search > law center			dictionary
[an error occurred while processing this directive]

Supreme Court strikes down Nebraska anti-abortion law

The Nebraska law, struck down today by the Supreme Court, was challenged by Dr. Leroy Carhart, one of the state's three abortion providers

June 28, 2000
Web posted at: 12:47 p.m. EDT (1647 GMT)

WASHINGTON (CNN) -- A sharply divided Supreme Court ruled Wednesday that a Nebraska law banning a controversial abortion procedure imposed an "undue burden" on women.

The court, by a 5-4 vote, ruled that an appeals court was correct to strike down a law making it a crime to perform what anti-abortion activists call "partial birth abortions."

Justice Steven Breyer, writing for the majority, said the law does not include the required exception allowing an abortion to preserve the health of the mother. The state may promote, but not endanger, a woman's health when it regulates methods of abortion, Breyer said.

FULL TEXT Stenberg v. Carhart Decision (Findlaw) Case Briefs (Findlaw)

Special report Overview Cases Calendar Opinions The Court Message Board Supreme Court Site

Supreme Court Center   Court History   The Justices   Landmark Decisions   Court opinions: Party name: Full-text: Law Dictionary

Doctors call the procedure, where the fetus is partially removed from the vagina and the skull collapsed, intact dialation and extraction.

Nebraska law too broad

The court ruled the Nebraska law was too broad and could criminalize the more common procedure of dilation and evacuation, or D&E, in which an arm or leg of a live fetus may be pulled into the birth canal during the abortion operation.

"Using this law, some present prosecutors and future attorneys general may choose to pursue physicians who use D&E procedures, the most commonly used method for performing previability second-trimester abortions," Justice Stephen G. Breyer wrote.

Justices John Paul Stevens, Sandra Day O'Connor, David Souter and Ruth Bader Ginsburg joined Breyer.

The Nebraska case was the first major abortion dispute to come before the U.S. Supreme Court since 1992 when the court reaffirmed the landmark 1973 Roe v. Wade decision which gives women the constitutional right to an abortion.

Ginsburg and Breyer joined the court after the 1992 decision in Planned Parenthood v. Casey in which the justices then on the court upheld the constitutional right to abortion by a 5-4 vote.

Wednesday's ruling was the first on abortion for those two justices.

Thomas: procedure 'borders on infanticide'

Chief Justice William H. Rehnquist and Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy dissented.

Kennedy was one of the co-authors of the 1992 Supreme Court decision that upheld the constitutional right to abortion. O'Connor and Souter were the other co-authors.

O'Connor, who supplied the critical fifth vote for striking down Nebraska's law, wrote a concurring opinion that said some version of a partial-birth abortion law might be constitutional.

"A ban on partial-birth abortion that only proscribed the D&E method of abortion and that included an exception to preserve the life and health of the mother would be constitutional in my view," she said.

Thomas, writing for himself, Rehnquist and Scalia, suggested that the ruling will have a direct impact on the partial-birth abortion laws in 29 other states.

"Today we are told that 30 states are prohibited from banning one rarely used form of abortion that they believe to border on infanticide," he said. "It is clear that the Constitution does not compel this result."

The 1977 Nebraska law was challenged by Dr. LeRoy Carhart, one of the state's three abortion providers and the only one who performed the controversial procedure.

Under the law, a physician would have faced felony charges, including up to 20 years in prison, a $25,000 fine, or both, and lose his or her license.

Carhart had argued that the ban was so broad that "it would criminalize 98 percent of the abortions in Nebraska today."

Since he filed his lawsuit, Carhart's rural home was burned down. The family dog and cat were killed, as were 17 horses trapped in a barn that also was set ablaze.

Carhart said he received an anonymous letter, postmarked the same day as the fire, justifying the action as a statement against "the killing of babies."

Carhart was in the ornate courtroom when Wednesday's decision was announced.

The case is Stenberg v. Carhart.

The Associated Press contributed to this report.

What the "Partial-Birth" Abortion Case is Really About

U. S. 8th Circuit Court of Appeals 1999 decision

Note: Pages will open in a new browser window

External sites are not endorsed by CNN Interactive.