of his views Dr. Carhart dissenting); post, also Post, ers.” at see 969 (Kennedy, J., dissenting). ma- Rather, at 1012-1013 as the (Thomas, J., jority explains, significant body of where, as “a medical here, opinion greater safety procedure may bring believes a with it patients support- explains for some and the medical reasons ing say ante, that that view,” then cannot 937, Nebraska procedure “necessary not, circumstances, will in some be preserve Accordingly, to the life or health of the mother.” precedent requires our the statute include a health that exception.
Second, alter- Nebraska’s unconstitutional on the statute is independent ground imposes native and it an undue bur- that pregnancy right den on a to her woman’s to choose terminate viability. just before the dilation ban covers not Nebraska’s (D&X) procedure, and dilation extraction but also the (D&E) commonly procedure, used evacuation “the most performing previability method for second trimester abor- Ante, tions.” defines the banned 946. The statute procedure “deliberately intentionally delivering into as vagina portion living unborn or a substantial child,
949 purpose performing for the that the thereof, person performing kill the unborn such knows will Ann. child and does kill the unborn child.” Neb. Rev. Stat. §28-326(9) 1999) added). (emphasis (Supp. As the ex Court proce plains, the medical that the evidence establishes D&E possible is Thus, dure included in this definition. it not interpret language applying only the statute’s as to the D&X procedure. significant both the District it is Moreover, interpreted Appeals and the as Court Court statute prohibiting using performed abortions D&E method as (CA8 1142, well the D&X 3d 1150 method. See P. (Neb. 1998). 1999); Supp. 11 F. 1099,1127-1131 2d We have ordinarily on stated several defer to the occasions we given construction of a state the lower federal statute plain courts unless such a construction amounts to error. (“[T]his (1976) g., Bishop e. See, Wood, v. 341, U. S. accepted interpretation Court has of state law in which Appeals the District Court and Court of have concurred if even examination the state-law issue without such conclusion”); guidance might justified have a different (1959). Tungus Skovgaard, v. defer 588,596 358 U. S. Such unique applies gener ence is not but context, ally addressing See, state statutes law. all areas of the g., e. Ward, UNUM Ins. Co. America v. 526 U. 358, S. Life (1999) law); ("notice-prejudice” rule in state insurance (1985) Spokane Brockett Arcades, v. Inc., 472 U. S. *30 (moral law); Runyon McCrary, nuisance 160, 181 v. U. S. (1976) (statute actions); personal injury of limitations for Bishop supra, (city employment Wood, v. at 346, n. ordi nance). impermissi this Given construction, the statute is argument ble. Indeed, Nebraska conceded at oral that “the prohibit State could not procedure.” the D&E Tr. of Oral Arg. By commonly proscribing the most used method previabiHty for second abortions, ante, 924, trimester see the statute creates a seek “substantial obstacle to woman ing Casey, imposes supra, an abortion,” and therefore
an undue burden on right a woman’s preg- her terminate nancy prior to viability.
It important is to note that, unlike Nebraska, some other States have enacted narrowly statutes more pro- tailored to scribing procedure the D&X alone. Some those statutes have done so specifically excluding coverage from their the most commonmethods of abortion, such as the D&E and aspiration vacuum procedures. example, For the Kansas statute states “(A) that its ban apply does not [s]uction (B) curettage procedure; abortion aspiration suction abortion (C) procedure; or dilation procedure evacuation abortion involving dismemberment of prior the fetus to removal from body pregnant of the §65- woman.” Kan. Stat. Ann. 6721(b)(2) 1998). (Supp. similarly The Utah statute pro- prohibition vides that its “does not include the dilation and procedure evacuation involving prior dismemberment to re- moval, the curettage suction procedure, or the aspi- suction procedure ration §76-7- abortion.” Utah Code Ann. 310.5(l)(a) (1999). Likewise, the Montana statute defines banned “(A) as one in which living fetus is removed intact from the uterus until the head re- (B) mains in the uterus; all or part of the intracranial con- tents of (C) fetus are evacuated; the head of the fetus compressed; (D) following fetal demise, the fetus is removed from the birth § canal.” Mont. Code Ann. 50-20- 401(3)(e)(ii) 1999). (Supp. By restricting their prohibitions to the D&X exclusively, the Kansas, Utah, and Montana statutes avoid a principal defect of the Nebraska law. If Nebraska’s statute application its limited to the D&X
procedure and included an exception for the life and health question mother, presented quite be would differ- ent from the one we today. face As we held Casey, regulation constitutes an undue if burden it “has purpose or placing effect of a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” *31 505 S.,U. at adequate 877. If there were alternative meth- ods safely for woman to viability, an obtain abortion before it unlikely is prohibiting procedure the D&X alone practical would “amount in to a terms substantial obstacle to seeking woman an Id., abortion.” Thus, a ban on partial birth only proscribed the D&X method of abortion and that exception included preserve life and health of the mother my would be constitutional in view.
Nebraska’s statute, however, does not meet these criteria. It exception contains no procedure, for when the appro- priate judgment, medical necessary preserve the health proscribes mother; and procedure not the D&X but also the procedure, D&E commonly most used previability method for second trimester abortions, thus making it an undue right burden on a woman’s to terminate her pregnancy. For agree these I reasons, with Court that Nebraska’s law is unconstitutional.
Justice Ginsburg, with whom Justice Stevens joins, concurring.
I separately only write to stress that amidst all the emo- uproar tional caused an abortion ease, we should not lose sight of the character “partial of Nebraska’s birth abortion” law. As the Court observes, this any law does not save fetus from targets destruction, for it only “a method of performing abortion.” Ante, at 930. Nor does the statute protect seek to pregnant lives or health women. (con- Moreover, as Justice points out, ante, Stevens curring opinion), the most common performing method of previability second trimester abortions is distressing no less susceptible or gruesome description. Seventh Circuit Judge Chief Posner correspondingly regarding observed, similar bans in Wisconsin and prohibits Illinois, that the law D&X “not because the kills the fetus, not because it risks complications worse for the woman
than
procedures
alternative
would do, not
it is a
because
painful
erueler more
or
disgusting
or more
of termi-
method
nating a pregnancy.” Hope
Ryan,
Clinic v.
195
3d F.
(CA7 1999)
881
(dissenting opinion).
Judge
Rather, Chief
Posner
prohibits
commented, the
law
because
legislators
away
state
chip
private
seek to
at the
choice
by
(1973),
shielded
Wade,
Roe v.
410 U.
113
S.
even modi-
by
fied
Planned Parenthood
Casey,
Southeastern
v.
Pa.
of
(1992).
CHIEF Justice Rehnquist, dissenting. join I did joint not opinion in Planned Parenthood of Southeastern Casey, Pa. v. (1992), 505 U. S. 833 and continue to believe that wrongly ease is Despite my decided. dis- agreement with opinion, under the rule laid down in Marks v. United (1977), States, 430 U. S. Casey 188, joint opinion represents holding Court that case. Kennedy I believe Justice and Justice Thomas have cor- rectly applied Casey]s principles join dissenting their opinions.
Justice Scalia, dissenting. optimistic enough
I am day, believe Stenberg one that, assigned rightful place v. will Carhart be its history in the jurisprudence this Court’s beside Korematsu Dred killing Scott. The method a human child—one cannot accurately say entirely even pro- unborn human child— scribed this statute is so horrible the most clinical description of it evokes a shudder of revulsion. And the (as Court must know most legislatures state banning this *33 concluded) procedure have demanding that excep- a “health requires tion”—which the abortionist to assure that, himself expert in his judgment, medical this is, method in the case (how marginally at hand, safer prove than others can one doubt?) contrary beyond a give reasonable to live-birth —is abortion free rein. The notion that the Constitution of the designed, United among things, States, other “to establish Justice, insure Tranquility, domestic . . . and secure the Blessings Liberty of Posterity,” ourselves and prohib- our its simply banning States from visibly this brutal means of eliminating posterity quite our half-born simply is absurd. so,
Even I not had separately intended to write here until the focus of the separate other writings (including Ione joined) gave have me cause to fear might this case be taken to stand for an error different from the one that it actually exemplifies. practice Because of the pub- Court’s of lishing seniority dissents in the order of their authors, writing this appear will in the Reports United States before those others, but the reader will comprehend not what fol- lows unless he reads them first.
[*] [*] [*] lengthy The two dissents this case appropriately have, enough, set out to today’s establish that result does not fol- low from this pronouncement Court’s most recent on the matter abortion, Planned Parenthood Southeastern Pa. (1992). Casey, v. 505 U. 883 It S. would be unfortunate, how- ever, if those disagree who with the result were induced to regard merely regrettable misapplication Casey. It is that, not Casey’slogical but entirely predictable and consequence. To be sure, the Court’s construction this statute so as to make it procedures include than other live- birth abortion only disregard involves not meaning, of fair but an abandonment of principle ambiguous that even statutes should interpreted be in such fashion toas render them valid rather than Casey void. permit does not jurisprudential novelty be up must chalked to the —-which Court’s inclination to any bend the rules when effort limit abortion, speak or even to in opposition to abortion, is at issue. piece, It is of a in other words, with Colorado, Hill v. p. ante, today. 703, also decided
But gives the Court a second independent reason for (not invalidating antibarbarian) this say humane law: That it fails to allow an exception for the situation which the abortionist believes that this live-birth destroying method of might (As child be safer for the pointed woman. by out upon Justice elaborated Thomas, Justice Ken- there is good no reason to believe this is ever the case, nedy, be.) but —who knows?—it might sometime *34 I joined have agree dissent because I Justice Thomas’s that today’s decision is “unprecedented expansio[n]” prior our post, cases, at “is not by mandated” Casey’s “undue-burden” post, test, at 1010, and can be even called (though pushes this belief) me to the my limit of “obviously irreconcilable with Casey’s explication of what its undue- burden requires,” standard post, at put But I never much stock in Casey’sexplication inexplicable. In the analysis, last my judgment Casey supp'ort not does to- day’s tragic result can be traced to the fact that I what con- sider to be an “undue burden” is different from what the majority considers to be an “undue burden”—a conclusion that cannot be by demonstrated true or false inquiry factual legal or reasoning. It is judgment, a value dependent upon (or how respects one much society believes ought respect) to partially the life of delivered re- fetus, and how one much (or spects society ought respect) believes to freedom of gave Evidently, woman who it life to kill it. the five today’s majority Justices in less, the lat- value the former or (or both), ter more, than of us in Case four dissent. anyone Casey closed. There nois cause for who in believes betrayed by by feel this outcome. It has been arrived at precisely process Casey promised by vote democratic —a lawyers, nine question not on the text of the whether the (it anything say Constitution subject has about this obvi- (also ously not); does question appropriate nor even on the lawyers) for legal whether the traditions of American people would have sustained upon such a limitation (they would); obviously upon pure question policy but whether this upon goes limitation e., abortion is “undue”—i. too far. my
In Casey, in dissent I wrote that the burden” “undue by joint opinion test made law the created a standard that was “as application unprincipled in doubtful as it is in ori- gin,” Casey, “hopelessly 505 U. S., 985; unworkable practice,” id., “ultimately 986; id., standardless,” at 987. Today’s proof. debating decision is long As as we are necessity this issue of for a exception health-of-the-mother on Casey, the basis of really it is quite impossible us dis- senters to majority wrong contend that the is the law— on any more than it could wrong be said that one is law support oppose or penalty, support death oppose or to or mandatory minimum sentences. The most we can hon- estly say disagree majority that we with the on their poliey-judgment-eouched-as-law. And those believe who that a policy 5-to-4 vote lawyers on matter unelected should not judgment legislatures overcome the of 80 state problem, have a application Casey, not with the but with *35 its Casey existence. must be overruled. I I-told-you-so am my
While
in an
mood, I must recall
be-
Casey,
majority
musement, in
opinion’sexpressed
at the
be-
lief that Roe Wade,
v.
(1973),
Justice Kennedy, with whom The ChieF Justice joins, dissenting. For close to two decades after Roe Wade, v. 410 U. S.
(1973), the gave Court slight but weight to the interests of separate States legislatures when their sought to address persisting concerns raised 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 legitimate critical and *36 by subject abortion, as limited legislating on the role in again guaranteed. right and the restated Court woman’s Casey, S. v. 505 U. Pa. Parenthood Southeastern Planned (1992). not to political are processes State The promote life of enacting to from laws be foreclosed poten- its respect human life and to for all unborn and ensure opinion). (plurality State’s constitu- at The Id., tial. authority address these citizens to is a vital means for tional progress they grave if we are to as must issues, and serious knowledge understanding in the attainment and and degree some of consensus. repudiates today, my submission,
The decision Court’s advancing invalidating by criti- understanding a statute this woman the though the law denies no interests, cal state even upon right places burden to an abortion and no undue choose compe- right. legislation within the State’s The is well Having law survives to Nebraska’s tence enact. concluded Casey, scrutiny by understanding of proper dictated invalidating judgment I dissent from the it.
I any weight to in- The failure Nebraska’s Court’s to accord prohibiting partial and terest in birth is erroneous abortion ap- holding. undermines its discussion The and Court’s proach regard description of the in this is revealed its to issue, methods which the Court correct de- “clinically scribe ma- cold or The Ante, callous.” jority procedures perspective views the of the abor- from the perspective society tionist, rather than from the of a shocked ending when confronted with a new method of human life. by majority, proce- invoked Words such as “transcervical “[ojsmotie dures,” dilators,” disarticulation,” “instrumental “paracervical may to block,” be accurate are some necessary, extent ante, at 924-925; but citizens who seek why subject know laws on this have been enacted across Repeated Nation, words are references insufficient. to sources understandable physician a trained may obscure persons matters for not trained in medical terminol- ogy. Thus it necessary seems at the outset set forth what may happen during an abortion. person challenging Leroy Nebraska’s law is Dr. Car-
hart, physician *37 who received his degree medical from Hospital Hahnemann University and App. 1973. 29. Dr. performs procedures Carhart the in a clinic Nebraska, id., 30, at and will also travel perform to Ohio to abortions there, id., at 86. Dr. Cai’hart has no specialty certifications in a field related to childbirth or abortion and lacks admitting privileges any hospital. at Id., performs 82, at 83. He throughout abortions pregnancy, including he when is unsure whether the fetus is Id., viable. at 116. In contrast to the physicians provided who expert (who testimony in this ease are board certified leading instructors at medical education institutions and members of the American Board of Obstetri- cians and Gynecologists), performs Dr. Carhart partial the birth procedure (B&X) that Nebraska seeks to ban. He also performs the other method of abortion at issue in the ease, the D&E.
As by described Dr. Carhart, the D&E requires the abortionist to. use (such instruments grasp portion a hand) as a foot or developed of a living fetus drag the grasped portion out the uterus vagina. into the Id., at 61. Dr. Carhart uses the by traction created the opening between the vagina uterus and to dismember the fetus, tear- ing the grasped portion away from the remainder of the body. Ibid. The traction between vagina uterus and essential to the because attempting to abort a fetus using without that traction is described Dr. Carhart as “pulling the cat’s tail” or “dragtging] string across you’ll just floor, keep dragging it. It’s not until something grabs the other end you going develop are traction.” Id., at 62. The many fetus, in just cases, dies as a human adult or child would: It bleeds to death as it is torn limb from beginning at Id., at 63. The fetus can be alive limb. process a time dismemberment and can survive for while being agreed its are off. Dr. limbs torn Carhart you “[w]hen pull say, piece out a of the let’s an arm or fetus, leg just prior to that, and remove at the time removal of portion [is] Id., fetus fetus,... alive.” at 62. has Dr. Carhart observed fetal heartbeat via ultrasound with parts removed,” id., “extensive fetus and testi- always fied that mere dismemberment of a limb does not physician cause death because he knows of a who removed go the arm of a fetus have the fetus on to be born living “as a child Id., with one arm.” at 63. At the con- clusion of a D&E abortion no intact fetus remains. In tray Dr. words, Carhart’s the abortionist is left with “a full pieces.” Id., procedure implicated today “partial The other is called birth used, abortion” or D&X. The D&X can be aas general gestation matter, after 19 weeks’ because the fetus *38 developed may has partial become so that it survive intact delivery vagina. from the uterus into Id., the at 61. In the delivery D&X, the abortionist initiates the woman’s natural by process causing the cervix of the woman be dilated, to sequence days. sometimes over a of Id., at 492. The fetus’ legs arms and are delivered the outside uterus while the fetus is report seeing alive; to witnesses the the body moving of the body. fetus outside the Brief woman’s point, 4. At Petitioners this the abortion has appearance the group of a live birth. As stated one physicians, “[a]s physician manually performs the breech ex- body traction of the excepting of a live fetus, the she head, apparent continues in delivering the role of an obstetrician Physicians a child.” Brief for Association of American Surgeons et only al. as Amici Curiae 27. With the head of remaining the fetus in the open útero, abortionist tears the According skull. to leading Dr. Martin proponent Haskell, procedure, appropriate the instrument to be used at stage this pair the abortion is a of scissors. M. Haskell, Dilation and Extraction for Late Second Trimester Abortion (1992), (1993). in Cong. report Ree. Witnesses ob- serving portion the of the fetus outside the woman react to penetration. the skull Brief for Petitioners 4. The abor- tionist then inserts a suction tube and vacuums out the developing brain and other matter found within the skull. process making the size of the fetus’ head smaller given clinically procedure.” neutral term “reduction (Neb. 1998). Supp. 11 F. 2d 1099, 1106 Brain death does not occur until after the according invasion, skull and, to Dr. Carhart, may heart of the fetus continue beat for minutes after the contents of the skull are vacuumed out. App. 58. The completes delivery abortionist next of a dead except damage fetus, intact for the to the head and the missing contents of the skull.
Of the procedures, two described only Nebraska seeks ban the light In D&X. description proce- of D&X go dure, saying should without that Nebraska’s ban on partial birth purposes abortion furthers States are entitled pursue. Dr. Carhart nevertheless maintains the State legitimate has no forbidding interest As D&X. he interprets controlling cases this Court, the two interests may the State through regulation advance of abor- tion are in the health of the considering woman who is procedure and in the life of the she fetus carries. Brief for Respondent 45. The I opinion, Court, as read its accedes to his views, misunderstanding Casey and the authorities it confirmed.
Casey held that eases decided in the wake of Roe Wade, *39 v. (1973), 410 U. “given [state S. had interests] too little acknowledgment and implementation.” at S., U. (plurality opinion). The any decision turned aside conten- person tion that a “right has the to decide whether to have an abortion without interference from the State,’” id., at rejected 875, and scrutiny strict standard of review as “in- compatible recognition with the that there is substantial potential throughout pregnancy.” in life Id., interest state very 876. “The that the State a substantial at notion has potential in to interest leads the conclusion that not all life regulations must be deemed Ibid. held unwarranted.” We inappropriate provide was for the Judicial Branch to an implicated by exhaustive list of state interests abortion. Id.,
Casey premised important having on the States con- defining stitutional role in their interests in the abortion de- principle It is with this bate. in mind that Nebraska’s given weight. proper can interests be State’s brief de- The including its scribes interests as concern for the life of the partially-born,” preserving unborn and “for the integ- in rity “erecting of profession, the medical and in a barrier infanticide.” to Brief for Petitioners A 48-49. review of Casey legitimacy demonstrates policies. of these say Court should so. may
States take sides in the debate and come on down of life life, side even in the unborn: stages pregnancy, may “Even in the earliest the State regulations designed [a enact encourage rules and woman] philosophic to know that there are and social arguments great weight brought that can be to bear continuing in favor pregnancy to full term and procedures that there are adop- and institutions to allow tion of degree children well unwanted as as a certain state assistance if the mother chooses raise the child herself.” 505 (plurality opinion). S., U.
States forbidding also have proce- an interest in medical dures which, might State’s reasonable determination, profession society cause the medical or a whole to become even including insensitive, disdainful, life, life in the human Casey fetus. consequences Abortion, held, has be- yond the woman and her fetus. The reg- States’ interests
ulating are of Casey concomitant recognized extension. “fraught abortion is consequences with persons for .. . the perform who and procedure [and assist in the for] society which must knowledge confront the procedures that these procedures exist, nothing some deem short of an act of vio- against lence innocent human Id., life.” (majority at 852 opinion). may
A State
take measures to
profes
ensure the medical
and
sion
its members are viewed as healers,
by
sustained
compassionate
a
rigorous
and
cognizant
ethic and
of the
dignity and value of human life, even life which cannot sur
vive without the assistance of
Washington
others.
Ibid.;
v.
Glucksberg,
(1997).
Casey demonstrates that the interests by asserted legitimate State are recognized by and argued, It law. is however, that a ban on the D&X does not farther these inter- ests. This is reasoning because, the continues, the D&E method, whieh Nebraska beyond claims to be its intent to regulate, can still be used abort a fetus and is no less dehumanizing than the D&X method. While adopting not argument express in terms, the Court indicates ap- tacit proval refusing reject forthright it in a manner. Rendering express what implicit in majority opin- ion, Justice Stevens.and Ginsburg are forth- Justice right declaring procedures the two are indistinguish- able and that Nebraska has acted irrationally both without proper purpose enacting the law. The issue is not whether judiciary members can see difference between procedures. the two It is whether Nebraska can. The Court’s recognize refusal to right Nebraska’s to declare a moral difference procedures between is a dispiriting disclosure illogic illegitimacy ap- Court’s proach to the entire ease.
Nebraska was entitled to find consequen- the existence of a tial moral difference procedures. between the We are re- ferred to substantial authority medical perverts that D&X process greater natural degree birth ato D&E, than com- mandeering process the live pierced. birth until the skull is *41 (AMA) publications American Medical Association describe the D&X abortion “ethically method wrong.” as AMA (June Board of Trustees 1997), Pactsheet on HR App. to Brief Physicians for Association American and Surgeons (AMA Pactsheet). et al. as Amici Curiae 1 The D&X differs from the D&E because in the the D&X fetus is “killed outside of the womb” where the fetus has “an auton- omy separates which right it from the of the woman to choose treatments for body.” her own App. Ibid.; see also 639-640; Brief for Association Physicians of American and Surgeons (“Intact et as al. Amici Curiae 27 D&X is aberrant troubling and technique because the disparate confuses the physician role of a in childbirth way and abortion in such a as legal, to blur the medical, and ethical line between infanti- abortion”). cide and procedure Witnesses to the relate fingers the and feet of moving the fetus prior are to the piercing of the skull; when the are scissors inserted in the back of the body, wholly head, the fetus’ outside the woman’s body and though alive, reacts goes as startled limp. and stronger D&X’s resemblance to infanticide means Nebraska could conclude presents the greater risk of disre- spect life consequent greater and a profession risk to the society, and depend which upon for their sustenance recipro- recognition cal dignity respect. The Court is without authority second-guess this conclusion. who oppose
Those agree, abortion would indeed would in- sist, that both procedures subject are to the most severe moral condemnation, condemnation reserved for the most re- pulsive human conduct. This is inconsistent, not however, with proposition the further that as an ethical and moral matter D&X is distinct D&E from is a and more con- serious cern for medical ethics morality larger society profession medical must serve. obey Nebraska must legal regime which has right declared the woman to
have an abortion before viability. Yet it power retains its adopt regulations which impose do not an undue burden on the right. woman’s By regulation, its Nebraska instructs all participants in the process, abortion including the mother, of its judgment moral that all including life, the life of the unborn, respected. is to be participants, Nebraska has determined, be cannot indifferent to used and must refrain using from delivery process natural to kill the fetus. The differentiation procedures between the is it- self a moral serving promote statement, respect for human life; and if the woman and physician her in contemplating the consequences moral prohibited procedure conclude grave consequences moral pertain to permitted process well, the choice to elect or not to elect *42 abortion is more informed; and policy of promoting re- spect for life is advanced.
It ill-serves Court, its position, institutional and the constitutional sources it seeks invoke to refuse to issue a forthright affirmation of right Nebraska’s to declare that critical moral differences exist between the procedures. two The natural process birth has been appropriated; yet the Court refuses to hear the State’s voice in defining its inter- ests in its law. holding Court’s Casey’s contradicts as- surance that the State’s position constitutional in the realm of promoting respect for life is marginal. more than
II Demonstrating a further and basic misunderstanding of Casey, the Court holds the ban on the D&X fails because it does not include an exception permitting an abor- perform tionist a D&X whenever he believes will best preserve aside, health of Casting woman. the views distinguished of physicians and the statements leading medical organizations, the Court awards physician each a power veto over the judgment State’s procedures should performed. not be Dr. Carhart has made the medical judgment every to use regard- the D&X ease, gestation. less of Supp. indications, after 15 weeks’ 11 F. Requiring 2d, 1105. Nebraska to defer to Dr. Carhart’s judgment is no forbidding different from Nebraska from enacting Leroy a all; ban at for it is now Dr. Carhart who policy sets abortion legis- for the State of not the Nebraska, Casey people. give precedence lature or the does not to the single physician group of a physicians views or regarding a safety particular the relative a procedure. agreement
I am in frill with Justice ap- Thomas propriate Casey inquiry is not, as the Court would have it, preventing whether the State doing abortionist from something judgment, that, in his medical he believes to be appropriate the most Post, course of treatment. at 1009- Casey question addressed the “whether the State can [about philosophic questions abortion] resolve . .. in such a way definitive that woman lacks all choice in the matter.” against 505 U. atS., 850. We decided the issue the State, holding deprived opportunity that woman cannot be reproductive Casey to make Id., decisions. at 860. made it quite evident, however, that the State has substantial con- cerns for may childbirth and the life unborn and enact depriv[e] laws “which in no real sense women of the ultimate (plurality opinion). decision.” having Id., Laws “purpose placing or effect of a substantial obstacle in the path seeking of a woman an aof nonviable fetus” *43 prohibited. are Id., law Nebraska’s does not have purpose this or effect. Casey, holding allowing of a woman to elect question
in circumstances, defined is not Nebraska, here. was entitled to however, conclude that its ban, while advanc- ing important regarding sanctity interests of de- life, prived no woman of a safe abortion and therefore did not impose rights a any substantial obstacle on the of woman. College The American Gynecologists Obstetricians and (ACOG) identify [D&X] “could no circumstances under which would be option to save preserve the life or health of the App. woman.” agrees, 600-601. The AMA' stating the expert panel, “AMA’s which included an ACOG representative, could not ‘any5 find identified circumstance where it was ‘the only appropriate alternative.’” AMA Factsheet 1. The Court’s conclusion that the D&X is the safest requires method it to replace the “may words be” with the word “is” in the following sentence position from ACOG’s statement: “An intact D&X, may however, be the best or appropriate most procedure in particular a circumstance.” App. 600-601. No support studies the contention that the D&X abortion is method safer than other abortion methods. Brief for Re- spondent 36, n. 41. Leading proponents of the acknowledge that the D&X “disadvantages” has versus other methods it requires because high degree surgical skill pierce the skull awith sharp instrument in a proce- blind dure. Haskell, Cong. (1993). Rec. 8605 Other doctors point complications that may arise from the D&X. Brief Physicians American Surgeons and et al. Amici Cu- riae App. 21-23; 186. A leading physieian, Frank Boehm, M. D., performed who has supervised abortions as direc- tor the Fetal Intensive Care Unit and the Maternal/Fetal Medicine Division at University Vanderbilt Hospital, has re- fused to support use of the D&X, both because no medical need for exists and because of ethical con- Id., cerns. at 636, 639-640, 656-657. Dr. Boehm, a fellow of ACOG, id., at 565, supports abortion rights pro- has vided sworn testimony opposition previous state at- tempts to regulate abortion. Id., at 608-614. The Court cannot conclude part D&X of standard practice. medical It is telling expert no called Dr. Carhart, and expert no testifying in favor pro- cedure, had in performed fact partial birth abortion in his or her practice. medical g.,E. id., at (testimony Phillip Stubblefield). Dr. In respect this opinions their were *44 courtroom reliability. conversions of Litigation uncertain jurisdictions other physicians establishes that adopt do not part D&X of standard practice. medical g.,E. Richmond Center Medical Women v. Gilmore, 144 for (CA4 1998); F. 3d Hope 326, 328 Ryan, Clinic v. 195 3d 857, F. (CA71999); App. see also quite wrong It 603-604. is for Court as it conclude, seems to have here, done Dr. Carhart practice conforms his to the proper standard of incorporated care because he has prac into his tice. Neither Dr. Boehm nor Dr. expert, Carhart’s lead (the Dr. Stubblefield Department chairman of the of Obstet Gynecology rics and University Boston School of Medicine and director of obstetrics and gynecology for the Boston Center), Medical has done so.
Substantial supports evidence Nebraska’s conclusion that its law denies no woman a safe abortion. The to be most said may for the is D&X it present unquantified lower complication risk particular for a patient but that other proven procedures safe remain pa available even for this tient. Under these circumstances, the wrong Court inquiry limit its to the physical relative safety of the two procedures, slightest potential with difference requiring the invalidation of the law. As Justice ex O’Connor plained in an earlier may case, State regulate based on beyond matters “what organizations various medical have to say physical about the safety particular of a procedure.” Akron v. Akron Reproductive Center Health, Inc., 462 (1983) U. 416, 467 S. (dissenting opinion). Where the differ physical ence in safety is, marginal, best, may the State take into grave account the presented moral issues by a new Casey, method. See 505 S.,U. (requiring at 880 regulation impose “significant threat to the life or health of a woman” before application its impose would an undue (internal burden quotation omitted)). marks Dr. Carhart does not decide to use D&X based on a conclusion that it is best particular for a woman. gen- Unsubstantiated and *45 eralized health differences are, which at marginal, best, do not amount to a substantial right. obstacle to the abortion Id, at (plurality 874, opinion). important It also is to recognize that the D&X is effective when the fetus is close to or, viable fact, in regulating viable; thus the State is process point at the where its nearing interest in life peak. its ill-equipped
Courts are to evaluate the relative worth particular surgical procedures. legislatures The of the sev- eral States superior have factfinding capabilities in this re- gard. In an earlier explained ease, Justice had O’Connor general that the rule extends writing to abortion cases, the Court is not suited to be “the Nation’s ex medical officio powers board with approve to or disapprove and medical operative practices and throughout standards the United (internal States.” 462 U. (dissenting S., opinion) quo- omitted). tation marks “Irrespective of difficulty of the legislatures, task, superior their factfinding with capabilities, are certainly better necessary able to judgments make the than are courts.” Id, at 456, n. judgment 4. Nebraska’s here must stand.
In deferring physician’s to the judgment, the Court turns back to eases decided in the gave wake of cases Roe, which physician’s treatment controlling weight. decisions Before repudiated was by Casey, approach deferring phy- to sicians had apex reached its supra, Akron, where the Court held an requirement informed consent was unconstitu- tional. The law challenged required Akron the abortion- ist to inform the woman of the status pregnancy, of her development of her possible fetus, the date of viability, physical complications emotional may result from an abortion, and the availability agencies provide assist- ance and Id, information. physician 442. The was also required to advise the woman of the risks associated with the abortion technique to employed be and other informa- tion. Ibid. The law was physi- invalidated on based right practice way dan’s medicine in the he or she saw fit; according “[i]t primarily for, Court, the Akron remains responsibility physician appropriate of the to ensure that conveyed patient, depending information is to his on her particular Dispositive Id., circumstances.” at 443. for the upon Court was that the law was “intrusion the discretion pregnant physician.” phy- Id., woman’s at 445. The placed sician was in an “undesired uncomfortable strait- Ibid, (internal omitted). jacket.” quotation marks today *46 Court’s decision the echoes Akron Court’s deference physician’s right practice way to a to medicine he in the or she sees fit.
The yet of course, Akron; does not wish to cite Court, the holding indistinguishable Court’s reasoning is from the Casey repudiated. today’s Akron that doubt No exists holding physician-first is based on a view finds its which primary support in that now-discredited case. Rather than exalting right physician practice the of a to with medicine recognized: Casey unfettered discretion, “Whatever constitu- doctor-patient tional may status the gen- relation as a have present matter, eral in the context it is the derivative position.” woman’s (joint opinion 505 atS.,U. 884 of O’CON- Casey discussed the in- Kennedy, Souter, NOR, JJ.). requirement formed consent struck down in Akron and held wrong. doctor-patient Akron was The relation was “entitled to the same it solicitude receives in other contexts.”
505 S., U. at 884. The practice standard of medical cannot depend on the individual sup- views Dr. Carhart and his porters. question here whether is there substan- was objective tial and medical evidence to demonstrate State had support considerable for its conclusion that the ban cre- a ated substantial risk Casey to no recog- woman’s health. point, holding nized the physician’s ability practice to “subject medicine regulation was to by reasonable . . . State” and would receive “same solicitude it receives in other contexts.” Ibid. In other contexts, is enti- State tied to judgments make high where authority medical is in disagreement.
The Court fails acknowledge substantial authority allowing the State to take sides ain medical debate, even when liberty fundamental interests are at stake and even leading when members of profession disagree with the legislature. conclusions drawn In Kansas v. Hen- (1997), dricks, 521 S.U. we disagreements held that among professionals medical “do not tie the State’s hands in setting the bounds of... laws. In precisely fact, is where disagreement such legislatures exists that have been af- forded the widest Id., latitude.” 360, n. 3. Instead, (rather courts must exercise require caution than deference physician’s decision) to the treatment when medical uncer- tainty (“[W]hen present. legislature Ibid. ‘undertakes fraught act in areas with medical and scientific uncertain- legislative options ties, especially must be broad and courts should be cautious not legislation’”) (quoting rewrite Jones v. (1983)); States, United U. S. see also (1912) Texas, Collins v. J.) (Holmes, U. S. 288, 297-298 (declaring “right adopt the state to policy upon even medical concerning matters which there is difference opin- *47 dispute”); ion and Lambert Yellowley, v. U. S. 596- (1926)(rejecting distinguished claim of physician because “[h]igh authority medical being in conflict ... it , would, strange indeed, be Congress if power act]”); [to lacked the Marshall (1974) v. United States, 414 U. S. 417, 427 (recog- nizing “there agreement is no among of the members medi- (internal profession” cal quotation omitted)); marks United (1979) States v. Rutherford, U. S. 544 (discussing regula- tory approval process for drugs). certain
Instructive is Jacobson v. Massachusetts, 197 U. S. 11 (1905), where the defendant was convicted because he re- fused undergo to smallpox a vaccination. The defendant claimed the mandatory vaccination violated his liberty to “care for body his own way health in such as to him seems prove Id., best.” He to offered that members of the profession medical position took the the vaccina- tion of no was value and, fact, was Id., harmful. at 30. rejected The Court establishing beyond the claim, doubt the right legislature upon resolve matters physi- which disagreed: cians [of proof by
“Those offers defendant] the in the main seem to have had purpose except no general the state theory of those of profession medical the who lit- attach tle or no value to vaccination preventing as a means of spread smallpox, the or who think that vaccination causes other body. diseases of everybody What knows the court know, must and therefore the state judicially court knew, this oppo- knows, court that an theory site accords with the commonbelief, and is main- by high authority. tained medical We must assume that, when question the statute in passed, was legis- lature of not Massachusetts was oppos- unaware of these ing compelled, theories, necessity, was to choose between It compelled them. was not to commit a mat- involving ter public safety health and to the final jury. decision of a part court or It is no of the function jury of court or determine which one two modes likely was to be the most effective protection for public against disease. That was legislative department to determine in light of all the informa- tion it had or could obtain. It could properly not abdi- cate its guard function to public safety.” health and Ibid. quoted approval Jacobson Court with a recent state-
court decision having observed, which applica- words full today: tion
“The fact [in that the belief is not universal the medical community] is controlling, not scarcely any for there is belief accepted by that everyone. is possibility The may wrong, the belief may yet be and that science show wrong, it to be is not legislature conclusive; for the has right pass according to laws which, to belief common people, [address of the adapted matters]. are medical country, In a government free by where people, is through representatives, their chosen practical legisla ” tion admits of no other standard of at Id., action/ (quoting Viemester v. White, 235, 241, Y. N. N. E. (1904)). 97, 99 people they assures the of Nebraska
Justice O’Connor are free to redraft the law exception an permitting include performed procedure, the D&X to be appro- when “the in priate judgment, necessary preserve medical is the health of the Ante, mother.” meaning- 951. The assurance is joined less. She has opinion accepts which that Dr. Car- hart “appropriate exercises judgment” using medical in every patient D&X for every procedure, regardless of indi- gestation. cations, after 15 weeks’ (requiring Ante, at 937 any health exception responsible to “tolerate differences of here”). opinion” medical present which “are A ban which depends on the “appropriate judgment” medical of Dr. Car- hart is no ban all. by any He will be unaffected new legislation. This, of course, is vice of exception a health resting physician’s in the discretion. light
In opinion of divided medical on propriety partial (both birth technique physical terms safety practice) and ethical and the vital interests asserted in its law, Nebraska one is left to ask what the first Justice Harlan “Upon asked: what principles sound as to the rela- existing tions departments between the different govern- ment can the court review this legislature?” action of supra, Jacobson, at 31. The answer is none.
Ill holding Court’s next Nebraska’s ban forbids both the D&X and the proce- more common D&E *49 ruling misapplies dure. In so the Court settled doctrines statutory Casey’spremise construction and contradicts position the a States vital abortion have constitutional the agree statutory analysis I debate. with the con- careful by ducted post, Like the 989-1005. Justice Thomas, ruling requiring physician requiring a a to meet veto, State statutory draftsmanship unattainable standards of in order grave subject its have voice heard on this and difficult is foreclosing participation altogether. no different from state provides: statute Nebraska’s partial performed
“No birth abortion shall be in this procedure necessary state unless such is to save the life endangered by physical mother whose life is a physical physical injury, including disorder, or illness, life-endangering a physical condition or aris- caused ing pregnancy from itself.” Neb. Rev. Stat. Ann. §28-828(1) 1999). (Supp. “partial
The statute defines birth abortion” as procedure “an person performing in which the partially the abortion vaginally living delivers a unborn killing child completing before the unborn child and §28-326(9). delivery.”
It “partially further vaginally defines living delivers a un- born child killing before the unborn child” to mean
“deliberately intentionally delivering into va- gina living portion unborn child, or a substantial purpose thereof, performing for the person performing such will knows kill the unborn child and does kill the unborn child.” Ibid. The text applies demonstrates pro- law to the D&X cedure. Nebraska’s intention demonstrated at three points in the statutory language: to “partial-birth references abortion” the “delivery” require- of a fetus; and delivery performance ment that the occur “before” the death-causing procedure. “partial per-
The term means an abortion birth abortion” using formed method as described above. The D&X Appeals acknowledged commonly un- Court of the term “is *50 procedure in- particular derstood to refer to a known as (D&X).” Family tact dilation and extraction Little Rock (CA8 1999). Planning Jegley, 794, Servs. v. 192 F. 3d expert, Phillip pref- Dr. Carhart’s own Stubblefield, lead Dr. description procedure by describing aced his of the D&X procedure lay press, as the “which, in the has been called a partial-birth App. And the AMA abortion.” 271-272. has ‘partial legislation by declared: “The birth its abortion’ very D&X.] exclusively [at name There is aimed the no procedure other abortion that which could be confused with description.” under- AMA Factsheet 8. A commonsense standing “partial-birth of the statute’s abortion” reference provides demonstrates its intended reach and all citizens the warning required by McBoyle fair v. the law. United (1931). States, 25, 283 U. S. scope by
The statute’s intended is demonstrated its re- quirement partial the a banned include “de- livery” vagina the completion fetus into the and the of a “delivery” the procedure. Only at end of the removal of “delivery” intact fetus can be described as a of a fetus and only the portions D&X involves an intact fetus. In a D&E, pulled vagina of the fetus are into the with the intention dismembering by using opening the fetus the traction at the between the vagina. uterus This cannot be considered delivery a portion of a of a In Dr. fetus. Carhart’s own “tray words, D&E leaves the abortionist with a full of pieces,” App. procedure. 125, at the end of the Even if it argued, majority could be does, ante, dragging portion vagina a of an intact fetus into the as the step first of a delivery portion is a D&E of that of an intact “completing fetus, the D&E still does not involve deliv- ery” of an statutory intact fetus. Whatever “com term pleting delivery” of an unborn child it cannot means, placing mean, as the it, Court would have fetal remains on a tray. Doyle, See Planned Supp. Parenthood v. F. Wis. (WD 1998)(the 2d “readily 1033, 1041 applied Wis. statute is partial delivery hardly applicable of an intact child but delivery to the body parts”). of dismembered descriptions Medical procedures of the abortion confirm point, description it is of the D&X that in- “delivery.” vokes the word App. 600. The States, United bring as amicus, cannot itself to the D&E as describe involv- ing “delivery,” a substituting “emerges” instead the word describe brought vagina how the fetus is into the in a-D&E. Brief for States United as Amicus Court, Curiae 10. The in a similar physician pulling” admission, uses the “a words portion a of a fetus, ante, “physician a 939, rather than delivering” portion a yet only of a fetus; involv- ing delivery *51 is banned the Of all law. the definitions of “delivery” provided by the Court, ante, at not one (or, supports important more statutory pur- for construction poses, requires) the statutory conclusion that the term “com- pleting delivery” the placement refers to the of dismembered body parts tray on a rather than the an removal of intact fetus body. from the woman’s operation
The of by Nebraska’s law is further the defined requirement that partially the be fetus delivered into the vagina “before” the partial abortionist delivery kills it. The must be purpose undertaken the performing “for of proce- a person dure that the . . . knows will kill the unborn child.” §28-326(9) 1999). Neb. Rev. Stat. (Supp. Ann. The is law naturally most require read to the death of the fetus to take place steps: in two First the partially fetus be delivered must vagina into the and then the defendant perform must a death-causing procedure. In forcing a D&E, into the fetus (the vagina the pulling of body extremities off the in the process extracting of body parts the from the into uterus the vagina) is procedure also the kills fetus. Richmond Medical Center Women Gilmore, v. 144 F. Bd, at 330 (order J.). Luttig, of In a partially D&X, the fetus is deliv- vagina (the ered separate into the procedure before a so- called procedure”) “reduction performed is order kill the fetus. majority rejects
The argument this based on its conclusion “procedure” that the word must “refer entire abortion procedure” each time it is used. Ante, at 944. This inter- pretation makes no sense. require It would us to conclude Legislature the Nebraska considered the “entire abor- procedure” tion place to take after the abortionist has al- ready vagina delivered living into unborn or child, portion substantial §28- thereof. Neb. Rev. Stat. Ann. 326(9) 1999). (Supp. All medical agree, authorities however, that the entire abortion begins days several be- stage, fore this with the dilation of the majority cervix. The asks replace us, effect, to purpose words “for the performing” with the words “in course of performing” in §28-326(9) portion quoted in preceding paragraph. The reference “procedure” separate refers to the death- causing procedure that unique is to the D&X. light
In statutory text, the commonsense under standing must be that statute covers the D&X. See Broadrick v. (1973). Oklahoma, 413 U. S. 601, disagree. AMA does not It partial writes: “The birth abor legislation tion very its name exclusively aimed at a procedure by living which a is intentionally fetus and delib erately given partial birth purpose delivered for the killing it. There is no other which could *52 be confused with that (in description.” AMA Factsheet 3 quotation omitted). ternal Casey marks disavows strict scrutiny review; and Nebraska must be leeway afforded when attempting regulate to profession. medical See (“[W]e Kansas v. Hendricks, S., 521 U. at 359 have tradition ally left legislators the task defining terms of a medical nature that legal have significance”). To hold the statute covers the D&E, Court must disagree with the AMA disregard the known intent of legislature, adequately- expressed in the statute. statutory
Strained
constructions in abortion cases are not
new, for Justice
years
ago
identified
unprec
“an
O’Connor
edented canon of construction under which in cases involving
abortion, a permissible reading of a statute is to be avoided
at all costs.” Thornburgh v.
College
American
Obstetri
cians
Gynecologists,
(1986)
tention to authority of the State’s and misapplied the construing doctrine of statutes avoid con difficulty. stitutional leading Further, describing case argument, Frisby the deference v. Schultz, 487 U. S. 474, 483 (1988), declined to to a defer lower court construction of state statute at Frisby issue in the case. As observed, the “lower courts afoul of ran the well-established principle interpreted that statutes will be to avoid constitutional dif ficulties.” Reproductive See also Webster v. Health Serv ices, (opinion J.); U. S. of Rehnquist, (1989) C. id., at concurring part J., concurring (O’Connor, judgment). majority even more concurring opinion and, so, by Justice ignore against rule settled decid- O’Connor, ing unnecessary questions. constitutional The State of Ne- braska understanding conceded, under its Casey, that if this law interpreted must be to bar as well D&E D&X is unconstitutional. the majority Since concludes this is in- deed the ease, should have been end of the matter. Yet the Court and Justice go much further. O’Connor They conclude requires that the statute exception a health practical purposes which, for all certainly in the circum- stances of this physician ease, allows to make the deter- mination in professional his own judgment. This is an im- mense holding. constitutional unnecessary; It is and, for the I sought reasons have explain, it is incorrect. While it is clear not which of two majority opinion halves of the wrong. dictum, both are
The United
District
leaped
States
Court in
ease
this
prevent
being
the law
granting
injunction
from
enforced,
applied
before it was
interpreted or
Nebraska. Cf. Hill
v.
p.
Colorado, ante,
In
doing,
so
the court excluded
from the
just
abortion debate not
legislative
the Nebraska
branch but the
judiciary
State’s executive and
as well. The
enjoined
law was
before the ehief law enforcement officer
Attorney
State,
its
any
General, had
opportunity to
interpret it. The federal
*54
ignored
court then
representa
the
by
tions made
during
officer
litigation.
this
In like
manner, Nebraska’s
given
courts will be
no opportunity to
define the contours of the
although by
law,
all indications
give
those courts would
the statute a more narrow construc
tion than the
eagerly
one so
adopted by the
today.
Court
g., Stenberg
E.
v. Moore,
IV Ignoring substantial medical and opinion, ethical Court judgment its own substitutes judgment for the of Ne- braska and some 30 other sweeps States and away. the law holding Court’s stems from misunderstanding the rec- ord, misinterpretation Casey, outright refusal to respect the law of a statutory State, and construction in conflictwith settled rules. The decision nullifies a expressing law will people of Nebraska that procedures medical must governed be principles moral having their foundation the intrinsic value of human including life, the life of the Through unborn. people their law of Nebraska were forthright in confronting an issue of immense moral conse- quence. The State chose to forbid many decent and people civilized find so abhorrent as among to be most serious of against crimes human life, while the State protected still the woman’s right autonomous choice Casey. reaffirmed The Court eyes closes its pro- these found concerns.
From the decision, reasoning, and judgment, I dissent.
Justice with whom Thomas, The ChieF Justice Justice Scalia join, dissenting.
In 1973,this Legis- Court struck down an Act of the Texas lature that thereby had been in rendering effect since 1857, unconstitutional abortion statutes in dozens of Roe States. Wade, my v. colleagues 113, U. S. 119. As some of on past ably present, Court, demonstrated, that decision grievously wrong. was g., See, e. Doe v. Bolton, 410 U. S. (1973) (White, dissenting); 221-223 J., Roe Wade, v.
supra, at dissenting). 171-178 (Rehnquist, J., Abortion is unique act, in which a woman’s exercise of control over body her own depending ends, on one’s human life view, or potential Nothing human life. in our Federal Constitution *55 deprives people country right of this to determine consequences whether the of abortion to the fetus and to society outweigh the pregnancy burden of an unwanted on Although may permit mother. a nothing State abortion, in the Constitution dictates that a State must do so. years
In following applied, Roe, this Court and, worse, extended, that decision to strike down numerous state stat- purportedly utes that threatened a ability woman’s to obtain an abortion. The parental Court voided laws, consent see Planned Parenthood Central Mo. v. 428 Danforth, U. S. of (1976), legislation 52, 75 requiring that second-trimester place hospitals, abortions take in see Akron v. Akron Center Reproductive (1983), Health, Inc., 462 416, U. S. 431 and requirement even a parents that both of a minor be notified before their Hodgson child has an abortion, see v. Minnesota, (1990). 497 417, U. S. 455 slight It exaggeration was when this Court right described, in to abortion “with- out interference from the supra, State.” Danforth, at 61. expansive application The Court’s period, of Roe in this even fairly more than itself, Roe was described as the “unre- imposition [the Court’s] strained of own, extraconstitutional preferences” value people. Thornburgh on the American v.
981
College
American
Gynecologists,
Obstetricians and
476
(1986)(White,
S. 747,
U.
dissenting).
J.,
appeared
It
that this era of Court-mandated abortion on
demand had
come
end,
first with our decision in Web
Reproductive
ster v.
Health
(1989),
Services,
long regulation as legitimate state of abortion furthers inter- designed is, ests—that interests not to strike right at the regulation itself—the imposes if invalid an undue burden on a ability woman’s to obtain an meaning abortion, places that it a substantial obstacle in path. the woman’s Id., at 874, 877.
My views Casey plurality on of merits have been fully by articulated others. Id., at 944 (Rehnquist, J.,C. concurring judgment part in in dissenting part); and in id., J., concurring judgment in part and dis- (Scalia, senting part). I will not restate those except views here, Casey to note that plurality opinion was by constructed its authors out of whole cloth. The standard set forth in the Casey plurality has no pedigree. historical or doctrinal standard product is a philosophical its authors’ own views about go abortion, and it should saying without that it has origins no relationship in or to the Constitution and is, conse- quently, illegitimate purported as the standard it to re- place. assuming, Even however, as I will for remainder Casey’s this dissent, fabricated undue-burden stand- (which not), ard merits adherence today’s it does decision is extraordinary. Today, inexplicably Court holds that the States cannot constitutionally prohibit a method of abortion that millions distinguish find hard to from infanticide and that the Court hesitates even to describe. Ante, at 923. holding This cannot be Casey’s reconciled with undue-burden standard, as that standard explained was to us the au- thors plurality opinion, majority hardly pre- tends otherwise. In striking down this statute —which ex- presses profound legitimate respect for fetal life and whieh unimpeded leaves several other safe forms of abor- majority tion—the opinion gives promise the lie to the Casey regulations that do no “express more pro- than respect found life of the permitted, unborn are they if are not a substantial obstacle to the woman’s exercise of the right to choose” whether or not to have an abortion. 505 *57 Today’s S.,U. at 877. obviously decision is so irreconcilable Casey’s explication with of what its undue-burden standard requires, let alone the Constitution, should be seen for what it pre-Webster is, reinstitution of the abortion-on- era in demand which the mere invocation rights” of “abortion trumps any contrary societal interest. If this statute is un- Cctsey, constitutional under Casey then nothing meant all, candidly the Court should admit it. To reach decision, its majority must take series of steps. indefensible majority The must disregard first principles that this Court every follows in context but abor- interpret tion: We according statutes plain to their meaning, dowe not strike down susceptible statutes of a narrow- ing construction. majority also disregard must very constitutional standard it purports employ, and then displace the' judgment considered the people of Nebraska and 29 other States. The majority’s decision is lamentable, because of the majority result the illogical steps reaches, the the majority takes to reach it, portends and because it a re- turn an era I thought had wé had last abandoned.
I In the years almost 30 since Roe, this Court has never described the various methods aborting a second- or third-trimester fetus. reading From majority’s sani- description, tized one would think that this ease involves regulation state widely of a accepted routine proce- medical Nothing dure. be could further from the truth. The most widely used method of during stage this preg- nancy gruesome is so that its use can be traumatic even for physicians and medical perform staff who App/ it. See 656 (testimony Boehm); of Dr. W. Hern, Abortion Practice (1990). particular And at issue in this “partial case, birth closely abortion,” so borders on infanti- cide that 30 States attempted have to ban it. begin I will with a discussion methods of abortion available
984 women late in their before pregnancies the statu- addressing and tory constitutional questions involved.2 1. The form of primary used or after 16 weeks’ is gestation known as “dilation and evacuation” or “D&E.” 11 F. 2d Supp. 1099, (Neb. 1998). 1129 When per- formed that during of the stage D&E pregnancy, the requires physician to dilate the woman’s cervix and then extract the fetus from her uterus with Id., forceps. 1103; (American 490 App. Medical Association (AMA), of Report the Board of Trustees on Abortion). Late-Term Because of fetus’ the size at this the stage, physician removes generally the fetus by the fetus one dismembering at a piece time.3 11 F. 2d, Supp. at 1103-1104. The doctor a fetal grabs extremity, as such an arm or a with leg, and forceps “pulls it through cervical os . . . . . . fetal from tearing parts the fetal ... Id., at 1104. See body means of traction.” App. Carhart). of (testimony Dr. In other words, will physician grasp fetal parts tear off “basically of pieces the fetus and Id., them pull out.” at 267 (testimony of Dr. Stubblefield). id., See also at 149 (testimony 2 1996, most year recent for which abortion statistics are available from the Centers for Disease and Prevention, Control there were approxi mately 1,221,585 performed abortions in the United States. Centers for Disease Control and Prevention, Abortion States, Surveillance—United 1996, 1p. 80, 1999). (July Of abortions, these 67,000 about —5.5%—were performed in or after 16th of gestation, is, week from the middle of the second trimester through the third Id, trimester. at 5. The ma jority apparently accepts that none of the abortion procedures used for pregnancies in earlier stages gestation, including “dilation and evacua (D&E) tion” practiced between and 15 weeks’ gestation, would be compromised by the ante, statute. See at 938-940 (concluding the statute could be interpreted to apply to instrumental dismemberment procedures in a D&E). used later term Therefore, only the methods of abortion available to women in this later stage pregnancy are at issue in this ease. 16At weeks’ gestation, the average fetus is approximately six inches By 20 long. weeks’ gestation, the fetus is approximately eight inches K long. &Moore T. Persaud, (6th 1998). Human 112 Developing ed. (“[Y]ou Hodgson) Dr. grasp parts, you the fetal often they don’t know what you try pull are, and it down, and it”). simply its . . . all there is to The fetus will die from blood loss, either physician because the separated has prior umbilical beginning cord or because the fetus loses blood as its are limbs Id., removed. at 62- Carhart); 64 (testimony of Dr. id., at (testimony Hodgson).4 Dr. When all of the fetus’ limbs have been re- moved and the head is physician útero, left will *59 collapse then pull the through skull and the cervical canal. (testimony Carhart); at Id., 106 of Dr. (testimony id., at 297 Stubblefield); Causeway Dr. Medical Suite Foster, v. 43 (ED 1999). Supp. P. 604,608 2d La. At proce- the end of the physician dure, the respondent’s is left, in words, with a “tray pieces.” full of App. Carhart). (testimony 125 of Dr.
2. Some abortions after 15th the week performed are using a method of abortion as known induction. Supp. 11P. (AMA, App. 2d, at 1108; 492 Report of the Board of Trustees Abortion). on Late-Term In procedure, an induction the injected amniotic sac is with an abortifacient as such a sa- line solution or a solution that prostaglandin. contains 11 Supp. P. 2d, at 1108. Uterine typically contractions follow, causing expelled. fetus be Ibid.
3. A third form of abortion during for use after or 16 gestation weeks’ is referred to professionals some medical as “intact D&E.” There are two variations of this method, require both physician which to dilate the woman’s Gynecologic, cervix. Obstetric, Surgery Related 1043 (D. Nichols 2000); & D. eds., Clarke-Pearson App. 2d ed. 271 Stubblefield). (testimony of Dr. The first variation is used only in presentations, vertex is, that when the fetal head is presented perform first. To vertex-presentation intact D&E, doctor will insert an into instrument the fetus’ 4 Past 20th week of gestation, respondent attempts to induce fetal by injection death prior to beginning the procedure in patients. 11 2d, F. 1106; at Supp. App. 64.
skull while the fetus is still in útero and remove the brain and other intracranial contents. F. 2d, Supp. 1111; supra, Gynecologic, Obstetric, and Related 1043; Surgery, App. (testimony Stubblefield). Dr. When fetal skull collapses, the physician will remove the fetus.
The second variation of intact D&E is the com- known monly birth “partial abortion.”5 2d, F. Supp. at 1106; Gynecologic, Obstetric, supra, and Related Surgery, at 1043; App. Stubblefield). of Dr. (testimony This pro- cedure, which used is on rarely, mid- to performed (and late-second-trimester third-trimester) sometimes fe- tuses.6 there are Although variations, it is generally per- 5There is a disagreement among parties regarding appropriate term for this procedure. Congress and state legislatures, numerous in- duding Nebraska’s, have described this procedure as birth “partial abor tion,” reflecting the fact that the fetus is all but born when the physidan causes its death. See this page Respondent prefers to infra refer generically to “intact dilation and evacuation” or D&E” “intact with out reference to whether the fetus is presented head first or feet first. One of the doctors who developed procedure, Haskell, Martin de scribed it as “Dilation and Extraction” or “D&X.” See The Partial-Birth *60 Abortion Ban Act on Hearing H. R. 1833 before the Senate Com mittee on the Judidary, (1995)(hereinafter 104th Cong., Sess., 1st 5 H. R. 1833 Hearing). The Executive Board of the American College of Obste- tridans (ACOG) and Gynecologists refers to the procedure by hybrid the term “intact dilation and extraction” D&X,” or “intact see App. 599 (ACOG Executive Board, Statement on Intact Dilation and Extraction (Jan. 12, 1997)), which term was adopted by AMA, id., the see at 492 (AMA, Report of the Board Abortion). of Trustees on Late-Term I will use the term “partial birth abortion” to describe procedure the because it is the legal term preferred by 28 state legislatures, including the State of Nebraska, and by the- United States Congress. discuss, As I will see infra, at 999-1001,there justification is no for majority’s the preference for the terms “breech-conversionintact D&E” and “D&X”other than the desire to make this procedure appear to be medically sanctioned. 6There is apparently no general understanding of which women are ap propriate candidates the procedure. Respondent uses procedure the on women at 16 to 20 weeks’ gestation. 2d, 11 F. Supp. at 1105. The doctor who developed the procedure, Dr. Haskell, Martin indicated that he
987 dilating physician cervix, formed as After the follows: the by body grab pull the fetus out of will its feet and the fetal vaginal cavity. Supp. the 2d, uterus into the 11 at 1106. F. stage largest development, part At this the head is the body. Assuming physician performed has the dila- procedure correctly, tion will be held inside the head by Hearing Ibid.; uterus woman’s H. R. 1888 8. cervix. position, dangling partly While fetus is stuck in out this body, just completed of the woman’s and inches from a few physician pair birth, the uses an such as a of scis- instrument perforate sors to Supp. tear or at 2d, 1106; the skull. 11 F. App. (testimony Boehm); Hearing 664 6 of Dr. on S. and Joint Judiciary 929 H. R. before Senate on Committee the Subcommittee on the Constitution the House Commit- (1995)(herein- tee on the Judiciary, Cong., Sess., 105th 1st Hearing). after physician S. and R. will H. 929 Joint then either crush the skull use to remove or will a vacuum the brain and other intracranial skull, contents from the fetal collapse pull head, the fetus’ the fetus the uterus. from Supp. 11 F. 2d, 1106.7 partial prom-
Use of the birth abortion achieved publicly inence as national issue after it was described Dr. paper Martin in a Haskell, entitled “Dilation and Extrac- tion for Late Second Trimester Abortion,” the National September Management Abortion Federation’s 1992 Risk paper, Seminar. In that Dr. Haskell described his version as follows: [fetal] extremity vagina, “With a lower in the surgeon fingers uses opposite his to deliver the lower performed the procedure on patients through weeks and on certain patients 25 through 26 weeks. See H. R. 1833 Hearing *61 are, There in addition, two forms of abortion only rarely: that are used hysterotomy, a procedure resembling section, a Caesarean requires the surgical delivery of wall, the fetus through an incision on the uterine hysterectomy. 2d, 11 F. Supp.
extremity, then the torso, the shoulders and upper the extremities. lodges
“The skull at the internal Usually cervical os. there enough is not pass dilation for it to through. The fetus is oriented spine up. dorsum or
“At point, this right-handed the surgeon slides the fingers of the left along hand the back the fetus and ‘hooks’ the shoulders of the fetus with the index and ring down). fingers (palm
“[T]he surgeon pair takes a of blunt curved Metzen- baum right scissors the carefully hand. He advances tip, the curved along down, spine the and under his mid- finger dle until he feels it contact the base of the skull tip under the his finger. of middle “[T]he surgeon then forces the scissors into the base of the skull or into the magnum. foramen Having safely entered the spreads skull, he the scissors en- large the opening. surgeon
“The removes the scissors and introduces a suction catheter into this hole and evacuates the skull contents. With the place, catheter still in applies he traction to removing the fetus, completely from the patient.” H. R. 183S Hearing 3, 8-9.
In cases in which physician the inadvertently dilates great woman to too degree, physician will have to hold the fetus inside the woman so perform that he can proce- (statement dure. Id., at 80 D.) (“In of Pamela Smith, M. procedures, these basically one relies on entrapment cervical of the head, along with a firm grip, help keep baby place while practitioner plunges pair of scissors into skull”). base of baby’s See also 6 S. and H. R. 929 (“I Joint Hearing 45 put could dilapan in for days four or five say doing I’m a D&E procedure and the just fetus could fall out. But that’s really not point. point here is you’re attempting to do an abortion.... Not to see how do *62 instead”) get birth I a live manipulate situation so that I the Haskell). (quoting Dr.
II attempted to along States, has 29 other Nebraska, with Although the Ne- procedure. partial the birth abortion ban only “partial abor- prohibit birth purports braska statute commonly mentioned, I phrase used, as a which is tion,” D&E, of intact version refer to breech extraction majority also be read statute could concludes this proce- ordinary first prohibit D&E, the some future case to majority, such an According to the dure described above. pose some women application a obstacle to would substantial seeking is unconstitu- the statute and, therefore, abortions very step. majority I think first errs with its tional. prohibit the not clear statute does it is Nebraska procedure. partial stat- birth abortion D&E The Nebraska ute issue in this reads as follows: ease performed in this partial-birth be
“No abortion shall necessary save the life procedure state, unless such is endangered by physical a life mother whose including physical physical injury, disorder, or illness, life-endangering physical or aris- a condition caused ing pregnancy Stat. Ann. from the itself.” Neb. Rev. §28-328(1) 1999). (Supp. statute as
“Partial birth abortion” is defined in the performing person “an in which living partially vaginally a unborn the abortion delivers completing killing child before the unborn child delivery. purposes subdivision, the term For of this partially vaginally living child before delivers a unborn killing deliberately and inten- the unborn child means tionally delivering living vagina child, unborn into purpose per- portion thereof, or a substantial forming person performing such that the
procedure knows will kill the unborn child and does kill the unborn §28-326(9). child.”
A Starting with statutory "partial definition of *63 birth abortion,” I highly think it doubtful that the statute could applied be to ordinary D&E. First, the Nebraska statute applies only if physician "partially vaginally delivers a living unborn phrase child,” which is defined to mean “delib- erately and intentionally delivering vagina into the a living unborn child, or a portion substantial §28-326(9) thereof.” added). (emphases When read in context, the "par- term tially delivers” cannot fairly be interpreted to include remov- ing pieces anof unborn child from the uterus one at a time.
The word “deliver,” particularly delivery of an “unborn child,” refers to process of “assist[ing] in giving birth,” suggests which removing an intact unborn child from the womb, pieces rather than of a child. See Webster's Ninth Collegiate New (1991) Dictionary 336 (defining “deliver” as “to assist in giving birth; to aid of”); in the birth Stedman’s (26th Medical Dictionary 1996) (“To ed. assist a woman childbirth”). question, Without one does not “deliver” a child when one removes the child from piece the uterus piece, as in a D&E. Rather, in the respondent words of experts, his one “remove[s]” or “dismember[s]” the child a App. D&E. 45, 55 (testimony Carhart) of Dr. (referring to the act of removing D&E); fetus in (testi- a id., at 150 mony of Hodgson) Dr. (same); id., at 267 (testimony Stubblefield) Dr. (physician fetus). “dismember[s]” the See also H. (Dr. R. 1833 Hearing 3, 8 Haskell describing “deliv- ery” of part D&X). during fetus The majority cites sources using the terms “deliver” and “delivery” to refer to removal of the fetus placenta and the during birth. But these presume sources also an intact fetus, rather than dis- membered Pregnancies parts. fetal See Obstetrics: Normal & Problem (S.
388 Gabbe, Niebyl, J. & Simpson J. eds., 3d 1996) (“After delivery pla- [of placenta], the ed. infant and examined”); 4 Oxford be centa, cord, membranes should (a 1989) (“To (2d Dictionary English 421, disburden ed. woman) childbirth”); Maloy, bring Med- foetus, to to B. (2d 1989)(“To Lawyers Dictionary in the ical ed. aid pla- process bring fetus, childbirth; forth; to deliver centa”). majority pointed in which has to no source “delivery” arm, first a fetal is used refer removal of majority leg, fact, In even the torso, then a then the etc. using the word “de- describes the D&E without to the from the uterus. liver” to refer removal of fetal tissue portion’ (“pulling -a still ante, at 939 a ‘substantial See ibid, added)); (“portion living living (emphasis of a fetus” added)). vagina” pulled (emphasis has fetus been into majority, pulling including one, No understands the act of part “delivery.” off of a fetus to be a meaning clear, To make the statute’s even more the statute *64 applies only physician vaginally “partially if a the delivers living killing unborn child the child and com- unborn before pleting delivery.” phrase to the The statute defines this physician delivery complete mean that the must the the “for purpose o/performing procedure” will kill the unborn phrases child. It is clear from these that the separate kills subsequent the fetus must be and therefore to, “partia[l] deliver[y]” “deliver[y] the from, into the or the vagina” living portion “aof or unborn child substantial arguendo, thereof.” In other if words, assumes, even one leg grasping that dismemberment —the act of a fetal arm or pulling remaining leaving part until it off, comes the of body “delivery,” the fetal still the uterus —is a kind of it place death-causing procedure does not take or “before” the purpose performing” death-causing proce- “for the the majori- it is death-causing procedure. dure; the Under the ty’s by is the view, D&E covered the statute because when pulls doctor on a it fetal foot until offhe has “delivered” tears portion performed a substantial of the and has unborn child known to cause significantly, But, death. the physician has not “delivered” the performing child the before death-causing procedure purpose or “for the performing of” the death-causing procedure; the “delivery” dismemberment is itself the act that causes the fetus’ death.8
Moreover, even if removal of a fetal foot or from arm uterus severing incidental to from rest of the fetal body delivery could amount to purpose or before, of, performing a death-causing procedure, delivery would not be of an “unborn child, portion or a substantial thereof.” And even supposing that a fetal foot or arm could conceiv- ably be a portion” “substantial of an child, unborn both the common understanding “partial birth abortion” and the principle that interpreted statutes will be to avoid consti- tutional difficulties require would one to read “substantial” otherwise. See infra, 996-997.
B Although §28-826(9) I think that the text of any forecloses application of the Nebraska statute procedure, to the D&E even if any there were ambiguity, ambiguity would be conclusively by reading resolved light definition in fact that Nebraska statute, its own applies only terms, “partial §28-328(1). birth abortion,” By ordinary rules statutory interpretation, any we should ambiguity resolve specific in the statutory definition comport with the com- mon understanding “partial birth abortion,” for that term itself, no less than specific part definition, of the stat-
8The majority argues that
the statute does not explicitly require that
*65
the death-causing procedure be separate from the overall abortion proce
dure. That is beside
point;
under the statute the death-causing proce
dure must be separate from
delivery.
Moreover,
it is incorrect
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”
“an
abortion procedure”) as well as
ato component of the
(“for
overall abortion procedure
purpose
per
forming a procedure...
child”).
will kill the unborn
(1984)(“We
ute. United States v. Morton,
“Partial birth abortion” ais term that has been used majority legislatures, of state the United Congress, States journals, physicians, medical reporters, judges, even and has never, as far as I am aware, been used to refer to the D&E procedure. The number of instances “partial in which birth equated abortion” has been with the breech extraction form (otherwise “D&X”)10 intact D&E known as explicitly and contrasted with D&E, are myself numerous. I limit will just examples. a few
First, numerous medical equated “partial authorities have birth abortion” with D&X. The AMA has done so and has recognized that the is “different from other de structive techniques because the fetus ... is killed outside of the womb.” AMA Board of Trustees Factsheet (June 1997), on H. R. 1122 App. to Brief for Association of Physicians American Surgeons et al. as Amici Curiae 1. Medical literature equated has also “partial birth abortion” with D&X distinguished from D&E. See Gynecologic, Obstetric, and Surgery, Related Sprang 1043; & Neerhof, Banning Rationale for Abortions Pregnancy, Late in (Aug. 26,1998); JAMA 744 Bopp & Cook, Partial Birth Abor tion: Final Frontier Jurisprudence, Abortion 14 Is (1998). sues in Law Medicine 3 Physicians equated have “partial birth abortion” with D&X. See Planned Parent Doyle, (WD hood v. Supp. 1999) 44 F. 2d 975, 999 (citing Wis. testimony); Richmond Medical Center Women v. Gil- for 9It is certainly true that an undefined term be must construed in accord ance with its ordinary and plain meaning. FDIC v. Meyer, 471, 510 U. S. (1994). But this does not mean that the ordinary and plain meaning of a term is wholly irrelevant when that term is defined. noted, As swpm, there is no consensus regarding which of see n. these terms is appropriate to describe procedure. assume, I as the majority does, that are, the terms here, purposes interchangeable.
994 (ED 1999) Supp. more, (citing 55 F. 2d 441, 455 Va. testi- mony). respondent’s Even expert, Phillip Stubblefield, Dr. acknowledged that breech extraction intact D&E is referred lay press to in “partial App. as birth abortion.” Second, repeatedly acknowledged the lower courts have “partial commonly birth abortion” is understood Family mean Planning D&X. See Little Rock Services v. (CA8 1999) (“The Jegley, 192 'partial- 794, F. 3d 795 term commonly birth abortion,’ ... is to refer understood to a particular procedure also intact ex- known as dilation and traction”); Planned Parenthood Iowa, Greater Inc. v. (CA8 1999)(“The Miller, 195 [Iowa] F. 3d pro- 386, 387 Act 'partial-birth hibits commonly abortion,’ a term understood to refer to a called dilation and extraction (D&X)”). The District Court in this case noted “[p]artial-birth medically abortions” are “known as intact di- lation and extraction or Supp. D&X.” 11 F. 2d, 1121, n. 26. majority “partial Even the notes that birth abortion” “ordinarily a term procedure.” associated with the D&X Ante, at 942. “partial
Third, the term birth abortion” used has been legislation state on by Congress 28 occasions and twice. “partial term birth adopted by Congress abortion” was in both 1995 and separate pieces in two legislation 1997 prohibiting procedure.11 In considering legislation,
11Congressional legislation prohibiting the procedure was first intro duced in 1995, June with the introduction of the Partial Birth Abortion Act, Ban H. R. 1833. measure, This which sponsored was by individ Members, ual House passed both by Houses wide margins, Rec. Cong. (1995); 142 Cong. (1996), Rec. 31169 but was vetoed President id., Clinton, see at 7467. The House voted to overridé Sep the veto on id., 19,1996, tember 23851; see however, failed to Senate override id., by a margin votes, of 13 see at 25829. In the Congress, next individual House cosponsors reintroduced the Partial Birth Abortion Ban Act as 929, H. R. which was later replaced in the House with H. R. 1122. See H. R. (1997). 105th Cong., 1st Sess. The House and Senate again adopted the legislation, amended, by wide margins. See 143 on the and debates conducted numerous Congress hearings *67 as birth abortion” which described issue, repeatedly “partial Record distinct from D&E. The Congressional procedure contained numerous references to Dr. Haskell’s procedure. g., e. H. R. 77; 6 and H. R. 929 See, 3,17, 52, S. Hearing 45. have taken time, Joint Since that debates Hearing place have in state 30 of which across the country, legislatures voted to two With prohibit procedure. exceptions, that voted to ban the referred legislatures procedure it as birth also referred abortion.”12 These debates “partial to Dr. Haskell’s as Both the evidence be- D&X. fore the and the themselves legislators equated legislators birth abortion” The fact that States “partial D&X. with abortion,” defined adopted birth legislation banning “partial it in similar definition,13 and, or identical to Nebraska’s way (Mar. 20,1997); id., Cong. 20,1997). Rec. President (May H1230 at S4715 id., (Oct. Clinton 10,1997). Again, again vetoed the bill. See H8891 the veto in passed override the House and fell short in the Senate. See id., 18,1998). 144 Cong. 23,1998); Ree. H6213 (July at S10564 (Sept. (an Consistent Ohio practice with the of Dr. Haskell Ohio practitioner), extraction,” referred to the “the “dilation and defined as termination of a pregnancy by human a suction device purposely inserting into the skull of a fetus to Ann. remove Ohio Rev. Code brain.” 2919.15(A) (1997). § “partially-born” Missouri refers to of a killing 2000). (Vernon §565.300 infant as “infanticide.” Supp. Mo. Stat. Ann. 13For the most these part, States birth abor “partial defined term tion” similar using language congressional to that in the 1995 proposed legislation, that is “an abortion in which the abor the person performing tion partially vaginally delivers a killing before the fetus and living fetus e. g., delivery.” See, R. 1833 completing See H Alaska Hearing §18.16.050 Stat. (1998); §13-3603.01 Ann. Ariz. Rev. Ann. (Supp. Stat. 1999); 2000); §5-61-202 Ark. (1997); §390.011 Code Ann. Fla. (Supp. Stat. Stat., 720, (1999); §513/5 Ill. Comp. §16-18-2-267.5 ch. Ind. Ann. Code (West §333.17016(5)(c)(West 1999); Supp. Comp. Supp. Mich. Laws Ann. 2000); §41-41-73(2)(a) §44- 1998); Miss. Code Ann. S. C. Ann. (Supp. Code 41-85(A)(1) (1999 States, Nebraska, Cum. Supp.). including Other see §28-326 Neb. 1999), Rev. Stat. Ann. defined abortion” (Supp. “partial-birth using similar to language that 1997 proposed congressional used doing repeatedly so, referred to the breech extraction
form of intact repeatedly D&E and distinguished it from or- dinary D&E, makes it inconceivable that the “partial term birth abortion” could reasonably interpreted be to mean any
Were there
doubt remaining whether the statute could
apply to a
procedure,
D&E
ground
doubt is no
for invali-
dating the statute. Rather," we are bound to first consider
whether a construction of the
fairly possible
statute is
would avoid the
question.
constitutional
Erznozwik v. Jack-
(1975) (“[A]
sonville, 422 U.
S.
state statute should
not be
facially
deemed
invalid
readily
unless
subject
is not
*68
to narrowing
a
by
courts”);
construction
the state
Frisby v.
(1988) (“The
Schultz,
legislation, which retained the definition of partial birth abortion used in bill, the 1995 that “an is 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 a vagina fetus, living or a substantial portion of, there for the purpose performing a the physician knows will fetus, kill and Mils the fetus.” See Partial Birth Abortion 1997, Ban ofAct 1122, 105th H. R. Cong., (1997). 1st Sess. See, e.g., Idaho §18-613(a) Code 1999); (Supp. Iowa Code Ann. 707.8A(l)(e) § 1999); (Supp. N. J. §2A:65A-6(e) Stat. (West Ann. Supp. 2000); Ann., OMa. Stat. 21, §684 Tit. 2000); (Supp. §23- R. I. Gen. Laws 4.12-1 1999); (Supp. Tenn. Code §39-15-209(a)(l) Ann. (1997). majority application of the Nebraska contends because pose difficulties statute to D&E would constitutional form of second- common eliminate most would majority’s con- the extent that trimester abortions. To statute there no doubt that the Nebraska true, tention is is narrowing susceptible Nebraska of a construction is perform preserve physicians’ ability to courts that would a Carpenter, 434, N. W. 427, v. D&E. See State Neb. (“A (1996) so as penal be construed 2d statute must 518, 524 reasonably requirements if such can to meet constitutional done”). requires physi- example, that the For the statute be vagina "deliberately delive[r] intentionally into the cian living portion be- thereof,” a a child, unborn or substantial “sub- performing death-causing procedure. The term fore a narrowing portion” susceptible construction stantial is procedure. definition of One that would exclude the D&E wholly “being largely the word is but not “substantial” Collegiate Dic- specified.” which Ninth New Webster’s tionary, Underwood, 487 U. S. 1176. See Pierce v. (1988) (describing meanings “sub- 564 stantial”). of the term different “almost
In can mean words, other “substantial” thing nothing a court could else, all” of the If denominated. “largely, require construe fetus but the statute that the be wholly,” physician not delivered out of the uterus before performs unborn kill the that he knows will *69 should) (and Or, child. as I have could discussed, a court purpose procedure” performing construe “for the of a procedure.” purpose performing separate the mean “for a of J-H HH I—I majority reject plain The and lan- Justice O’Connor guage statutory that refuse read defini- definition, light statutory “partial tion in of abor- reference to birth ignore tion,” and avoidance. doctrine of constitutional doing, they statutory analysis In so own. offer scant of their (majority opinion); ante, at 940-945 ante, See 938-940 cf. at 998
(majority opinion); ante, at 948-949 (O’Connor,
J., concur
In
ring).
their brief
analyses,
and Justice
majority
all of the
disregard
O’Connor
statutory
language except
the final definitional sentence,
thereby
the funda
violating
mental canon of construction that statutes are to be read as
a whole. United States Morton,
v.
467
S.,
(“We
U.
do
not...
construe
statutory
isolation;
phrases
we read stat
utes as a whole. Thus, the words [in
must be
question]
read
light
(footnote
immediately following phrase”)
omit
ted)); United States v. Heirs
Boisdoré,
offer interpretation five for their I statute. will address them in turn. majority appears only accept, obliquely,
First, if argument by respondent: “partial made If the term birth only abortion” refers to breech extraction form of intact Legislature D&E, or D&X, the Nebraska should have used the medical nomenclature. See 943 (noting ante, at that the Legislature rejected Nebraska an amendment that would re- place “partial extraction”); birth abortion” with “dilation and Respondent Brief for 4-5,
There requirement is, course, no legislature that a use terminology accepted by community. legisla- medical A ture no using a could, doubt, draft statute “heart term attack” preferred “myocardial even if the community medical Legislatures, infarction.” in fact, sometimes use medical ways terms that conflict with their definitions, clinical see, (CA4 g., 1995) e. Barber v. Director, 48 3d (noting 899, F. that “pneumoconiosis” the medical only definition of a sub- set of the afflictions “pneu- that fall within the definition of Act), Lung moconiosis” in the practice Black is unre- that long legal markable so adequately term is defined. today, suggested have legislature never, We until may only accepted by use words every individual physician. traditionally legislators Rather, have “we left to the task defining terms of a medical legal signifi- nature that have (1997). cance.” Kansas Hendricks, v. U. S. And we have noted that “[o]ften, those definitions do fit not precisely employed with the definitions the medical com- munity.” Ibid. simply it is many
Further, not true that the legislatures, including prohibited “partial Nebraska’s, birth abortion” chose use term known place in the vernacular in accepted of a term with an meaning. clinical When Partial-Birth Abortion Ban Act of 1995 was introduced in Congress, the term “dilation and appear extraction” did not any dictionary. medical g., e. See, Borland’s Illustrated *71 (28th 1994); Medical Dictionary 470 ed. Stedman’s Medical Dictionary, at Encyclopedia 485; Dictionary Miller-Keane & (6th Nursing, 1997); Medicine, & Health 460 Allied ed. The Sloane-Dorland Medical-Legal Dictionary Annotated (1987); I. Melloni, J. HarperCollins Dox, Eisher, The & G. (1993). Illustrated Medical Dictionary 131 term did The not appear descriptions leading of abortion methods in medi g., Cunningham e. G. cal See, textbooks. et al., Williams Ob (20th 1997); stetrics 579-605 ed. & Obstetrics: Prob Normal Pregnancies, lem at 1249-1279; Hern, W. Abortion Practice (1990). any Abortion reference also books omitted refer g., term. See, e. ence to the Inducing Modern Methods (D. Abortion 1995); Baird, D. Grimes, & P. Van Look eds. (1998).15 Surgical E. Glick, Abortion Not did meaning D&X no have medical at the time, but the ambiguous term is on its face. “Dilation and extrac- tion” would, on its accurately any face, procedure describe in which the woman is “dilated” and the “extracted,” fetus supra, including D&E. See “par- at 984-985. In contrast, tial birth abortion” advantage faithfully has the describing legislature meant to address because the fact that a “partially fetus is during born” indisputable. “partial term birth abortion” is com- pletely accurate and descriptive, perhaps which is the reason why majority objectionable. Only finds it a desire to find fault any cost explain could willingness the Court’s penalize Legislature the Nebraska failing for replace 15Nor, for matter, did the “intact terms dilation and extraction” or “intact dilation and evacuation” appear in textbooks or medical dictionar supra, ies. See at 999 and fact, this page. In respondent’s preferred term “intact D&E” would compound, rather than remedy, any confesión regarding the statute’s meaning. As is evident from the majority opinion, there is no consensus on what ante, this term means. Compare (describing “intact D&E” to refer to both breech and presentation vertex procedures), with App. Henshaw) 6 (testimony Dr. (using “intact D&E” to mean only breech procedure), id., with at 275 (testimony of Dr. Stub- blefield) (using “intact D&E” to to delivery refer of fetus that has died útero). descriptive vague term with a one. is, therefore, There nothing majority’s argument to the Legis- that the Nebraska declining lature is at fault for to use the term “dilation and extraction.”16 majority
Second, faults Legislature the Nebraska failing to “track the medical differences between D&E D&X” failing and for “suggest application that its turns portion on whether a body of the fetus’ is drawn into the vagina part process of a to extract an intact fetus after *72 collapsing the opposed process head as to a that would dis- member the fetus.” Ante, I already 939. explained have why the Nebraska statute reflects the medical differences D&X between D&E. To majority and the extent the means Legislature that the Nebraska should have “tracked the by medical adopting differences” one of the informal defini- tions argument of D&X, this is without merit; none of these definitions would have been accomplish effective to purpose preventing State’s partially abortions of born fe- example, tuses. Take, for ACOG’sinformal definition of the term “intact According to D&X.” ACOG, “intact D&X” (1) following steps: consists four deliberate dilation of 16The fact that the statutory “partial term birth abortion” may express a political or moral judgment, whereas “dilation and not, extraction” does is irrelevant. It true certainly technical terms are frequently (Of empty of normative course, content. the decision to use a technical term can itself be ante, passim (majority normative. See But, opinion)). long so as statutory terms are defined, adequately there is no requirement that Congress or state legislatures draft statutes using morally agnostic See, e. terminology. §922(v) g., U. S. C. it unlawful “manu (making to facture, transfer, or possess a semiautomatic weapon”); assault Kobay- ashi & re 101 al., Olson et In Street: Legal A Economic California Analysis of Strict Liability for the Manufacture and Sale of “Assault Weap ons,” (1997) (“Prior 8 Stan. L. & 41,43 Rev. Pol’y 1989, to the term 'assault weapon’ did not exist in the lexicon firearms. It is a term, political developed by anti-gun publicists to expand the category of 'assault rifles’ so as allow an on attack many as additional firearms possible on Meese, basis undefined appearance”). ‘evil’ See S., also 481 U. 484-485. (2) usually the cervix, sequence over a days; instrumental (8) conversion of the footling fetus to a breach; breech extrac- (4) body tion of excepting partial the head; evacua- tion of the living intracranial contents of a fetus to effect vaginal delivery of a dead but App. otherwise intact fetus. (ACOG 599-600 Executive Board, Statement on Intact Dila- (Jan. tion 12,1997)). and Extraction emphasizes ACOG all “unless present four are sequence, proce- elements dure is not an intact D&X.” Id., at 600. Had Nebraska adopted a prohibiting statute “intact and defined D&X,” along the lines of the physicians ACOGdefinition, attempting perform partially abortions on born fetuses could have easily evaded Any wishing statute. perform doctor partial birth abortion simply liability could avoid under such by a statute performing procedure, as re- spondent does, when presented the fetus is first, feet thereby avoiding necessity of “conversion of the fetus to footling breech.” Id., at aOr, could doctor convert the fetus without instruments. Or, the doctor could cause the fetus’ “partial death before evacuation of the intracranial contents,” id., at plunging scissors into the fetus’ *73 example. heart, for A doctor could attempt even to evade by chopping statute prior off two toes completing fetal to delivery, preventing arguing State from that the fetus was “otherwise intact.” Presumably, however, Nebraska, many legislative other adopted partial that bodies birth abortion bans, not were concerned with whether death was by injury inflicted to the brain or the heart, whether the fetus was converted with or without or instruments, whether the fetus died with its toes legislative attached. These bod- ies I presume, were, concerned with whether the child was partially born physician before caused its death. The legislatures’ evident concern was permitting with proce- a dure that resembles infanticide and threatens to dehumanize They, fetus. presumably therefore, adopt declined to a ban by on “intact D&X,” defined ACOG, because would have been purpose. Again, ineffective majority is faulting legitimate legislative for a Nebraska calculation. majority
Third, the
argue
and Justice
O’Connor
this
generally
Court
interpre-
defers to lower federal courts’
tations of
(majority
state
opinion);
Ante,
law.
at 940
ante,
at 949
concurring).
J.,
However,
decision
(O’Connor,
drafted
inexplicably
O’Connor, which she
fails
Justice
(1988),
Frisby
discuss,
v. Schultz,
“[Wjhile ordinarily we defer lower court construc- tions of state invariably statutes, we do not do so. We particularly are reluctant to defer when the courts lower plain have fallen into precisely error, which is the situa- presented tion they here. To the extent endorsed reading broad of the ordinance, the lower courts ran afoul of the principle well-established that statutes will interpreted be to avoid constitutional Id., difficulties.” (citations omitted). at 483
Frisby, why then, exactly identifies opin- the lower courts’ ions here are not entitled to deference: The lower courts identify failed to the narrower that, construction consistent with any text, would avoid constitutional difficulties. majority
Fourth, speculates that some Nebraska prosecutor may attempt to stretch the apply statute to it to D&E. But a state statute not unconstitutional on its face merely imagine because we can aggressive prosecutor an who attempt overly would aggressive application “‘[wjords statute. We have inevitably noted that contain ” germs uncertainty.’ Broadrick v. Oklahoma, 413 U. S. *74 (1973). 608 601, give do not We statutes the broadest defi- imaginable. nition Rather, ordinary we ask “the whether 1004
person exercising ordinary
sufficiently
commonsense can
un-
Ibid,
comply
[the
derstand and
statute].”
with
[quoting
Civil Service Comm’n v. Letter
Carriers,
U. S.
548,
(1973)).
legal
might
While a creative
mind
be able to stretch
plain
language of
apply
the Nebraska
D&E,
statute
obey
“citizens who desire to
the statute will have no diffi-
culty in understanding
Kentucky,
it.” Colten v.
407 U. S.
(1972)(internal
omitted).
104,110
quotation marks
Finally, majority
length
discusses at some
the reasons
it will not
interpretation
defer to
proffered
of the statute
by the
Attorney
Nebraska
despite
Attorney
General,
repeated representations
General’s
to this Court that his
State will
apply
partial
not
birth abortion statute to
D&E. See Brief for Petitioners
Arg.
11-13; Tr. of Oral
10-
11. The fact that the Court declines to defer to the inter
pretation
Attorney
General
not, however,
is
a reason
give
contrary
statute a
representation. Even without
according the Attorney
any particular
General’s view
re
spect,
agree
we should
interpretation
with his
because it is
undoubtedly the correct one. Moreover, Justice
O’Connor
has noted that the
adopt
interpreta
Court should
a narrow
tion of a state statute when it
supported by
principle
interpreted
statutes will be
to avoid constitutional dif
ficulties
by
as well as
representations
“the
counsel...
argument.”
oral
Frisby
supra,
v. Schultz,
at 483. Such an
approach is particularly appropriate in this case because, as
majority
notes, Nebraska courts accord the Nebraska At
torney General’s interpretations of state statutes “substan
tial weight.” See State v.
Coffman,
561,
Neb.
560,
(1983).
N.
W. 2d
any renegade prosecu
Therefore,
tor bringing
charges against
criminal
physician
per
forming a D&E would find himself confronted with a con
trary interpretation
Attorney
the statute
the Nebraska
General, and, I
judge
possessed
assume,
who both
common
*75
sense and was aware
lenity.
of
rule of
See State v.
White, 254
(1998).17
Neb. 566, 575,
rH <! Having resolved that partial Nebraskas birth abortion permits statute perform doctors to D&E ques- abortions, the tion remains whether a State can constitutionally prohibit partial birth abortion without a excep- health Although tion. majority and Justice pur- O’Connor port rely on the standard Casey articulated in plural- ity in concluding that a may they State not, in disregard fact entirely.
A Though Justices and Souter de- O’Connor, Kennedy, Casey, clined ground on the decisis, stare to reconsider enjoys whether any abortion protection, constitutional U. S., at (majority 844-846,854-869 opinion); id., (plu- at 871 opinion), rality Casey professed part, to be, in repudiation of Roe and progeny. its Casey The expressly plurality noted prior that case law had undervalued the State’s interest potential life, 505U. S., at 875-876, and had regu- invalidated lations of “in no real deprived sense women the ultimate (“Roe decision,” id., at 875. See id., at 871 v. speaks Wade with clarity in establishing ... ‘im- State’s portant legitimate potential interest in life.’ por- That 17The majority on relies Justice Scalia’s observation in Crandon v. United, States, 494 U. 152 (1990), S. that “we have never thought interpretation of those charged with prosecuting criminal statutes is enti tled to Id., deference.” at But 177. Justice Scalia was commenting on the United States Attorney General's overly broad interpretation of a fed eral statute, which, deference said, as he would “turn the normal con struction of criminal statutes upside-down, replacing the doctrine of lenity with a doctrine of Id., severity.” Here, the Nebraska Attorney has General adopted a narrow view of a statute, criminal one that com ports (not with the rule lenity to mention the plain statute’s meaning).
tion the decision in given Roe been has too little acknowl- (citation edgment” omitted)). plurality repeatedly recognized weighty the States’ interest in this area. See (“State id., may express profound ... respect for the (“the unborn”); life of the id., at profound State’s interest *76 life”); potential id., (majority at 850 opinion) (“profound spiritual and implications moral of terminating pregnancy, a stage”). even in its earliest plurality expressed And, the repeatedly legitimate the States’ regulating role in abortion (“The procedures. id., See very notion that the State has potential a substantial interest in life leads to the conclu- sion regulations that not all unwarranted”); must be deemed (“Not id., at 875 governmental all [with intrusion abortion] unwarranted”). necessity is of According plurality: to the fact “The that a law which purpose, serves a valid one not designed right to strike at the itself, has the incidental effect making it more expensive difficult or more procure an enough cannot be to invalidate Id., it.” at 874. Casey plurality
The adopted therefore “Only the standard: regulation where state imposes an undue burden on a wom- ability an’s to make this decision power does the of the State reach into the liberty protected heart of the by the Due Proc- ess regulation Clause.” Ibid. A imposes bur- “undue den” if it “has the effect placing a substantial obstacle path in of a woman’s choice.” Id., at 877.
B question is There no that the State of Nebraska has a valid designed interest —one not to strike right at the itself—in prohibiting partial birth Casey abortion. itself noted that may “express profound States respect for the life of the un- may, born.” Ibid. States express without a doubt, this profound respect by prohibiting procedure approaches thereby infanticide, and dehumanizes the fetus and trivial- izes human life. The recognized AMA has proce- this dure “ethically different from other destructive abortion techniques normally because twenty the fetus, or weeks longer gestation, is killed outside the 'partial womb. gives autonomy birth’ separates fetus an which it from right of the woman to choose treatments for her own body.” AMA Board of Trustees on Factsheet H. R. 1122 (June 1997), in App. to Brief for Association of American Physicians Surgeons et al. as Thirty Amici Curiae 1. States have concurred with this view.
Although description procedure of this set forth above should be sufficient demonstrate the resemblance between partial birth abortion and infanticide, the tes- timony partial of one who nurse observed a birth abortion point vividly: makes the more even baby’s fingers
"The clasping little were unclasp- ing, kicking. and his little feet were Then the doctor stuck the scissors in the baby’s back of his head, and the jerked arms like a out, startle like reaction, like flinch, *77 baby a does going he he when thinks is to fall. opened
“The up high- doctor the scissors, stuck a powered suction opening, tube into the and sucked baby’s the brains baby out. Now the went completely (statement limp.” Hearing H. R. of Brenda Shafer). Pratt question
The legitimate whether States a have interest banning require the authority. does not additional ante, See at dissenting).18 961-964 (Kennedy, J., In a civi- 18 1read the majority opinion concede, to if implicitly, that the State has a legitimate in banning interest this dehumanizing procedure. The question threshold Casey under is whether the abortion regulation serves a (1992). legitimate state interest. 505 U. S. Only if the statute serves legitimate state interest is it necessary to consider whether regulation imposes a substantial obstacle to women seeldng an abortion. Ibid. fact that the majority considers whether Nebraska’s statute creates substantial obstacle suggests that the Members of the majority Ginsbukg other than Justice Stevens and Justice have rejected respondent’s threshold argument that no statute serves legitimate state purpose. lized society, answer is too obvious, and the ar- contrary too guments offensive, to merit further But discussion. see (Stevens, ante, at 946-947 J., that concurring) (arguing decision of BOStates to ban the birth partial abortion proce- dure was irrational” “simply because other forms of abortion (Ginsburg, were “equally ante, gruesome”); 961-952 J., (similar).19 concurring) Ginsburg 19Justice seems suggest that if even the Nebraska stat
ute does not
an
impose
undue burden on women seeking abortions, the
is
statute
unconstitutional
it has
because
the purpose of imposing an undue
Ginsburg’s
burden.
Justice
is,
view apparently, that we
presume
can
purpose
unconstitutional
because
regulation
not
designed
save
any fetus from “destruction” or protect the health of pregnant women and
must, therefore,
so
designed
be
to “chip away
Ante,
at... Roe.”
at 952.
This is a strange claim to make with respect to legislation that was
enacted in 30 individual States and was enacted in Nebraska
aby vote of
1,
to45
Nebraska Legislative Journal, 95th Leg.,
Sess.,
(1997).
1st
Moreover, in support of her assertion
Legislature
Nebraska
acted
with an unconstitutional purpose, Justice
Ginsburg
is apparently unable
muster
a single shred of evidence
Nebraska legislation was
enacted to prevent women
(a
from obtaining abortions
purpose to which
it would be entirely ineffective), let alone the kind
persuasive
proof we
would require before
that a
concluding
legislature acted with an unconsti
tutional intent.
In fact,
as far
Ginsburg’s
tell,
can
I
Justice
views
regarding the
motives
the Nebraska Legislature derive from the views
aof dissenting Court of Appeals judge discussing the
of legis
motives
lators of other States.
Ginsburg’s
Justice
is,
presumption
in addition,
squarely inconsistent with Casey,which stated that States may enact leg
islation to “express profound respect for the life
unborn,”
S.,
505 U.
and with our opinionin Mazurek v. Armstrong,
(1997)
C question, The next therefore, is whether the Nebraska statute is unconstitutional because it does not contain an ex- ception that would allow procedure use whenever “ ‘“necessary, appropriate judgment, medical pres- ”’ ervation of the . . . health of the Ante, mother.” at 930 (majority opinion) (quoting Casey, S., 505 U. at in turn quoting 164-165) deleted). Roe, 410 S.,U. at (emphasis Ac- cording to majority, such a exception health required is here because there opinion is a among “division some med- experts ical over generally [than whether D&X is safer D&E], and an absence of controlled medical studies that help would answer questions.” these medical Ante, at 936- 937. In other words, unless conclusively a State can estab- lish that an abortion is proce- no safer than other dures, the regulate State cannot without including a exception. health agrees. Justice O’Connor Ante, at 947-948(concurring opinion). by The rule set forth majority and dramatically expands Justice O’Connor prior on our abortion cases any threatens undo state regulation of procedures. abortion majority and Justice suggest that their O’Connor
rule is dictated straightforward application of Roe Casey. Ante, (majority opinion); 929-930 ante, 947-948 J., concurring). But that simply not true. In (O’Connor, Casey, Roe and the Court may stated that the “regu- State proscribe, late, and even except where it is neces- sary, in appropriate judgment, medical preservation for the of the life or health of the mother.” supra, Roe, at 165; Casey, atS.,U. Casey said exception that health must be available if “continuing pregnancy her would consti- tute a threat” to the woman. (majority Id., opinion) at 880 added). (emphasis Under these if eases, a State seeks to prohibit abortion, even if temporarily particu- or under lar circumstances, Casey says may, that it (plu- id., at 879
rality opinion), exception the State must make an for cases in which the endangered life or by health of the mother is continuing pregnancy. These cases addressed situation in which a woman must obtain an abortion because of some threat to pregnancy. her health from continued But Casey say nothing Roe and phy- at all about eases in which a prohibited sician considers one pref- method of abortion to be permissible erable to Today's majority methods. and Jus- Casey apply twist Roe and to the situation tice O'Connor in which a woman desires—for whatever reason—an abor- tion and by wishes to obtain particular the abortion some ante, method. (majority opinion); See at 929-931 ante, at (concurring 947-948 opinion). majority In other words, and Justice distinguish fail to between cases O'Connor which health require concerns a woman to obtain abortion and cases in which health concerns cause woman who de- (for reason) sires an abortion prefer whatever one method over another.
It is clear that the understanding Court's awhen health exception required prior is not mandated our cases. In fact, we post-Casey, approved have, regulations of methods conducting despite exception. the lack of a health (1997) Mazurek Armstrong, v. (per 520 U. S. 968, cu- riam) (reversing Court Appeals holding plaintiffs that challenging requirement only physicians perform that abor- success’”); tions had a “'fair chance of id., at 979 (Stevens, dissenting) (arguing J., regulation designed was difficult). make abortion more one And can think of vast bodies of law regulating abortion valid, that are one would hope, despite the lack exceptions. of health example, For physicians presumably prohibited are using from abortifa- cients that approved by have not Drug been the Food and Administration physicians even if reasonably some believe these abortifaeients be for women than would safer *80 existing abortifaeients.20 majority effectively provides
The Casey concedes that no support exception by for relying its broad rule health on live-Casey authority, including ante, see at a case that specifically disapproved Casey was giving inof for too little weight Casey, supra, to the State’s interest fetal life. See at (overruling parts Thornburgh 869,882 the v. American College Gynecologists, Obstetricians 747 and 476 U. S. (1986),that were “inconsistent with Roe’s that the statement legitimate State has a promoting poten- interest in the or life 870); tial life of the (majority unborn,” 506 U. atS., id., at 893 opinion) (relying Thornburgh, supra, on (Burger, at J., 783 C. dissenting), proposition for the expanding that the Court was case). on Roe in that joins Indeed, Justice who O’Connor, opinion, the Court’s Thornburgh was on the Court for and arguing was in dissent, that, stand- under undue-burden ard, the statute at issue S., was constitutional. See U. at (arguing 828-832 challenged that the state statute was not burdensome”). “unduly majority’s ease to this resort proves my point holding today that the assumes that standard Casey joint set opinion longer forth in the is no governing.
And if even I were to pre-Casey assume that the standards govern, by majority provide cases cited support no proposition partial that the birth ban must below, As I discuss the only question Casey after is whether a ban on partial birth abortion without a exception imposes health an “undue bur den” aon woman seeking an abortion, meaning that it creates “substan tial obstacle” for the woman. I assume that the Court does not discuss the health risks burden, with respect to undue suggests instead health risks are relevant to the necessity of a health exception, because a marginal increase in safety risk for some is clearly women not an undue burden within the Casey. At bottom, meaning the majority is using health exception Casey’s language water down undue-burden standard.
include a health exception because some doctors believe that
partial birth abortion is
In Thornburgh,
safer.
Danforth,
and Doe, the Court addressed health exceptions for cases in
which
pregnancy
continued
pose
would
a risk to the woman.
Thornburgh, supra,
770;
Planned Parenthood
Central
Mo. v.
(1976);
Danforth,
U. S.
Doe Bolton,
v.
410 U. S.,
And in Colautti
197..
v.
(1979),
Franklin,
As if this state of affairs were enough, not bad major- ity expands exception the health rule Casey articulated in one equally pernicious additional and way. Although Roe Casey and mandated a exception health for cases in which abortion is “necessary” for a woman’s majority health, the procedure concludes that a is “necessary” if any it has com- parative health Ante, benefits. at 937. In other words, ac- cording to majority, long so as a point doctor can sup- to port profession (or in the woman’s) for his preferred procedure, it is “necessary” the physician and is entitled to perform it. Ibid. See also ante, at 952 (Ginsburg, J., con- curring) (arguing that a State cannot constitutionally “sto[p] a woman choosing from procedure her ‘reasonably doctor ” interest). believes’ is in her best But such excep- health requirement tion Casey’s eviscerates undue-burden standard imposes unfettered abortion on exception demand. The entirely swallows the rule. In regulation effect, no of abor- procedures tion permitted is because always there will be support some procedure for a always will there be some doctors who conclude procedure that the preferable. is If Nebraska partial reenacts its birth abortion ban with a health exception, the State will not prevent be able to physi- cians like Dr. Carhart using partial from birth abortion as a procedure. routine abortion This Court has expressed now plausible” support “highly its own conclusion that there is partial for the safer, view that birth abortion is which, majority’s is view, means that the therefore “necessary.” Any per- Ante, at 937. who wishes to doctor form such a under the will be new statute able to impunity. do so with assur- Therefore, Justice O’Connor’s failings ance that the constitutional of Nebraska’s statute can easily illusory. majority’s be fixed, ante, at The 950-951, exception fig barely covering insistence on a health is a leaf hostility any regulation by its hos- States —a tility Casey purported reject.21
D majority assiduously addressing avoids the actual Casey prohibiting partial standard articulated in —whether birth exception poses abortion without a health a substantial obtaining obstacle to S., abortion. 505 U. at 877. And good reason: Such an does not exist. There are obstacle why identify two essential reasons the Court cannot sub- identify any stantial obstacle. First, the Court real, cannot any ability much less substantial, barrier to woman’s to ob- tain an abortion. And second, the Court cannot demon- any strate that such obstacle would affect number a sufficient justify invalidating women the statute on its face.
1 Casey joint opinion The makes clear that the Court should not strike regulations down state of abortion based on the
21 majority’s The conclusion that health are when exceptions required ever there is any support for use a procedure troubling is particularly because the majority does not indicate whether an exception physical health only is or required, whether the would have account exception to for “all emotional, familial, physical, psychological, and the wom factors — Bolton, an’s age the Doe to well v. being patient.” the —relevant (1973). 179, U. S. See also Voinovich v. Women’s Medical Profes sional Corp., (1998) J., 523 U. (Thomas, joined by S. Rehn certiorari). quist, J., Scaua, J., C. from denial of dissenting fact that might some women marginally higher face a health risk from regulation. the Casey, In upheld the Court a 24- waiting period hour though even the Court credited evidence that for some delay the practice, women would, in be much longer than 24 though hours, and even undisputed it was any delay obtaining in impose abortion would additional health (Blackmun, risks. Id., id., at 887; at 937 concurring J., part, in concurring judgment part, in in and dissenting in (“The part) District found Court mandatory the 24-hour delay delays could lead to in excess of 24 hours, thus increas- risks”). ing health Although some women would be able to avoid waiting period because of a “medical emergency,” emergency medical exception in the statute was limited to those delay women for whom would create risk “serious of substantial and impairment irreversible major of a bodily Id., function.” (appendix (internal joint opinion) quotation omitted). marks question, Without there were women for regulation whom the impose would some addi- tional health risk who would not fall within the medical emergency exception. The Court despite concluded, certainty of this increased risk, that there showing was no that the any on burden women was substantial. Id., at in ease which this Court has overturned a State’s
attempt prohibit particular form of abortion also demon- marginal strates that a increase health risks is not suffi- cient to create an undue burden. In Planned Parenthood Central Mo. v. (1976), 428 U. Danforth, S. 52 the Court struck down a regulation state because State had out- lawed the method of abortion used in 70% of abortions and because alternative methods were, the emphasized, Court “significantly dangerous more and critical” than prohib- ited method. Id., at 76.
Like the Casey waiting period, 24-hour and in contrast any situation Danforth, increased health risk to imposed by women partial birth abortion ban is minimal
1015 at most. Of the 5.5% of abortions that occur after 15 weeks (the partial possi- time which a after abortion be birth would ble), majority performed the vast are or with a D&E induc- procedure. any tion presen- And, for a woman with vertex presentation tation the vertex fetus, D&E, form of intact presumably which shares of some health benefits partial procedure birth abortion but is not covered remaining statute, Nebraska available. Of women— partial is, those proce- women whom a birth abortion dure would be presenta- considered and who have a breech any tion fetus —there signifi- is no showing that one faces partial cant health risk from the birth abortion ban. A committee identify select no ACOG “could circumstances procedure under which option this would be the ... preserve save life App. or the health woman.” (ACOG 600 Executive Board, on Intact Dilation Statement (Jan. 1997))* Hope Extraction 12, See also Clinic v. (CA7 1999) (“ (en banc) Ryan, 195 F. 8d ‘There does appear any not to be identified situation intact which ” only appropriate procedure D&X is the to induce abortion’ (quoting Pregnancy Techniques, Policy Late Term AMA 1999)); H-5.982 W. D. Wis. Planned Parenthood Wis. v. Doyle, Supp. testimony (citing F. 2d, of Dr. Haskell medically “the neeessary D&X is never to... preserve woman”), the health of a 3d vacated, F. (CA7 1999). including And, an ad hoe doctors, coalition of Surgeon former Koop, General concluded that there are- no medical require conditions that use of the partial birth preserve the mother’s health. See App.
In Legisla- fact, there was evidence before Nebraska partial ture that birth abortion increases health risks rela- procedures. tive to other During proponent debates, floor legislation the Nebraska from read and cited arti- several by physicians cles concluding that-partial pro- birth abortion risky. (GA8), App. cedures are 98-8245, 98-3300 Nos. *84 1016
p. 812. One doctor testifying before a committee of the Ne- Legislature braska partial stated that birth abortion in- “very volves risky procedures”: three dilation of cervix, using blindly, instruments and App. conversion of the fetus. D.).22 721 (quoting testimony Hays, of Paul M.
There Congress was also partial evidence before birth abortion “does not meet medical standards set nor ACOG has it adequately proven been be safe nor efficacious.” (statement Hearing H. R. 1838 112 Nancy Romer, G. D.);M. see id., at supported 110-111.23 The AMA the con- gressional partial on concluding ban birth abortion, that the medically is “not good and indicated” “not medi- 19,1997) cine.” Cong. See 143 (May (reprinting Ree. S4670 Santorum). a letter from AMA to Sen. there And was Congress evidence before “certainly that there is no basis upon which to state the [partial abortion] claim birth a safer preferred or procedure.” even a Birth Partial Abor- (state- tion: The Truth, S. 6 and Hearing H. R. 929 Joint 123 D.). ment of Cook, Curtis M. This same doctor testified that 22 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 Jonas, & Epner, Seckinger, Late-term Abortion, 724, 280 1998). JAMA 26, 726 (Aug. Physicians have also sug gested that may pose greater risk of infection. See Planned Parenthood of Wis. v. (WD Doyle, 975, 44 Supp. F. 2d Wis. 1999). See also Neerhof, & Sprang Rationale for Banning Abortions Late in Pregnancy, 1998) (“Intact JAMA 26, 744 (Aug. D&X serious poses mother”). medical risks to the 23Nebraska was entitled to rely testimony on and evidence presented to Congress and to other state legislatures. M., Cf Erie v. A. Pap’s 277, U. S. (2000); 296-297 Renton v. Playtime Theatres, Inc., 475 U. S. (1986). At numerous points during legislative debates, various members of the Nebraska Legislature made clear that that body was of, aware and on, relying evidence before Congress other legislative bodies. See App. Nos. 98-3245, (CA8), 98-3300 pp. 846, 852-853, 878- 879, 890-891, 912-913. “partial-birth abortion unnecessary, unsteady, is an po- tentially dangerous procedure,” and that “safe alternatives are in existence.” Id., at majority justifies by asserting its result “sig- that a body
nificant opinion” of medical supports par- the view that may birth tial procedure. be safer abortion Ante, at 937. I find this puzzling. “signifi- assertion If there is a body cant opinion” medical supporting procedure, this no majority one in the has identified fact, it. In it is uncon- *85 tested although that this has been used since at least no 1992, formal studies compared partial have birth procedures. (cit- abortion with other Supp. 11F. 2d, at 1112 ing testimony Stubblefield); of Dr. at id., 1115 (citing testi- mony Boehm); of Dr. Epner, Jonas, Seckinger, & Late-term 26,1998); Abortion, JAMA (Aug. Sprang & Neerhof, Rationale for Banning Pregnancy, Abortion Late in 1998). (Aug, JAMA 744 26, Cf. Tire Kumko Co. v. Carmi- (1999) chael, U. 526 S. 137,149-152 (observing that the relia- bility of technique may a scientific on turn whether the tech- nique can be and has been tested; whether has been subjected peer to publication; review and and whether there is high a rate of error or controlling operation). standards its The majority’s conclusion makes sense if the undue- burden standard is not “significant a whether body of medi- opinion” cal supports the result, but rather, as Justice candidly Ginsburg any admits, whether doctor could rea- sonably believe partial birth abortion protect would best the woman. Ante, at Moreover, even if I were to assume credible evidence on both sides of the debate, that fact should resolve the undue- question burden in favor allowing legislate. Nebraska to Where no one regulation knows whether poses of any burden all, at surely burden does not amount to a “substantial obstacle.” Casey, Under in sueh a case we should legislative defer to the judgment. We have said: disagreement
“[I]t precisely exists where such legislatures the widest latitude been afforded have legislature [W]hen drafting under- such statutes. ... fraught medical and scientific takes to act in areas with especially options legislative must be uncertainties, broad_” at n. 3 Hendricks, S., 360, 521U. Kansas v. (internal omitted). quotations marks In Justice O’Connor’s words: that this without
“It difficult to believe Court, is . . . with bodies entrusted resources available those competent making legislative believes itself choices, inquiries these standards make these revise every College time the American of Obstetricians (ACOG) Gynecologists group its or similar revises views pro- appropriate medical about what is and not what is cedure in Re- this area.” Akron v. Akron Center for (dissenting productive Health, 462 U. Inc., S., opinion). (“Irrespective difficulty id., task,
See n. 4 legislatures, superior factfinding capabilities, with are their *86 certainly necessary judgments better to than able make courts”); Reproductive are 492 Services, v. Webster Health (Court (plurality opinion) S., at “ex U. 519 should not sit powers approve disapprove medical board with or officio operative throughout medical and practices and standards (internal omitted)); quotations United States marks (“The (1983) Jones States, 354, v. United 463 13 365, U. S. n. government may lesson we have that not in drawn is not act [medical] uncertainty, the face of this but rather that courts pay particular legislative should deference to reasonable judgments”). today disregards principles these The Court import Casey. and the clear
2
willing
partial
if I
Even
were
birth
to assume that
method of
women,
abortion is safer for some small set of
such
invalidating
require
Act,
a conclusion would not
because
challenge.
only ques
on facial
this case comes to us
a
The
respondent
tion before us is whether
has shown that “'no
under
set of circumstances exists
which the Act would be
”
Reproductive
Akron
Health,
Ohio v.
Center
valid/
(quoting
Reproductive
Websterv.
U. S.
Health
(1990)
502, 514
supra,
concurring
part
Services,
at (O’Connor,
J.,
judgment)).
concurring
may
Courts
not invalidate on its
regulating
upon
a
face
state statute
a
“based
analysis
may
that
S.,
worst-case
never occur.” 497 U.
at improper
Invalidation of the
be
statute would
even assum
(at
ing
Casey rejected
this
sub
standard
silentio
least
concerned)
far as
so
“
abortion cases are
in favor of a so-called
”
‘large
Fargo
Organi
fraction’
test. See
Health
Women’s
(1993)
v.
zation
507 U.
S.
Schafer,
(O’Connor,
joined by
concurring) (arguing
J.,
J.,
that the “no
Souter,
Casey).
set
incompatible
of circumstances” standard is
with
also
See
Janklow
Parenthood,
v. Planned
Falls
Sioux
(1996)
Clinic,
None
so much as
large
undoubtedly
standard,
mentions the
fraction
because
the Nebraska
easily
statute
survives it.
I will assume, for
the sake of discussion, that
category
of women whose
conduct
partial
Nebraska’s
birth abortion
might
statute
af
fect
any
includes
woman who wishes to obtain a safe abortion
after 16
gestation.
weeks’
I will also assume (although I
true)
doubt it is
that, of these women, every one would be
willing to
partial
use the
birth abortion
if
ad
so
by
vised
her doctor.
Indisputably, there
“large
is no
frac
tion” of these women who would face a substantial obstacle
obtaining
a safe abortion because of
inability
their
to use
particular
this
procedure.
In fact, it is not clear
any
woman
deprived
would be
of a
safe abortion
inability
her
partial
obtain
birth abortion. More medically sophisti
cated minds than ours have searched and failed
identify
single
(let
fraction)
circumstance
a large
alone
in
par
which
tial birth abortion
required.
noBut matter. The
hoe
“ad
nullification” machine is back at full throttle. See Thorn
burgh v.
College
American
Gynecolo
Obstetricians and
gists, 476
S.,U.
(O’Connor,
at 814
J., dissenting); Madsen
v. Women's Health Center,
(1994)
Inc.,
(cid:127)i* H’ ^ We were repeatedly reassured Casey that not regula- all tions of abortion are unwarranted and that the may States express profound respect for fetal life. Casey, Under regulation before today us should easily pass constitutional muster. But Court’s abortion jurisprudence particu- is a larly virulent strain of constitutional exegesis. And so today we are told that 30 States prohibited are banning from rarely one used form of they abortion that believe to border on It infanticide. is clear that the Constitution does not compel this result. respectfully
I dissent.