Although heartening, this clear victory for abortion rights was won by the narrowest of margins: five Justices voted to strike the ban; four would have upheld it. Moreover, in her separate concurrence, Justice O'Connor indicated her willingness to uphold more narrowly drawn restrictions. Below we offer an analysis of the decision with an eye toward the future struggle for reproductive freedom.
Although supporters of "partial-birth abortion" bans claim that they prohibit only a single procedure known to the medical community as dilation and extraction or D&X, the Nebraska law, like the laws of more than two dozen other states, does not mention the D&X procedure. Rather, the law sweeps much more broadly, prohibiting the performance of an array of abortion methods used throughout pregnancy. And, like similar laws throughout the country, the Nebraska law provides no health exception and only a narrow life exception.
The ACLU Reproductive Freedom Project and our state affiliates have participated in challenging similar laws in ten states. In addition, the Project submitted a friend-of-the-court brief in the Supreme Court urging it to invalidate the Nebraska ban. (A copy of the ACLU brief can be found at: archive.aclu.org/court/stenberg_v_carhart.html.)
THE MAJORITY OPINION
The majority opinion in Stenberg, written by Justice Breyer, and joined by Justices Stevens, O'Connor, Souter, and Ginsburg, begins by reviewing certain basic principles that have guided abortion jurisprudence since Roe v. Wade, 410 U.S. 113 (1973), and that were most recently reaffirmed in Planned Parenthood v. Casey, 505 U.S. 833 (1992). The Court reiterates the long-standing rule that even laws that ban abortions after the fetus is viable must contain a health exception. "[A]t a minimum," the Court therefore concludes, the Constitution requires a health exception for laws, like Nebraska's, that also regulate abortions before viability. Stenberg v. Carhart, No. 99-830, 2000 LEXIS 4484, at *29, 530 U.S.____ (2000).
The majority proceeds to reject a series of arguments challenging this constitutional requirement. First, the Court dismisses the idea that a health exception is necessary only when the pregnancy itself creates a health risk for the woman and explains that the Constitution also demands a health exception "where state regulations force women to use riskier methods of abortion." Id. at *31. To resolve the underlying question of a procedure's safety, the Court looks to medical opinion. So long as "substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women's health," the Constitution "requires the statute to include a health exception when the procedure is 'necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.'" Id. at *42 (quoting Casey, 505 U.S. at 879). Disagreement within the medical community about the safety of any particular procedure, the Court writes, does not obviate the need for such a health exception. This holding reaffirms that the treating physician must retain the discretion to use any method of abortion within the standard of care that will best protect the woman's health.
The Court next rejects the argument that the ban does not need a health exception because abortions are rarely performed using the D&X method. Making clear that laws that restrict abortion must contain health exceptions even if only a few women would otherwise be at risk, the Court explains, "[t]he D&X is an infrequently used abortion procedure; but the health exception question is whether protecting women's health requires an exception for those infrequent occasions. A rarely used treatment might be necessary to treat a rarely occurring disease that could strike anyone-the State cannot prohibit a person from obtaining treatment simply by pointing out that most people do not need it." Id. at *36. This holding serves as a powerful reminder that a health exception is the sine qua non of the constitutional validity of any law restricting abortion.
After invalidating the law for lack of a health exception, the Court holds that the law is also unconstitutional because its definition of the banned procedures encompasses not only the D&X, but also dilation and evacuation procedures (D&Es), by which more than 95% of second-trimester abortions are performed. Id. at *42-56. The Nebraska law, like other bans throughout the nation, defines "partial-birth abortion" as "an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery." Neb. Rev. Stat. Ann. ' 28-326(9) (Supp. 1999). This is further defined as "deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child." Id. ' 28-326(9). Noting that it does "not understand how one could distinguish, using this language, between D&E . . . and D&X,@ Stenberg, 2000 LEXIS 4484, at *43, the Court concludes that "[e]ven if the statute's basic aim is to ban D&X, its language makes clear that it also covers a much broader category of procedures." Id. at *44. Because the statute bans the most common method of second-trimester abortion, the Court holds that the law places an "'undue burden' upon a woman's right to terminate her pregnancy before viability" and is therefore unconstitutional. Id. at *42-43.
JUSTICE O'CONNOR'S PROBLEMATIC CONCURRENCE
Although Justice O'Connor-nearly always the swing voter in abortion cases-joins the majority opinion, she also writes a separate concurring opinion. After reviewing the constitutional deficiencies of the statute before her, Justice O'Connor comments on a hypothetical alternative: she states that "a ban on partial-birth abortion that only proscribed the D&X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional in my view." Id. at *65 (O'Connor, J., concurring). We expect to see a new generation of so-called "partial-birth abortion" bans aimed at testing how closely anti-choice forces must follow Justice O'Connor's instruction in order to move her to side with the four Stenberg dissenters.
THE FOUR DISSENTERS
As expected, Justices Rehnquist, Scalia, Kennedy, and Thomas all dissent. They argue that Nebraska's ban should not be read to encompass D&E abortions and that a ban limited to D&X does not require a health exception. The majority persuasively rejects both arguments. In addition, three of the Justices-Rehnquist, Scalia, and Thomas-reiterate their desire to overrule Roe and to eliminate any constitutional protection for the right of reproductive choice.
More disturbing for the future of abortion jurisprudence, however, is the vehement and clearly heartfelt dissent from Justice Kennedy. Justice Kennedy-one of the three Justices who signed the controlling opinion in Casey that reaffirmed the basic right announced in Roe-writes an opinion marked by disgust about abortion and hostility toward abortion providers. While he acknowledges that "Nebraska must obey the legal regime which has declared the right of the woman to have an abortion before viability," Id. at *87 (Kennedy, J., dissenting), he concludes, against the majority, that Nebraska's ban does not impose an "undue burden" and is therefore in keeping with the basic tenets of Casey. It remains to be seen whether the graphic nature of this case will have the effect that anti-choice forces have hoped-to push Justice Kennedy to abandon his already tenuous support for the fundamental constitutional right to reproductive choice if and when he must face this question again.
WHAT THE FUTURE HOLDS
Because the other "partial-birth abortion" bans challenged across the country suffer from the same constitutional flaws as does Nebraska's ban-they lack health exceptions and are so broadly worded as to ban D&Es-the lower courts in all likelihood will soon invalidate them as well. Indeed, some states have already conceded the unconstitutionality of their laws. Others, however, have indicated that they will persist in their attempts to defend their laws. The states' refusal to abandon their now clearly futile defense of these bans will only add to the burden on taxpayers by increasing the attorneys' fees that states will have to pay when the physicians and clinics challenging these laws ultimately prevail.
Though the Court's ruling in Stenberg should send a clear message to lawmakers throughout the country that they cannot disregard women's health when enacting abortion restrictions, no Supreme Court decision ever has or ever will stop anti-choice extremists from attempting to eliminate abortion rights. Indeed, Justice O'Connor's statement that she would uphold a narrower ban that included a health exception invites anti-choice forces to experiment further with bans on safe abortion procedures. Given that the current Court maintains an unacceptably narrow margin between ensuring women's reproductive rights and eradicating them, we cannot help but be wary of what the future will bring. The Supreme Court is the proper guardian of women's constitutional right to make their own decisions about their pregnancies. We need to make sure that the Court stands ready to protect that right for future generations.
The case is Stenberg v. Carhart, No. 99-830. A copy of the Supreme Court decision can be found at: supct.law.cornell.edu/supct/html/99-830.ZS.html.