Body Politic

In 1998, Dr. Carhart sued the state of Nebraska, challenging a law banning intact dilation and extraction (D&X), a common late-term abortion procedure. The procedure was referred to by some as “partial-birth abortion.” His case went to the Supreme Court as Stenberg v. Carhart (often referred to as Carhart I) in 2000. In this case, the Court ruled 5-4 that the Nebraska statute was unconstitutional under the standards set in Roe and Casey. Justice Stephen Breyer authored the opinion, which relied heavily on Dr. Carhart’s medical testimony that D&X was sometimes the safest method to terminate a late-term pregnancy and could be medically necessary. Justice Anthony Kennedy’s dissent criticized the majority’s reliance on Dr. Carhart’s expertise, and asserted that the majority opinion misrepresented the details of the D&X procedure.

In 2003, the federal government passed the Partial-Birth Abortion Ban Act. The act banned any procedure in which the death of the fetus occurred once “the entire fetal head or any part of the fetal trunk past the navel is outside the body of the mother.” This meant that the D&X procedure would be outlawed nationwide. Dr. Carhart again led the case against the ban, arguing that it was unconstitutional under Roe, Casey, and Carhart I. His case again made it to the Supreme Court.

A key issue at oral argument was the amount of deference that courts are supposed to give to Congressional findings regarding medical facts. If Congress says that the D&X procedure is never medically necessary, but some members of the medical community disagree, should courts defer to the findings of Congress or to the doctors? They also debated whether there was enough difference from Carhart I to rule differently. (Plus there was an unusual outburst from an observer in the courtroom.)

Justice Anthony Kennedy wrote the majority opinion in the 5-4 decision. He stated that because the act only outlawed one major late-term abortion procedure, D&X, it did not create an undue burden on pregnant women seeking abortions. Justice Kennedy echoed some of his dissent from Carhart I, and he wrote that when the medical community had yet to determine the necessity of a procedure, the legislature was free to regulate it. The Court upheld “specific anatomical landmarks” in the statute. These landmarks were what separated the Nebraska statute in Carhart I from the federal statute in this case. For Kennedy, those distinctions mattered and separated D&X from other late-term abortion procedures.

Justice Ruth Bader Ginsburg wrote the fiery dissent, which was joined by Justices John Paul Stevens, David Souter, and Stephen Breyer. She wrote that upholding the Act violated the precedent set by Casey, and that the statute must include a provision regarding the pregnant woman’s health, which was absent. In announcing her dissent from the bench, she criticized the majority opinion as infringing on women’s rights.