Supreme Court Agrees to Review Nebraska Law Banning Partial

Supreme Court Agrees to Review Nebraska Law Banning Partial- Birth Abortions

By Richard Coleson, J.D.

The United States Supreme Court has agreed to review Stenberg v. Carhart, the lawsuit brought by abortionist LeRoy Carhart, that successfully challenged Nebraska's ban on partial-birth abortion. Carhart prevailed at both the trial court and a three-member panel of the 8th Circuit Court of Appeals, which found the 1998 statute unconstitutional. (See related story, page 25.)

However, the High Court has not yet determined whether to review a contrary decision rendered by the 7th Circuit Court of Appeals, which upheld Illinois's and Wisconsin's laws banning partial-birth abortions.

As evidenced by the time frame, the Supreme Court has expedited the Stenberg case. After agreeing in January to hear the case, the justices required that Nebraska file its brief defending the law by February 28 and that Carhart respond one month later. In turn, Nebraska's reply to Carhart's brief must be filed by April 17.

Although no date has been set, the justices indicated they intend to hear oral arguments some time in April. Under that timetable, an opinion would likely be issued by late June or early July.

At issue in Stenberg is a statute modeled after a 1997 law passed by Congress but vetoed by President Clinton that banned killing a child if the child or a "substantial portion" of the child is partially vaginally delivered. On September 25, the 8th Circuit Court of Appeals panel held that the language of the statute would infringe on a different abortion technique, dilation and evacuation (D&E), an interpretation that supporters say is incorrect. D&E involves dismemberment of the baby in the womb.

The panel did not reach the issue of whether the Nebraska law was unconstitutionally "vague." Instead, it took a different tact, citing the 1976 Danforth case.

In Danforth, the Supreme Court struck down a Missouri statute that the justices decided banned the then-most common abortion procedure used after the first trimester (saline abortion) in favor of a technique (the use of prostaglandins) the Court said was not widely available.

Thus, the 8th Circuit panel said, because D&E is a common abortion technique used after the first trimester, the Nebraska law constituted an "undue burden" on a woman's right to an abortion and thus was unconstitutional.

The case does not present the opportunity for the Supreme Court to review its 1973 Roe v. Wade decision or its 1992 Planned Parenthood of S.E. Pennsylvania v. Casey decision, which reaffirmed Roe. The Court refused to accept two issues Nebraska said the justices should consider: (1) whether a partial-born child is a "person" protected by the Constitution, and (2) whether the Court should return the abortion issue to the states.

Instead the justices will address two other issues raised by Nebraska: (1) that the ban should be narrowly construed to apply only to the "intact dilation and extraction" (D&X) procedure and not include D&E abortions, and (2) that the law is not unconstitutional under the "undue burden" standard articulated by the Court in Casey.

Seventh Circuit Affirms
The full 7th Circuit upheld Illinois's and Wisconsin's bans on partial-birth abortions, modeled after a law passed by Congress in 1995 but vetoed by President Clinton, which did not include the "substantial portion" language. Speaking for the majority, Judge Frank Easterbrook wrote, "We conclude that both laws can be enforced in a constitutional manner." Easterbrook concluded that because the laws do not constitute an "undue burden," they do not violate a woman's "right to privacy."

To ensure clarity, the 7th Circuit ordered the trial courts in Illinois and Wisconsin to issue "precautionary injunctions" to prevent the bans from being applied to any abortion procedure other than D&X. However, before this could take effect, the plaintiffs obtained a stay from Supreme Court Justice John Paul Stevens.

While the Illinois statute was overturned by U.S. District Judge Charles Kocoras, U.S. District Judge John Shabaz upheld Wisconsin's law. Unlike Illinois's law, Wisconsin's statute had a thorough airing in court, and Judge Shabaz reviewed that record before rendering his decision.

He concluded that the Wisconsin ban was not vague, that it did not apply to dilation and evacuation abortions, and that the lack of a health exception was permissible because there were alternative abortion procedures available that were equally safe for women seeking abortion.

Both sides in the Illinois case have asked the High Court to review their laws. Similarly, Wisconsin did not object to the pro-abortion plaintiff's request that the Supreme Court review its law.

The state also advised the High Court that Wisconsin would be willing to follow the same expedited briefing schedule which characterized the Nebraska case in order for the justices to consider the cases together.

If the Supreme Court accepts the Illinois and/or Wisconsin cases for review, it has several options. One would be to consider the new cases along with the Nebraska Stenberg case, likely scheduling them for oral argument on the same day. Given the need to allow time for briefing the new cases, this option would make it very difficult for the Court to set oral argument on all the cases and issue an opinion by the end of its term at the end of June. The Court might have to set the arguments for its next term, which begins in October.

However, the Court may also accept a case without setting a briefing and oral argument schedule and hold the case until the court summarily affirms/ reverses or remands the case for the appellate court below to reconsider in light of a decision released by the Supreme Court. Under this scenario, the Supreme Court could accept the Wisconsin and Illinois cases, decide the Nebraska Stenberg case, and then send the cases back to the Seventh Circuit for reconsideration in light of the Nebraska decision.

The fairest thing for the Supreme Court to do would be to accept the Wisconsin case along with Nebraska case and consider them together. (The Illinois case was decided without a full trial on a scanty and unbalanced factual record.)

Appellate courts traditionally afford some deference to the findings of fact issued by trial courts. Thus, to get a balanced perspective, the Supreme Court should accept the Wisconsin case along with the Nebraska case and allow both to be briefed and argued together.