Supreme Court Hears Oral Argument on Partial-Birth Abortion

On April 25, the Supreme Court heard oral argument in Stenberg v. Carhart, a case which will decide the constitutionality of a Nebraska statute banning partial birth abortions (sometimes referred to as D&X abortions). Donald B. Stenberg, the Attorney General of Nebraska, noted in argument that 30 states have voted to ban the procedure, and that Nebraska's ban passed unanimously save for a single dissenting vote. States have a legitimate interest, he asserted, in drawing a bright line between infanticide and abortion.

Oral argument at the Supreme Court is usually peppered with questions from the Justices. Though questions from the bench are not necessarily a sign of how the Justices will vote in a particular case, they can sometimes signal areas of concern to a Justice.

One issue in the case is whether the statute only bans D&X ("partial-birth") abortions or other types of abortion, such as D&Es (dismemberment abortions). Justice O'Connor, who along with Justice Kennedy is widely viewed as a swing vote in this case, said from the bench that she found it difficult to read the Nebraska statute and be certain that it excluded D&Es. They are both gruesome, she added. Mr. Stenberg replied that the statute only bans D&Xs, a position that reflected his opinion as chief law enforcement officer of Nebraska. Did the Attorney General issue a formal opinion to that effect, Justice Kennedy inquired? No, Mr. Stenberg replied, but no one asked for an opinion, and the position Nebraska took in this litigation is shared by other states with respect to their statutes.

Was there any testimony that the health of a woman might require a D&X rather than a D&E abortion, Justice O'Connor asked? The American Medical Association and American College of Obstetricians and Gynecologists, Mr. Stenberg answered, were unable to identify a single circumstance in which a D&X abortion would be the only procedure available.

Justice Ginsberg took issue with the scope of the law, saying Nebraska could have expressly banned only "D&X." Mr. Stenberg noted in rebuttal that there were differences in terminology at the time the law was passed, leaving the legislature to try to describe it.

Justice Breyer said that medical opinion, as reflected in various amicus briefs, appeared to be divided. What is the Court to do when doctors don't agree among themselves, he asked? In those circumstances, Mr. Stenberg replied, the Court should defer to the judgment of the legislature. Few doctors perform D&X abortions, he added, so it is difficult to conclude that a woman's health requires it. Even the doctor who filed suit against the Nebraska ban performs very few D&X abortions.

During Mr. Heller's argument, Justice Kennedy asked whether there are not objective standards that the medical profession as a whole can adopt. Mr. Heller agreed, but claimed that a D&X abortion is in some circumstances the most appropriate procedure in a particular case. (He did not say exactly what sort of case that would be. The findings in the U.S. District Court were favorable to him and he drew on them repeatedly when pressed.)

Doesn't the state have an interest in preventing society from descending into the degree of callousness exhibited by ancient societies that permitted infanticide, Justice Scalia asked? Doesn't
it have an interest in stopping the horror of seeing a live human creature dismembered outside the womb, he asked? Mr. Heller agreed that states have an interest in preventing infanticide, but claimed that interest is already furthered under Nebraska's homicide statute. Ironically Mr. Heller added that comparisons with infanticide could be drawn with respect to any abortion, suggesting that if prevention of infanticide were a sufficient interest to allow states to ban D&X abortions, then states could ban all abortions--a proposition the Court so far has not accepted.

A decision is expected before the end of June.
(The foregoing synopsis was prepared by Michael Moses, Office of NCCB/ USCC General Counsel.)