"Drawing a Bright Line Between Abortion and Infanticide"

Editor's note. The following are excerpts from oral arguments presented in Stenberg v. Carhart, which took place before the United States Supreme Court April 25. At issue in case No. 99-830 is Nebraska's 1997 ban on partial-birth abortions. Stenberg refers to Nebraska Attorney General Don Stenberg. Carhart is Nebraska abortionist LeRoy Carhart. Simon Heller is Carhart's attorney.

CHIEF JUSTICE WILLIAM REHNQUIST: We'll hear argument now in Number 99-830, Don Stenberg v. LeRoy Carhart.

ATTORNEY GENERAL STENBERG: Mr. Chief Justice, and may it please the Court:

In Roe v. Wade, this Court said that there is no absolute right to terminate a pregnancy at whatever time, in whatever way, and for whatever reason a woman chooses. With that legal principle, and the Casey undue burden test in mind, the issue here today is whether a State may prohibit a little-used form of abortion that borders on infanticide when safe, alternative forms of abortion remain available to women who seek abortions.

Clearly, the State can constitutionally ban some abortion procedures. ...

JUSTICEANTONIN SCALIA: [Attorney] General Stenberg, I took it that what you meant when you said it bordered on infanticide had nothing to do with the viability of the fetus, but that the procedure looks more like infanticide. ...

STENBERG: Yes.

SCALIA: ...when the child is killed outside the womb than when it is killed inside the womb, and therefore it can coarsen public perception to other forms of killing fetuses or children outside the womb. Is that not what the legislature was concerned about?

STENBERG: That is precisely the point, Your Honor, and that is precisely what motivated the legislature of the State of Nebraska in this case. In fact, the State interest here was so strong that the statute passed the Nebraska legislature with only one dissenting vote, with many pro-choice State legislators voting in favor of this ban on partial birth abortion.

Now, the respondent argues that drawing a bright line between abortion and infanticide is not a valid state interest. The respondent argues that there are only two valid State interests, one being maternal health and the other essentially discouraging abortions.

However, Casey specifically recognized that other State interests could be weighed as part of the undue burden test, and ... the Court said, "a statute which, while furthering this interest in potential life or some other valid State interest," and then goes on to describe the substantial obstacle test, so the Court recognized that there could be other State interests besides merely maternal health and discouraging abortions.

Now, the respondent next argues that even if there is a valid State interest, that it can only be asserted if it creates no burden on a woman's right to have an abortion. The respondent implicitly asks this Court to adopt a no-burden test, or perhaps reestablish a strict scrutiny test in place of Casey.

The respondent argues that, under the no-burden test that any State regulation which increases the health risk to a woman by even the slightest amount is unconstitutional. This is contrary to Casey, which upheld the 24-hour waiting period because it did not create "a real health risk," or "a significant threat" to the health of a woman.

The respondent also asks this Court to in fact adopt an all-or-nothing test in place of the large fraction test to judge the facial constitutionality of abortion restrictions. In other words, the respondent argues that unless a statute is constitutional in every conceivable application, it must be struck down as facially unconstitutional. ...

SCALIA (questioning Simon Heller, attorney for LeRoy Carhart): Roe - Roe - neither Roe nor Casey are written in the Constitution. They may not have mentioned all of the - all of the appropriate interests that may be taken into account. Why is it not an appropriate interest that the State is worried about rendering society callous to infanticide?

There were very many highly civilized societies, including the ancient Greeks, who permitted infanticide, who said that the right of parents included the right not to be burdened with a child they didn't want, especially a deformed child. And therefore, in order to prevent other societies descending into that degree of callousness, the - numerous States that have enacted these laws - I don't think it's so much a concern with medical matters. I think it's a concern with the horror of seeing, you know, a live human creature outside the womb dismembered.

HELLER: Well, again, let me start by saying that ...

SCALIA: Why can't that be a valid societal interest ...

HELLER: There's certainly ...

SCALIA: ...whether it's expressed in Roe and Casey or not? ...

STENBERG REBUTTAL

STENBERG: Thank you, Your Honor.

First of all, on May 20th, 1997, the Nebraska legislature adopted an amendment that was proposed to Congress by the American Medical Association for the purpose of making clear that the statute did not prohibit the D&E procedure. And the best discussion of that can be found on page 418 of the joint appendix.

JUSTICE RUTH BADER GINSBERG: Why didn't they just say that, General Stenberg? Why didn't they just-I mean, that was proposed, Mr. Heller told us-say that what's banned is D&X, what's not banned is D&E? That was such a simple way of clarifying it. Why didn't they do that?

STENBERG: Because the Nebraska legislature was relying on the American Medical Association and the Congress of the United States and patterned their legislation on that. And they felt that if this gained the support of the American Medical Association and Congress, which it did for the 1997 law, that they wanted to pattern that and rely on the American Medical Association and their lawyers and congressional lawyers.