Such an approach is particularly appropriate in this case because, as the majority notes, Nebraska courts accord the Nebraska Attorney General's interpretations of state statutes "substantial weight." 2d, at 1106. 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. Found insideWith Left Turn readers can easily calculate their own PQ—to decide for themselves if the bias exists. This timely, much-needed study brings fact to this often overheated debate. See Brief for State Appellants in Nos. Nebraska's ban covers not just the dilation and extraction (D&X) procedure, but also the dilation and evacuation (D&E) procedure, "the most commonly used method for performing previability second trimester abortions." Jackson Womens Health Organization SCOTUS Response 9-13-21 - Free download as PDF File (.pdf), Text File (.txt) or read online for free. Even if we were inclined to certify the question now, we cannot do so. It involves removing the fetus from the uterus through the cervix "intact," i. e., in one pass rather than several passes. The House and Senate again adopted the legislation, as amended, by wide margins. Pp. cian's right to practice medicine in the way he or she saw fit; for, according to the Akron Court, "[i]t remains primarily the responsibility of the physician to ensure that appropriate information is conveyed to his patient, depending on her particular circumstances." In so ruling the Court misapplies settled doctrines of statutory construction and contradicts Casey's premise that the States have a vital constitutional position in the abortion debate. From reading the majority's sanitized description, one would think that this case involves state regulation of a widely accepted routine medical procedure. J. Obstet. The intact D&E proceeds in one of two ways, depending on the presentation of the fetus. 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. 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. Today's decision, that the Constitution of the United States prevents the prohibition of a horrible mode of abortion, will be greeted by a fire storm of criticism-as well it should. The legislatures of the several States have superior factfinding capabilities in this regard. The Congressional Record contained numerous references to Dr. Haskell's procedure. See Planned Parenthood of Wis. v. Doyle, 9 F. Supp. Substantial evidence supports Nebraska's conclusion that its law denies no woman a safe abortion. Ibid. 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. After a trial on the merits, during which both sides presented several expert witnesses, the District Court held the statute unconstitutional. The Court's next holding is that Nebraska's ban forbids both the D&X procedure and the more common D&E proce-. But I never put much stock in Casey's explication of the inexplicable. specializing in abortions, filed an action seeking a preliminary injunction against the enforce-ment of Nebraska's newly enacted "partial-birth" abortion statute.8 What everybody knows the court must know, and therefore the state court judicially knew, as this court knows, that an opposite theory accords with the common belief, and is maintained by high medical authority. Id., at 1126, n. 39. But no matter. Pp. AMA Board of Trustees Factsheet on H. R. 1122 (June 1997), in App. Nos. 10. See Gynecologic, Obstetric, and Related. The State chose to forbid a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life, while the State still protected the woman's autonomous right of choice as reaffirmed in Casey. To the extent they endorsed a broad reading of the ordinance, the lower courts ran afoul of the well-established principle that statutes will be interpreted to avoid constitutional difficulties." The law challenged in Akron required the abortionist to inform the woman of the status of her pregnancy, the development of her fetus, the date of possible viability, the physical and emotional complications that may result from an abortion, and the availability of agencies to provide assistance and information. lief that Roe v. Wade, 410 U. S. 133 (1973), had "call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution," Casey, 505 U. S., at 867, and that the decision in Casey would ratify that happy truce. At the end of the procedure, the physician is left, in respondent's words, with a "tray full of pieces." @article{Berkowitz2001StenbergVC, title={Stenberg v. Carhart: women retain their right to choose. Approximately 10% of all abortions are performed during the second trimester of pregnancy (12 to 24 weeks). Id., at 897. In this respect their opinions were. The problem for Nebraska is. 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. Oral arguments before the United States Supreme Court in Stenberg v. See Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S., at 814 (O'CONNOR, J., dissenting); Madsen v. Women's Health Center, Inc., 512 U. S. 753, 785 (1994) (SCALIA, J., concurring in judgment in part and dissenting in part). 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. Dr. Carhart also challenged the law as being vague, arguing that it was unclear what "substantial portion" meant. 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. App. 99—1152; Voinovich, 911 F. Supp. But, significantly, the physician has not "delivered" the child before performing the death-causing procedure or "for the purpose of" performing the death-causing procedure; the dismemberment "delivery" is itself the act that causes the fetus' death.8. Because fetal tissue is friable and easily broken, the fetus may not be removed intact. Post, at 969 (KENNEDY, J., dissenting). 58. DOI: 10.2307/1144268 Corpus ID: 8427144. ); id., at 525 (O'CONNOR, J., concurring in part and concurring in judgment). Demonstrating a further and basic misunderstanding of Casey, the Court holds the ban on the D&X procedure fails because it does not include an exception permitting an abortionist to perform a D&X whenever he believes it will best preserve the health of the woman. All medical authorities agree, however, that the entire abortion procedure begins several days before this stage, with the dilation of the cervix. The Court cannot conclude the D&X is part of standard medical practice. Id., at 61. It is important to note that, unlike Nebraska, some other States have enacted statutes more narrowly tailored to proscribing the D&X procedure alone. See Brief for Association of American Physicians and Surgeons et al. Roe v. Wade, 410 U. S. 113 (1973); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). as Amici Curiae 21-23; see also Sprang & Neerhof, Rationale for Banning Abortions Late in Pregnancy, 280 JAMA 744, 746 (Aug. 26, 1998). Hope Clinic v. Ryan, 195 F.3d 857 (CA7 1999) (en banc) (consider-. Pp. Requiring such an exception in this case is no departure from Casey, but simply a straightforward application of its holding. Neb. Nebraska, along with supporting amici, replies that these findings are irrelevant, wrong, or applicable only in a tiny number of instances. Casey discussed the informed consent requirement struck down in Akron and held Akron was wrong. 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. There is, of course, no requirement that a legislature use terminology accepted by the medical community. Carhart v. Stenberg, 11 F.Supp.2d 1099, 1129 (D.Neb.1998). 10. 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. This procedure, which is used only rarely, is performed on mid- to late-second-trimester (and sometimes third-trimester) fetuses.6 Although there are variations, it is generally per-. the life of a partially delivered fetus, and how much one respects (or believes society ought to respect) the freedom of the woman who gave it life to kill it. Neb. Found inside – Page 69Stenberg v . Carhart , 530 U.S. 914 , 930 ( citation omitted ) . While the Supreme Court subsequently upheld a federal prohibition on so - called " partial ... We are referred to substantial medical authority that D&X perverts. Ann. See Rhode Island Medical Soc. See State v. White, 254 Neb. The State fails to show that banning D&X without a health exception would not create a significant health risk for women. Roe v. Wade, in a 5-4 decision, the Supreme Court struck down such bans as unconstitutional in the case of Stenberg v. Carhart, dated June 28, 2000.4 The … See, e. g., H. R. 1833 Hearing 3, 17,52, 77; S. 6 and H. R. 929 Joint Hearing 45. To be sure, the Court's construction of this statute so as to make it include procedures other than livebirth abortion involves not only a disregard of fair meaning, but an abandonment of the principle that even ambiguous statutes should be interpreted in such fashion as to render them valid rather than void. 2d 1099, 1127-1131 (Neb. All 10 of those courts (including the Eighth Circuit) have found the language potentially applicable to other abortion procedures. It is an abdication of responsibility for the Court to suggest its hands are tied by decisions which paid scant at-. The statute at issue here, however, only excepts those procedures "necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury." Nebraska does not deny that the statute imposes an "undue burden" ifit applies to the more commonly used D&E procedure as well as to D&X. The intact D&E procedure can also be found described in certain obstetric and abortion clinical textbooks, where two variations are recognized. See Planned Parenthood of Wis. v. Doyle, 44 F. Supp. §24—219 (1995); see also Houston v. Hill, supra, at 471 (“It would be manifestly inappropriate to certify a question in a case where … there is no uncertain question of state law whose resolution might affect the pending federal claim”). Also, drawn into question here is whether a state may regulate abortions in such a way that creates any (even minute) health risk to a woman. by Eliot Spitzer, Attorney General of New York, Preeta D. Bansal, Solicitor General, and Jennifer K. Brown, Assistant Attorney General, Andrew Ketterer, Attorney General of Maine, Hardy Myers, Attorney General of Oregon, and William H. Sorrell, Attorney General of Vermont; for the American Civil Liberties Union et al. Ann. Third, the term "partial birth abortion" has been used in state legislation on 28 occasions and by Congress twice. Thus, the dissenters’ argument that the law was generally intended to bar D&X can be both correct and irrelevant. 2d 847, 852 (ND Ill. 1998), vacated, 195 F.3d 857 (CA7 1999), cert. Mr. Stenberg. 271 (testimony of Dr. Stubblefield). Today, however, the medical profession has switched from medical induction of labor to surgical procedures for most second trimester abortions. And those who believe that a 5-to-4 vote on a policy matter by unelected lawyers should not overcome the judgment of 30 state legislatures have a problem, not with the application of Casey, but with its existence. As a pre-law student you are automatically registered for the Casebriefs™ LSAT Prep Course. Held: Nebraska's statute criminalizing the performance of "partial birth abortion[s]" violates the Federal Constitution, as interpreted in Casey and Roe. in Nos. See Neb. The broad rule articulated by the majority and by JUSTICE O'CONNOR are unprecedented expansions of this Court's already expansive pre-Casey jurisprudence. Id., at 1112. The majority asks us, in effect, to replace the words "for the purpose of performing" with the words "in the course of performing" in the portion of § 28-326(9) quoted in the preceding paragraph. Id., at 267 (testimony of Dr. Stubblefield). Ignoring substantial medical and ethical opinion, the Court substitutes its own judgment for the judgment of Nebraska and some 30 other States and sweeps the law away. 505. u. S., at 877. See 11 F. Supp. States may take sides in the abortion debate and come. Yes. 1999), defined "partial-birth abortion" using language similar to that used in the 1997 proposed congressional. 13 For the most part, these States defined the term "partial birth abortion" using language similar to that in the 1995 proposed congressional legislation, that is "an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery." Id., at 5. § 2A:65A-6(e) (West Supp. 8. And the particular procedure at issue in this case, "partial birth abortion," so closely borders on infanticide that 30 States have attempted to ban it. She has joined an opinion which accepts that Dr. Carhart exercises "appropriate medical judgment" in using the D&X for every patient in every procedure, regardless ofindications, after 15 weeks' gestation. 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 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. Before fetal viability, a woman has a right to terminate her pregnancy, id., at 870 (plurality opinion), and a state law is unconstitutional if it imposes on the woman's decision an "undue burden," i. e., if it has the purpose or effect of placing a substantial obstacle in the woman's path, id., at 877. 2d 441, 455 (ED Va. 1999) (citing testimony). If they are wrong, the exception will simply turn out to have been unnecessary. The majority's conclusion makes sense only if the undueburden standard is not whether a "significant body of medical opinion" supports the result, but rather, as JUSTICE GINSBURG candidly admits, whether any doctor could reasonably believe that the partial birth abortion procedure would best protect the woman. Ann. 12 These debates also referred to Dr. Haskell's procedure as D&X. See Casey, supra, at 870. 2000); F. Cunningham et aI., Williams Obstetrics 598 (20th ed. The Supreme Court is obviously applying the strict scrutiny standard of review on the facts in this case. § 390.011 (Supp. 1998); S. C. Code Ann. 2d 1051, 1067 (SD Ohio 1995); Evans v. Kelley, 977 F. Supp. See 505 U. S., at 877 (joint opinion of O'CONNOR, KENNEDY, and SOUTER, JJ. 1999). 14. It ill-serves the Court, its institutional position, and the constitutional sources it seeks to invoke to refuse to issue a forthright affirmation of Nebraska's right to declare that critical moral differences exist between the two procedures. Because of the fetus' size at this stage, the physician generally removes the fetus by dismembering the fetus one piece at a time.3 11 F. Supp. 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. Ante, at 945. Meese v. Keene, 481 U. S. 465, 484-485 (1987) ("It is axiomatic that the statutory definition of the term excludes unstated meanings of that term"); Colautti v. Franklin, 439 U. S., at 392-393, n. 10 ("As a rule, 'a definition which declares what 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. In that ill-starred case, Stenberg v. Carhart, Sandra Day * Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College, and the author of the Born-Alive Infants' Protection Act (2002). 505 U. S., at 871 (plurality opinion). Hope Clinic v. Ryan, 195 F.3d 857 (CA7 1999) (en banc) (considering a similar statute, but reaching a different legal conclusion). as Amici Curiae 21-22 (citation and footnotes omitted). 1992) (collecting cases). The Court noted that there were two commonly understood meanings to the term "political propaganda," id., at 477, and, not surprisingly, chose the definition that was most consistent with the statutory definition, id., at 485. At the conclusion of a D&E abortion no intact fetus remains. Found inside – Page 414Under Roe v . Wade , 410 U.S. 113 ( 1973 ) , this border separates human non - persons from human persons ... Martin , 467 U.S. 253 , 264 ( 1984 ) ( internal quotation marks and citation omitted ) . ... See Stenberg v . Carhart , 530 ... 7. 8605 (1993)). The Court's refusal to recognize Nebraska's right to declare a moral difference between the procedures is a dispiriting disclosure of the illogic and illegitimacy of the Court's approach to the entire case. The term did not appear in descriptions of abortion methods in leading medical textbooks. The law was enjoined before the chief law enforcement officer. Ibid. Stat. And the Court must know (as most state legislatures banning this procedure have concluded) that demanding a "health exception"-which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt? But“we have never held that a federal litigant must await a state-court construction or the development of an established practice before bringing the federal suit.” City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 770, n. 11 (1988). Rendering express what is only implicit in the majority opinion, JUSTICE STEVENS and JUSTICE GINSBURG are forthright in declaring that the two procedures are indistinguishable and that Nebraska has acted both irrationally and without a proper purpose in enacting the law. The State's brief describes its interests as including concern for the life of the unborn and "for the partially-born," in preserving the integrity of the medical profession, and in "erecting a barrier to infanticide." H1230 (Mar. 600. The most to be said for the D&X is it may present an unquantified lower risk of complication for a particular patient but that other proven safe procedures remain available even for this patient. Abortion decision switched from medical induction of labor to Surgical procedures for most second abortion..., 2d ed should easily pass constitutional muster invalidate on its face a marginally higher health from... Misapplied the doctrine of construing statutes to avoid constitutional doubts. 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