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SUPREME COURT OF THE UNITED STATES
No. 99-830
DON STENBERG, ATTORNEY GENERAL OF NEBRASKA, et al., PETITIONERS v. LEROY CARHART
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
[June 28, 2000]
Justice Breyer delivered the opinion of the Court.
We again consider the right to an abortion. We understand the controversial nature
of the problem. Millions of Americans believe that life begins at conception and consequently that an
abortion
is akin to causing the death of an innocent child; they recoil at the thought of a law that would permit it.
Other millions fear that a law that forbids abortion would condemn many American women to lives that lack
dignity, depriving them of equal liberty and leading those with least resources to undergo illegal
abortions
with the attendant risks of death and suffering. Taking account of these virtually irreconcilable points of
view, aware that constitutional law must govern a society whose different members sincerely hold directly
opposing views, and considering the matter in light of the Constitution's guarantees of fundamental
individual liberty, this Court, in the course of a generation, has determined and then
redetermined that the
Constitution offers basic protection to the woman's right to choose. Roe v. Wade,
410 U.S. 113 (1973);
Planned Parenthood of Southeastern Pa. v. Casey,
505 U.S. 833 (1992).
We shall not revisit those legal principles. Rather, we apply them to the circumstances of this case.
Three established principles determine the issue before us. We shall set them forth
in the language of the joint opinion in Casey. First, before "viability ... the woman has a
right to choose to terminate her pregnancy." Id., at 870 (joint opinion of O'Connor, Kennedy,
and Souter, JJ.).
Second, a law designed to further the State's interest in fetal life which
imposes an undue burden on the woman's decision before fetal viability is unconstitutional.
Id., at 877. An "undue burden is ... shorthand for the conclusion that a state regulation has
the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a
nonviable fetus." Ibid.
Third, " 'subsequent to viability, the State in
promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe,
abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or
health of the mother." ' Id., at 879 (quoting Roe v.
Wade, supra, at 164—165).
We apply these principles to a Nebraska law banning “partial birth abortion.”
The statute reads as follows:
“No partial birth abortion shall be performed in this state, unless such procedure
is necessary to save the life of the mother whose life is endangered by a physical disorder,
physical illness,
or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy
itself.” Neb. Rev. Stat. Ann. §28—328(1) (Supp. 1999).
The statute 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.” §28—326(9).
It further defines “partially delivers vaginally a living unborn child before killing the unborn
child” to mean
“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.” Ibid.
The law classifies violation of the statute as a “Class III felony” carrying a prison term of up to
20 years, and a fine of up to $25,000. §§28—328(2), 28—105. It also provides for the
automatic revocation of a doctor’s license to practice medicine in Nebraska. §28—328(4).
We hold that this statute violates the Constitution.
I
A
Dr. Leroy Carhart is a Nebraska physician who performs abortions in a clinical
setting. He brought this lawsuit in Federal District Court seeking a declaration that the Nebraska
statute
violates the Federal Constitution, and asking for an
injunction forbidding its enforcement. After a trial on
the merits, during which both sides presented several expert witnesses, the District Court held the statute
unconstitutional. 11 F. Supp. 2d 1099 (Neb. 1998). On appeal, the Eighth Circuit affirmed.
192 F.3d 1142 (1999); cf. Hope Clinic v. Ryan, 195 F.3d 857 (CA7 1999) (en banc) (considering a
similar statute, but reaching a different legal conclusion). We granted certiorari to consider the matter.
B
Because Nebraska law seeks to ban one method of aborting a pregnancy, we must describe
and then discuss several different abortion procedures. Considering the fact that those procedures seek to
terminate a potential human life, our discussion may seem clinically cold or callous to some, perhaps
horrifying to others. There is no alternative way, however, to acquaint the reader with the technical
distinctions among different abortion methods and related factual matters, upon which the outcome of this
case depends. For that reason, drawing upon the findings of the trial court, underlying testimony, and
related medical texts, we shall describe the relevant methods of performing abortions in technical detail.
The evidence before the trial court, as supported or supplemented in the literature,
indicates the following:
1. About 90% of all abortions performed in the United States take place during the
first trimester of pregnancy, before 12 weeks of gestational age. Centers for Disease Control and Prevention,
Abortion Surveillance–United States, 1996, p. 41 (July 30, 1999) (hereinafter Abortion Surveillance).
During the first trimester, the predominant abortion method is “vacuum aspiration,” which involves
insertion of a vacuum tube (cannula) into the uterus to evacuate the contents. Such an abortion is typically
performed on an outpatient basis under local anesthesia. 11 F. Supp. 2d, at 1102; Obstetrics: Normal & Problem
Pregnancies 1253—1254 (S. Gabbe, J. Niebyl, & J. Simpson eds. 3d ed. 1996). Vacuum aspiration is
considered particularly safe. The procedure’s mortality rates for first trimester abortion are, for
example, 5 to 10 times lower than those associated with carrying the fetus to term. Complication rates are
also low. Id., at 1251; Lawson et al., Abortion Mortality, United States, 1972 through 1987,
171
Am. J. Obstet. Gynecol. 1365, 1368 (1994); M. Paul, et al., A Clinicians Guide to Medical and Surgical
Abortion 108—109 (1999) (hereinafter Medical and Surgical Abortion). As the fetus grows in size,
however,
the vacuum aspiration method becomes increasingly difficult to use. 11 F. Supp. 2d, at 1102—1103;
Obstetrics: Normal & Problem Pregnancies, supra, at 1268.
2. Approximately 10% of all abortions are performed during the second trimester of
pregnancy (12 to 24 weeks). Abortion Surveillance 41. In the early 1970’s, inducing labor through the
injection of saline into the uterus was the predominant method of second trimester abortion. Id.,
at 8; Planned Parenthood of Central Mo. v. Danforth,
428 U.S. 52, 76 (1976). Today,
however, the medical profession has switched from medical induction of labor to surgical procedures for
most
second trimester abortions. The most commonly used procedure is called “dilation and evacuation”
(D&E). That procedure (together with a modified form of vacuum aspiration used in the early second trimester)
accounts for about 95% of all abortions performed from 12 to 20 weeks of gestational age. Abortion
Surveillance 41.
3. D&E “refers generically to transcervical procedures performed at 13 weeks
gestation or later.” American Medical Association, Report of Board of Trustees on Late-Term Abortion,
App. 490 (hereinafter AMA Report). The AMA Report, adopted by the District Court, describes the process as
follows.
Between 13 and 15 weeks of gestation:
“D&E is similar to vacuum aspiration except that the cervix must be dilated more widely because
surgical
instruments are used to remove larger pieces of tissue. Osmotic dilators are usually used. Intravenous fluids
and an analgesic or sedative may be administered. A local anesthetic such as a paracervical block may be
administered, dilating agents, if used, are removed and instruments are inserted through the cervix into the
uterus to removal fetal and placental tissue. Because fetal tissue is friable and easily broken, the fetus may
not be removed intact. The walls of the uterus are scraped with a curette to ensure that no tissue
remains.” Id., at 490—491.
After 15 weeks:
“Because the fetus is larger at this stage of gestation (particularly the head), and because bones
are
more rigid, dismemberment or other destructive procedures are more likely to be required than at earlier
gestational ages to remove fetal and placental tissue.” Id., at 491.
After 20 weeks:
“Some physicians use intrafetal potassium chloride or digoxin to induce fetal demise prior to a late D&E
(after 20 weeks), to facilitate evacuation.” Id., at 491—492.
There are variations in D&E operative strategy; compare ibid. with W. Hern,
Abortion Practice 146—156 (1984), and Medical and Surgical Abortion 133—135. However, the common
points are that D&E involves (1) dilation of the cervix; (2) removal of at least some fetal tissue using
nonvacuum instruments; and (3) (after the 15th week) the potential need for instrumental disarticulation or
dismemberment of the fetus or the collapse of fetal parts to facilitate evacuation from the uterus.
4. When instrumental disarticulation incident to D&E is necessary, it typically
occurs as the doctor pulls a portion of the fetus through the cervix into the birth canal. Dr. Carhart
testified at trial as follows:
“Dr. Carhart: … ‘The dismemberment occurs between the traction of … my instrument and the
counter-traction of the internal os of the cervix … .
“Counsel: ‘So the dismemberment occurs after you pulled a part of the fetus through the
cervix, is that correct?
“Dr. Carhart: ‘Exactly. Because you’re using–The cervix has two strictures or two
rings,
the internal os and the external os … that’s what’s actually doing the
dismembering… .
“Counsel: ‘When we talked before or talked before about a D&E, that is not–where there is not
intention to do it intact, do you, in that situation, dismember the fetus in utero first, then remove
portions?
“Dr. Carhart: ‘I don’t think so. … I don’t know of any way that one could go
in and intentionally dismember the fetus in the uterus. … It takes something that restricts the
motion of
the fetus against what you’re doing before you’re going to get dismemberment.’
” 11 F. Supp. 2d, at 1104.
Dr. Carhart’s specification of the location of fetal disarticulation is consistent with other sources.
See Medical and Surgical Abortion 135; App. in Nos. 98—3245 and 98—3300 (CA8), p. 683, (testimony of
Dr. Phillip Stubblefield) (“Q: So you don’t actually dismember the fetus in utero, then take the
pieces out? A: No”).
5. The D&E procedure carries certain risks. The use of instruments within the uterus
creates a danger of accidental perforation and damage to neighboring organs. Sharp fetal bone fragments create
similar dangers. And fetal tissue accidentally left behind can cause infection and various other complications.
See 11 F. Supp. 2d, at 1110; Gynecologic, Obstetric, and Related Surgery 1045 (D. Nichols & D.
Clarke-Pearson eds. 2d ed. 2000); F. Cunningham et al., Williams Obstetrics 598 (20th ed. 1997).
Nonetheless studies show that the risks of mortality and complication that accompany the D&E procedure between
the 12th and 20th weeks of gestation are significantly lower than those accompanying induced labor procedures
(the next safest midsecond trimester procedures). See Gynecologic, Obstetric, and Related Surgery,
supra, at 1046; AMA Report, App. 495, 496; Medical and Surgical Abortion 139, 142; Lawson, 171 Am. J.
Obstet. Gynecol., at 1368.
6. At trial, Dr. Carhart and Dr. Stubblefield described a variation of the D&E
procedure, which they referred to as an “intact D&E." See 11 F. Supp. 2d, at 1105, 1111. Like
other versions of the D&E technique, it begins with induced dilation of
the cervix. The procedure then involves
removing the fetus from the uterus through the cervix “intact,” i.e., in one pass,
rather
than in several passes. Ibid. It is used after 16 weeks at the earliest, as vacuum aspiration becomes
ineffective and the fetal skull becomes too large to pass through the cervix. Id., at 1105. The
intact
D&E proceeds in one of two ways, depending on the presentation of the fetus. If the fetus presents head
first
(a vertex presentation), the doctor collapses the skull; and the doctor then extracts the entire fetus through
the cervix. If the fetus presents feet first (a breech presentation), the doctor pulls the fetal body through
the cervix, collapses the skull, and extracts the fetus through the cervix. Ibid. The breech
extraction version of the intact D&E is also known commonly as “Abortion Techniques: dilation and extraction,” or D&X.
Id., at 1112. In the late second trimester, vertex, breech, and traverse/compound (sideways)
presentations occur in roughly similar proportions. Medical and Surgical Abortion 135; 11 F. Supp. 2d, at
1108.
7. The intact D&E procedure can also be found described in certain obstetric and
abortion clinical textbooks, where two variations are recognized. The first, as just described, calls for the
physician to adapt his method for extracting the intact fetus depending on fetal presentation. See
Gynecologic, Obstetric, and Related Surgery, supra, at 1043; Medical and Surgical Abortion 136—137.
This is the method used by Dr. Carhart. See 11 F. Supp. 2d, at 1105. A slightly different version of the
intact D&E procedure, associated with Dr. Martin Haskell, calls for conversion to a breech presentation in all
cases. See Gynecologic, Obstetric, and Related Surgery, supra, at 1043 (citing M. Haskell, Dilation and
Extraction for Late Second Trimester Abortion (1992), in 139 Cong. Rec. 8605 (1993)).
8. The American College of Obstetricians and Gynecologists describes the D&X procedure
in a manner corresponding to a breech-conversion intact D&E, including the following steps:
“1. deliberate dilatation of the cervix, usually over a sequence of days;
“2. instrumental conversion of the fetus to a footling breech;
“3. breech extraction of the body excepting the head; and
“4. partial evacuation of the intracranial contents of a living fetus to effect
vaginal delivery of a dead but otherwise intact fetus.” American College of Obstetricians and
Gynecologists Executive Board, Statement on Intact Dilation and Extraction (Jan. 12, 1997) (hereinafter ACOG
Statement), App. 599—560.
Despite the technical differences we have just described, intact D&E and D&X are sufficiently similar for us
to use the terms interchangeably.
9. Dr. Carhart testified he attempts to use the intact D&E procedure during weeks 16
to 20 because (1) it reduces the dangers from sharp bone fragments passing through the cervix, (2) minimizes
the number of instrument passes needed for extraction and lessens the likelihood of uterine perforations caused
by those instruments, (3) reduces the likelihood of leaving infection-causing fetal and placental tissue in the
uterus, and (4) could help to prevent potentially fatal absorption of fetal tissue into the maternal
circulation.See 11 F. Supp. 2d, at 1107. The District Court made no findings about the D&X procedure’s
overall safety. Id., at 1126, n. 39. The District Court concluded, however, that “the
evidence is both clear and convincing that Carhart’s D&X procedure is superior to, and safer than,
the … other abortion procedures used during the relevant gestational period in the 10 to 20 cases a year
that present to Dr. Carhart.” Id., at 1126.
10. The materials presented at trial referred to the potential benefits of the D&X
procedure in circumstances involving nonviable fetuses, such as fetuses with abnormal fluid accumulation in the
brain (hydrocephaly). See 11 F. Supp. 2d, at 1107 (quoting AMA Report, App. 492 (“
‘Intact D&X may be preferred by some physicians, particularly when the fetus has been diagnosed
with hydrocephaly or other anomalies incompatible with life outside the
womb’ ”)); see also Grimes, The Continuing Need for Late
Abortions, 280 JAMA 747, 748 (Aug. 26, 1998) (D&X “may be especially useful in the presence of fetal
anomalies, such as hydrocephalus,” because its reduction of the cranium allows “a smaller diameter to
pass through the cervix, thus reducing risk of cervical injury”). Others have emphasized its potential
for women with prior uterine scars, or for women for whom induction of labor would be particularly dangerous.
See Women’s Medical Professional Corp. v. Voinovich, 911 F. Supp. 2d 1051, 1067
(SD Ohio 1995); Evans v. Kelley, 977 F. Supp. 2d 1283, 1296 (ED Mich. 1997).
11. There are no reliable data on the number of D&X abortions performed annually.
Estimates have ranged between 640 and 5,000 per year. Compare Henshaw, Abortion Incidence and Services in the
United States, 1995—1996, 30 Family Planning Perspectives 263, 268 (1998), with Joint Hearing on S. 6
and H. R. 929 before the Senate Committee on the Judiciary and the Subcommittee on the Constitution of the
House Committee on the Judiciary, 105th Cong., 1st Sess., 46 (1997).
II
The question before us is whether Nebraska’s statute, making criminal the
performance of a “partial birth abortion,” violates the Federal Constitution, as interpreted in
Planned Parenthood of Southeastern Pa. v. Casey,
505 U.S. 833 (1992), and
Roe v. Wade, 410 U.S. 113 (1973). We conclude that it does for at least two independent reasons.
First, the law lacks any exception “ ‘for the preservation of the …
health of the mother.’ ” Casey, 505 U.S., at 879 (joint opinion of
O’Connor, Kennedy, and Souter, JJ.). Second, it “imposes an undue burden on a woman’s
ability” to choose a D&E abortion, thereby unduly burdening the right to choose abortion itself.
Id., at 874. We shall discuss each of these reasons in turn.
A
The Casey joint opinion reiterated what the Court held in Roe; that
“ ‘subsequent to viability, the State in promoting its interest in the
potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is
necessary, in appropriate medical judgment, for the preservation of the life or
health of the mother.’ ” 505 U.S., at 879 (quoting Roe,
supra, at 164—165) (emphasis added).
The fact that Nebraska’s law applies both pre- and postviability aggravates the
constitutional problem presented. The State’s interest in regulating abortion previability is
considerably weaker than postviability. See Casey, supra, at 870. Since the law requires a
health exception in order to validate even a postviability abortion regulation, it at a minimum requires the
same in respect to previability regulation. See Casey, supra, at 880 (majority opinion)
(assuming need for health exception previability); see also Harris v. McRae,
448 U.S. 297, 316 (1980).
The quoted standard also depends on the state regulations “promoting
[the State’s] interest in the potentiality of human life.” The Nebraska law, of course,
does not directly further an interest “in the potentiality of human life” by saving the fetus in
question from destruction, as it regulates only a method of performing abortion. Nebraska describes
its interests differently. It says the law “ ‘show[s] concern for the
life of the unborn,’ ” “prevent[s&93; cruelty to partially born
children,” and “preserve[s] the integrity of the medical profession.” Brief for Petitioners
48. But we cannot see how the interest-related differences could make any difference to the question at hand,
namely, the application of the “health” requirement.
Consequently, the governing standard requires an exception “where it is
necessary, in appropriate medical judgment for the preservation of the life or health of the mother,”
Casey, supra, at 879, for this Court has made clear that a State may promote but not endanger a
woman’s health when it regulates the methods of abortion. Thornburgh v. American College of
Obstetricians and Gynecologists, 476
U.S. 747, 768—769 (1986); Colautti v. Franklin,
439 U.S. 379, 400 (1979);
Danforth, 428 U.S., at 76—79; Doe v. Bolton,
410 U.S. 179, 197 (1973).
Justice Thomas says that the cases just cited limit this principle to situations where the pregnancy
itself creates a threat to health. See post, at 33. He is wrong. The cited cases,
reaffirmed in Casey, recognize that a State cannot subject women’s health to significant
risks both in that context, and also where state regulations force women to use riskier methods of
abortion. Our cases have repeatedly invalidated statutes that in the process of regulating the methods
of abortion, imposed significant health risks. They make clear that a risk to a women’s health is the
same whether it happens to arise from regulating a particular method of abortion, or from barring abortion
entirely. Our holding does not go beyond those cases, as ratified in Casey.
1
Nebraska responds that the law does not require a health exception unless there is a
need for such an exception. And here there is no such need, it says. It argues that “safe alternatives
remain available” and “a ban on partial-birth abortion/D&X would create no risk to the health of
women.” Brief for Petitioners 29, 40. The problem for Nebraska is that the parties strongly contested
this factual question in the trial court below; and the findings and evidence support Dr. Carhart. The State
fails to demonstrate that banning D&X without a health exception may not create significant health risks for
women, because the record shows that significant medical authority supports the proposition that in some
circumstances, D&X would be the safest procedure.
We shall reiterate in summary form the relevant findings and evidence. On the basis of
medical testimony the District Court concluded that “Carhart’s D&X procedure is … safer tha[n]
the D&E and other abortion procedures used during the relevant gestational period in the 10 to 20 cases a year
that present to Dr. Carhart.” 11 F. Supp. 2d, at 1126. It found that the D&X procedure permits the fetus
to pass through the cervix with a minimum of instrumentation. Ibid. It thereby
“reduces operating time, blood loss and risk of infection; reduces complications from bony fragments;
reduces instrument-inflicted damage to the uterus and cervix; prevents the most common causes of maternal
mortality (DIC and amniotic fluid embolus); and eliminates the possibility of ‘horrible
complications’ arising from retained fetal parts.” Ibid.
The District Court also noted that a select panel of the American College of
Obstetricians and Gynecologists concluded that D&X “ ‘may be the best or
most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.
’ ” Id., at 1105, n. 10 (quoting ACOG Statement, App.
600—601) (but see an important qualification, infra, at 14). With one exception, the federal
trial courts that have heard expert evidence on the matter have reached similar factual conclusions. See
Rhode Island Medical Soc. v. Whitehouse, 66 F. Supp. 2d 288, 314 (RI 1999); A Choice for
Women v. Butterworth, 54 F. Supp. 2d 1148, 1153, 1156 (SD Fla 1998); Causeway Medical Suite
v. Foster, 43 F. Supp. 2d 604, 613—614 (ED La. 1999); Richmond Medical Center for Women
v. Gilmore, 11 F. Supp. 2d 795, 827, n. 40 (ED Va. 1998); Hope Clinic v. Ryan,
995 F. Supp. 2d 847, 852 (ND Ill. 1998), vacated, 195 F.3d 857 (CA7 1999), cert. pending, No.
99—1152; Voinovich, 911 F. Supp. 2d, at 1069—1070; Kelley, 977 F. Supp. 2d,
at 1296; but see Planned Parenthood of Wis. v. Doyle, 44 F. Supp. 2d 975, 980 (WD Wis.)
vacated, 195 F.3d 857 (CA7 1999).
2
Nebraska, along with supporting amici, replies that these findings are
irrelevant, wrong, or applicable only in a tiny number of instances. It says (1) that the D&X procedure
is “little-used,” (2) by only “a handful of doctors.” Brief for Petitioners 32. It
argues (3) that D&E and labor induction are at all times “safe alternative procedures.” Id.,
at 36. It refers to the testimony of petitioners’ medical expert, who testified (4) that the ban would
not increase a woman’s risk of several rare abortion complications (disseminated intravascular
coagulopathy and amniotic fluid embolus), id., at 37; App. 642—644.
The Association of American Physicians and Surgeons et al., amici
supporting Nebraska, argue (5) that elements of the D&X procedure may create special risks, including cervical
incompetence caused by overdilitation, injury caused by conversion of the fetal presentation, and dangers
arising from the “blind” use of instrumentation to pierce the fetal skull while lodged in the birth
canal. See Brief for Association of American Physicians and Surgeons et al. as Amici Curiae
21—23; see also Sprang & Neerhof, Rationale for Banning Abortions Late in Pregnancy, 280 JAMA 744,
746 (Aug. 26, 1998).
Nebraska further emphasizes (6) that there are no medical studies “establishing
the safety of the partial-birth abortion/D&X procedure,” Brief for Petitioners 39, and “no medical
studies comparing the safety of partial-birth abortion/D&X to other abortion procedures,” ibid. It
points to, id., at 35, (7) an American Medical Association policy statement that
“ ‘there does not appear to be any identified situation in which intact
D&X is the only appropriate procedure to induce abortion,’ ” Late Term
Pregnancy Termination Techniques, AMA Policy H—5.982 (1997). And it points out (8) that the American
College of Obstetricians and Gynecologists qualified its statement that D&X “may be the best or most
appropriate procedure,” by adding that the panel “could identify no circumstances under which
[the D&X] procedure … would be the only option to save the life or preserve the health of the woman.”
App. 600—601.
3
We find these eight arguments insufficient to demonstrate that Nebraska’s law
needs no health exception. For one thing, certain of the arguments are beside the point. The D&X procedure
’s relative rarity (argument (1)) is not highly relevant. The 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. Nor can we know whether the fact that only a “handful” of
doctors use the procedure (argument (2)) reflects the comparative rarity of late second term abortions, the
procedure’s recent development, Gynecologic, Obstetric, and Related Surgery, at 1043, the controversy
surrounding it, or, as Nebraska suggests, the procedure’s lack of utility.
For another thing, the record responds to Nebraska’s (and amici’s)
medically based arguments. In respect to argument (3), for example, the District Court agreed that
alternatives, such as D&E and induced labor, are “safe” but found that the D&X method was
significantly safer in certain circumstances. 11 F. Supp. 2d, at 1125—1126. In respect to
argument (4), the District Court simply relied on different expert testimony–testimony stating that
“ ‘[a]nother advantage of the Intact D&E is that it eliminates the risk
of embolism of cerebral tissue into the woman’s blood stream.’ ”
Id., at 1124 (quoting Hearing on H. R. 1833 before the Senate Committee on the Judiciary, 104th
Cong., 1st Sess., 260 (1995) (statement of W. Hern).
In response to amici’s argument (5), the American College of
Obstetricians and Gynecologists, in its own amici brief, denies that D&X generally poses risks greater
than the alternatives. It says that the suggested alternative procedures involve similar or greater risks of
cervical and uterine injury, for “D&E procedures, involve similar amounts of dilitation”
and “of course childbirth involves even greater cervical dilitation.” Brief for American College of
Obstetricians and Gynecologists et al. as Amici Curiae 23. The College points out that Dr. Carhart
does not reposition the fetus thereby avoiding any risks stemming from conversion to breech presentation, and
that, as compared with D&X, D&E involves the same, if not greater, “blind” use of sharp instruments
in the uterine cavity. Id., at 23—24.
We do not quarrel with Nebraska’s argument (6), for Nebraska is right. There
are no general medical studies documenting comparative safety. Neither do we deny the import of the American
Medical Association’s statement (argument (7))–even though the State does omit the remainder of that
statement: “The AMA recommends that the procedure not be used unless alternative procedures pose
materially greater risk to the woman.” Late Term Pregnancy Termination Techniques,
AMA Policy H—5.982 (emphasis added).
We cannot, however, read the American College of Obstetricians and Gynecologists
panel’s qualification (that it could not “identify” a circumstance where D&X was
the “only” life- or health-preserving option) as if, according to Nebraska’s argument (8),
it denied the potential health-related need for D&X. That is because the College writes the following in
its amici brief:
“Depending on the physician’s skill and experience, the D&X procedure can be
the most appropriate abortion procedure for some women in some circumstances. D&X presents a variety of
potential safety advantages over other abortion procedures used during the same gestational period. Compared
to D&Es involving dismemberment, D&X involves less risk of uterine perforation or cervical laceration because
it requires the physician to make fewer passes into the uterus with sharp instruments and reduces the presence
of sharp fetal bone fragments that can injure the uterus and cervix. There is also considerable evidence that
D&X reduces the risk of retained fetal tissue, a serious abortion complication that can cause maternal death,
and that D&X reduces the incidence of a ‘free floating’ fetal head that can be difficult for a
physician to grasp and remove and can thus cause maternal injury. That D&X procedures usually take less time
than other abortion methods used at a comparable stage of pregnancy can also have health advantages. The
shorter the procedure, the less blood loss, trauma, and exposure to anesthesia.
The intuitive safety
advantages of intact D&E are supported by clinical experience. Especially for
women with particular health conditions, there is medical evidence that D&X may be safer than available
alternatives.” Brief for American College of Obstetricians and Gynecologists et al. as
Amici Curiae 21—22 (citation and footnotes omitted).
4
The upshot is a District Court finding that D&X significantly obviates health risks in
certain circumstances, a highly plausible record-based explanation of why that might be so, a division of
opinion among some medical experts over whether D&X is generally safer, and an absence of controlled medical
studies that would help answer these medical questions. Given these medically related evidentiary
circumstances, we believe the law requires a health exception.
The word “necessary” in Casey’s phrase “necessary, in
appropriate medical judgment, for the preservation of the life or health of the mother,” 505 U.S., at 879
(internal quotation marks omitted), cannot refer to an absolute necessity or to absolute proof. Medical
treatments and procedures are often considered appropriate (or inappropriate) in light of estimated comparative
health risks (and health benefits) in particular cases. Neither can that phrase require unanimity of medical
opinion. Doctors often differ in their estimation of comparative health risks and appropriate treatment. And
Casey’s words “appropriate medical judgment” must embody the judicial need to tolerate
responsible differences of medical opinion–differences of a sort that the American Medical Association and
American College of Obstetricians and Gynecologists’ statements together indicate are present here.
For another thing, the division of medical opinion about the matter at most means
uncertainty, a factor that signals the presence of risk, not its absence. That division here involves highly
qualified knowledgeable experts on both sides of the issue. Where a significant body of medical opinion
believes a procedure may bring with it greater safety for some patients and explains the medical reasons
supporting that view, we cannot say that the presence of a different view by itself proves the contrary.
Rather, the uncertainty means a significant likelihood that those who believe that D&X is a safer abortion
method in certain circumstances may turn out to be right. If so, then the absence of a health exception will
place women at an unnecessary risk of tragic health consequences. If they are wrong, the exception will simply
turn out to have been unnecessary.
In sum, Nebraska has not convinced us that a health exception is “never necessary
to preserve the health of women.” Reply Brief for Petitioners 4. Rather, a statute that altogether
forbids D&X creates a significant health risk. The statute consequently must contain a health exception. This
is not to say, as Justice Thomas and Justice Kennedy claim, that a State is prohibited from proscribing an
abortion procedure whenever a particular physician deems the procedure preferable. By no means must a State
grant physicians “unfettered discretion” in their selection of abortion methods. Post, at 14
(Kennedy, J., dissenting). But where substantial medical authority supports the proposition that banning a
particular abortion procedure could endanger women’s health, Casey 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.’ ” 505 U.S., at 879. Requiring such an exception in this case
is no departure from Casey, but simply a straightforward application of its holding.
B>
The Eighth Circuit found the Nebraska statute unconstitutional because, in
Casey’s words, it has the “effect of placing a substantial obstacle in the path of a woman
seeking an abortion of a nonviable fetus.” 505 U.S., at 877. It thereby places an “undue
burden” upon a woman’s right to terminate her pregnancy before viability. Ibid. Nebraska
does not deny that the statute imposes an “undue burden” if it applies to the more commonly
used D&E procedure as well as to D&X. And we agree with the [Eighth Circuit that it does so apply.
Our earlier discussion of the D&E procedure, supra, at 5—7, shows that it
falls within the statutory prohibition. The statute forbids “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.” Neb. Rev. Stat.
Ann. §28—326(9) (Supp. 1999). We do not understand how one could distinguish, using this language,
between D&E (where a foot or arm is drawn through the cervix) and D&X (where the body up to the head is drawn
through the cervix). Evidence before the trial court makes clear that D&E will often involve a physician
pulling a “substantial portion” of a still living fetus, say, an arm or leg, into the vagina prior to
the death of the fetus. 11 F. Supp. 2d, at 1128; id., at 1128—1130. Indeed D&E involves
dismemberment that commonly occurs only when the fetus meets resistance that restricts the motion of the
fetus: “The dismemberment occurs between the traction of … the instrument and the counter-traction
of the internal os of the cervix.” Id., at 1128. And these events often do not occur until after
a portion of a living fetus has been pulled into the vagina. Id., at 1104; see also Medical and
Surgical Abortion 135 (“During the mid-second trimester, separation of the fetal corpus may occur when the
fetus is drawn into the lower uterine segment, where compression and traction against the endocervix
facilitates disarticulation”).
Even 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. The language does not track the medical differences between
D&E and D&X-though it would have been a simple matter, for example, to provide an exception for the performance
of D&E and other abortion procedures. E.g., Kan. Stat. Ann. §65—6721(b)(1) (Supp. 1999). Nor
does the statute anywhere suggest that its application turns on whether a portion of the fetus’ body is
drawn into the vagina as part of a process to extract an intact fetus after collapsing the head as opposed to a
process that would dismember the fetus. Thus, the dissenters’ argument that the law was generally
intended to bar D&X can be both correct and irrelevant. The relevant question is not whether the
legislature wanted to ban D&X; it is whether the law was intended to apply only to D&X. The plain
language covers both procedures. A rereading of pages 5—10 of this opinion, as well as Justice
Thomas’ dissent at pages 5—7, will make clear why we can find no difference, in terms of
this statute, between the D&X procedure as described and the D&E procedure as it might be performed.
(In particular, compare post, at 6—7, (Thomas, J., dissenting), with post, at 7—10
(Thomas, J., dissenting)). Both procedures can involve the introduction of a “substantial portion”
of a still living fetus, through the cervix, into the vagina–the very feature of an abortion that leads
Justice Thomas to characterize such a procedure as involving “partial birth.”
The Nebraska State Attorney General argues that the statute does differentiate
between the two procedures. He says that the statutory words “substantial portion” mean “the
child up to the h;
of a still living fetus, through the cervix, into the vagina–the very feature of an abortion that leads
Justice Thomas to characterize such a procedure as involving “partial birth.”
The Nebraska State Attorney General argues that the statute does differentiate
between the two procedures. He says that the statutory words “substantial portion” mean “the
child up to the head.” He consequently denies the statute’s application where the physician
introduces into the birth canal a fetal arm or leg or anything less than the entire fetal body. Brief for
Petitioners 20. He argues further that we must defer to his views about the meaning of the state statute.
Id., at 12—13.
We cannot accept the Attorney General’s narrowing interpretation of the Nebraska
statute. This Court’s case law makes clear that we are not to give the Attorney General’s
interpretative views controlling weight. For one thing, this Court normally follows lower federal-court
interpretations of state law. McMillian v. Monroe County,
520 U.S. 781, 786 (1997);
Brockett v. Spokane Arcades, Inc.,
472 U.S. 491, 500, n. 9 (1985).
It “rarely reviews a construction of state law agreed upon by the two lower federal courts.”
Virginia v. American Booksellers Assn., Inc.,
484 U.S. 383, 395 (1988).
In this case, the two lower courts have both rejected the Attorney General’s narrowing interpretation.
For another, our precedent warns against accepting as “authoritative” an
Attorney General’s interpretation of state law when “the Attorney General does not bind the state
courts or local law enforcement authorities.” Ibid.. Under Nebraska law, the Attorney
General’s interpretative views do not bind the state courts. State v. Coffman,
213 Neb. 560, 561, 330 N. W. 2d 727, 728 (1983) (Attorney General’s issued opinions, while
entitled to “substantial weight” and “to be respectfully considered,” are of “no
controlling authority”). Nor apparently do they bind elected county attorneys, to whom Nebraska gives
an independent authority to initiate criminal prosecutions. Neb. Rev. Stat.
Ann. §§23—1201(1), 28—328(5), 84—205(3) (1999 and Supp. 1999); cf. Crandon
v. United States, 494 U.S.
152, 177 (1990) (Scalia, J., concurring in judgment) (“[W]e have never thought that the
interpretation of those charged with prosecuting criminal statutes is entitled to deference”).
Nor can we say that the lower courts used the wrong legal standard in assessing the
Attorney General’s interpretation. The Eighth Circuit recognized its “duty to give [the law] a
construction … that would avoid constitutional doubts.” 192 F.3d, at 1150. It nonetheless
concluded that the Attorney General’s interpretation would “twist the words of the law and give
them a meaning they cannot reasonably bear.” Ibid. The Eighth Circuit is far from alone in
rejecting such a narrowing interpretation. The language in question is based on model statutory
language (though some States omit any further definition of “partial birth abortion”), which 10
lower federal courts have considered on the merits. All 10 of those courts (including the Eighth Circuit)
have found the language potentially applicable to other abortion procedures. See Planned Parenthood of
Greater Iowa, Inc. v. Miller, 195 F.3d 386 (CA8 1999); Little Rock Family Planning Services v.
Jegley, 192 F.3d 794, 797—798 (CA8 1999); Hope Clinic, 195 F.3d, at 865—871 (imposing
precautionary injunction to prevent application beyond D&X); id., at 885—889 (Posner, C. J.,
dissenting); Rhode Island Medical Soc., 66 F. Supp. 2d, at 309310; Richmond Medical Center for
Women, 55 F. Supp. 2d, at 471; A Choice for Women, 54 F. Supp. 2d, at 1155; Causeway Medical
Suite, 43 F. Supp. 2d, at 614—615; Planned Parenthood of Central N. J.
v. Verniero, 41 F. Supp. 2d 478, 503—504 (NJ 1998); Eubanks v. Stengel, 28 F.
Supp. 2d 1024, 1034—1035 (WD Ky. 1998); Planned Parenthood of Southern Arizona, Inc.
v. Woods, 982 F. Supp. 2d 1369, 1378 (Ariz. 1997); Kelley, 977 F. Supp. 2d, at
1317; but cf. Richmond Medical Center v. Gilmore, 144 F.3d 326, 330—332 (CA4 1998)
(Luttig, J., granting stay).
Regardless, even were we to grant the Attorney General’s views “substantial
weight,” we still have to reject his interpretation, for it conflicts with the statutory language
discussed at page 21, above. The Attorney General, echoed by the dissents, tries to overcome that language
by relying on other language in the statute; in particular, the words “partial birth abortion,” a
term ordinarily associated with the D&X procedure, and the words “partially delivers vaginally a living
unborn child.” Neb. Rev. Stat. Ann. §28—326(9). But these words cannot help the Attorney
General. They are subject to the statute’s further explicit statutory definition, specifying
that both terms include “delivering into the vagina a living unborn child, or a substantial portion
thereof.” Ibid. When a statute includes a term “means” … excludes any meaning that is not
stated’ ”); Western Union Telegraph Co. v. Lenroot,
323 U.S. 490, 502 (1945);
Fox v. Standard Oil Co. of N. J.,
294 U.S. 87, 95—96 (1935)
(Cardozo, J.); see also 2A N. Singer, Sutherland on Statutes and Statutory Construction §47.07, p. 152,
and n. 10 (5th ed. 1992) (collecting cases). That is to say, the statute, read “as a whole,”
post, at 20 (Thomas, J., dissenting), leads the reader to a definition. That definition does not
include the Attorney General’s restriction–“the child up to the head.” Its words,
“substantial portion,” indicate the contrary.
The Attorney General also points to the Nebraska Legislature’s debates, where
the term “partial birth abortion” appeared frequently. But those debates hurt his argument more than
they help it. Nebraska’s legislators focused directly upon the meaning of the word
“substantial.” One senator asked the bill’s sponsor, “[Y]ou said that as small a portion
of the fetus as a foot would constitute a substantial portion in your opinion. Is that correct?” The
sponsoring senator replied, “Yes, I believe that’s correct.” App. 452—453; see also
id., at 442—443 (same senator explaining “substantial” would “indicate that more
than a little bit has been delivered into the vagina,” i.e., “[e]nough that would allow for
the procedure to end up with the killing of the unborn child”); id., at 404 (rejecting amendment to
limit law to D&X). The legislature seems to have wanted to avoid more limiting language lest it become too
easy to evade the statute’s strictures–a motive that Justice Thomas well explains. Post, at
24—25. That goal, however, exacerbates the problem.
The Attorney General, again echoed by the dissents, further argues that the statute
“distinguishes between the overall ‘abortion procedure’ itself and the separate
‘procedure’ used to kill the unborn child.” Brief for Petitioners 16—18; post, at
13—14 (opinion of Thomas, J.), 21 (opinion of Kennedy, J.). Even assuming that the distinction would help
the Attorney General make the D&E/D&X distinction he seeks, however, we cannot find any language in the statute
that supports it. He wants us to read “procedure” in the statute’s last