PPFA - Abortion Bans Are Unconstitutional 

On June 28, 2000, in Stenberg v. Carhart, the U.S. Supreme Court - by a narrow 5-4 vote - struck down a Nebraska law that banned so called "partial-birth" abortion. The fragile five-member majority found the law unconstitutional on two independent grounds: (1) it lacked a health exception and (2) its broad language imposed an "undue burden" on a woman's right to choose abortion.

Health Exception
The majority opinion reaffirmed that when a state restricts access to abortion, a woman's health must be the paramount consideration. As a result, every abortion restriction must contain a health exception that allows an abortion when "necessary, in appropriate medical judgment, for the preservation of the life or health of the mother" (Stenberg v. Carhart, 2000, at 914, 931). The court specifically rejected the state's argument that a health exception is unnecessary because the dilation and extraction ("D&X") abortion procedure is never necessary for a woman's health. It held that "a statute that altogether forbids D&X creates a significant health risk" (Stenberg v. Carhart, 2000, at 938).

Because the Nebraska law lacked any health exception, the court ruled that it is unconstitutional. In addition, the court identified two essential components of a valid health exception to an abortion restriction:

The health exception must allow the physician to exercise reasonable medical judgment, even where medical opinions differ. The court made clear that the exception cannot be limited to situations where the health risk is an "absolute necessity," nor can the law require unanimity of medical opinion as to the need for a particular abortion method (Stenberg v. Carhart, 2000, at 937).

A physician must be able to invoke the health exception not only when pregnancy itself creates a health risk for the woman, but also when the abortion restriction would, without such an exception, "force women to use riskier methods of abortion" (Stenberg v. Carhart, 2000, at 931).

Undue Burden
In ruling that the Nebraska statute imposed an "undue burden" on women's abortion rights, the court rejected Nebraska's claim that the law banned only the D&X abortion procedure. The court held 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," including the most common previability second-trimester method - the dilation and evacuation (D&E) procedure (Stenberg v. Carhart, 2000, at 939).

Thus, the court found that the law could be used to "pursue physicians who use D&E procedures, the most commonly used method for performing previability second-trimester abortions. All those who perform abortion procedures using that method must fear prosecution, conviction, and imprisonment. The result is an undue burden upon a woman's right to make an abortion decision" (Stenberg v. Carhart, 2000, at 945-46).

The majority opinion was written by Justice Breyer and joined by Justices Stevens, O'Connor, Souter, and Ginsburg. Chief Justice Rehnquist and Justices Scalia, Kennedy, and Thomas each wrote dissenting opinions.

Justice O'Connor's Concurrence
Although Justice O'Connor joined the majority opinion in Carhart and voted to strike down the Nebraska law, she wrote a troubling separate concurrence in which she explained that she might be willing to uphold a more narrowly drawn abortion ban that contained a health exception. In particular, she wrote 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" (Stenberg v. Carhart, 2000, at 95, O'Connor, J., concurring).

The Ruling's Effect
In addition to striking down the Nebraska law, the Carhart ruling had the effect of invalidating abortion ban legislation in at least 28 other states, that had enacted nearly identical bans on so-called "partial-birth" abortion. Since the court's ruling in Carhart, only one state - Ohio - has enacted legislation that bans so-called "partial-birth" abortion. A federal district court in Ohio, however, prevented that law from taking effect and ruled that it was unconstitutional because it did not meet the standards established in Carhart for a valid health exception (Women's Medical Professional Corp. et al. v. Taft, 2001). The district court's ruling is on appeal to the U.S. Court of Appeals for the Sixth Circuit. The U.S. Justice Department has submitted an amicus curiae brief to the Sixth Circuit in support of the Ohio law, arguing that the health exception meets constitutional standards.

Cited References
Stenberg v. Carhart, 530 U.S. 914 (2000).
Women's Medical Professional Corp. et al. v. Taft, 162 F. Supp. 2d 929 (S.D. Ohio 2001).

Fact Sheet
Published by the Katharine Dexter McCormick Library
Planned Parenthood Federation of America
434 West 33rd St., New York, NY 10001
212-261-4779
Current as of March 2003.

* This fact sheet can be found in context at the website of Planned Parenthood Federation of America.