Supreme Court Strikes Down Nebraska Ban

Ad Hoc Nullification Machine at Full Throttle

By Richard E. Coleson, J.D.

On June 28, the United States Supreme Court narrowly overturned Nebraska's ban on partial-birth abortion, drawing blistering dissents from Justices Antonin Scalia, Clarence Thomas, and Anthony Kennedy, who were joined by Chief Justice William Rehnquist.

The slim 5-4 majority in Stenberg v. Carhart decided that the 1997 law was unconstitutional because it (1) was overbroad and (2) lacked a health exception. Both points were eloquently and passionately rebutted by the dissenting justices. (See also the stories on pages 2, 3, and 19.)

Written by Justice Stephen Breyer and joined by Justices John Paul Stevens, Sandra Day O'Connor, David Souter, and Ruth Bader Ginsburg, the majority opinion held that Nebraska's law was overbroad because it allegedly banned not only the targeted partial-birth abortion (referred to by the justices as intact dilation and extraction or "D&X") but also the most common post-first-trimester abortion procedure, dilation and evacuation ("D&E"). Therefore, the Court decided the law posed a "substantial obstacle" to women seeking abortion and was consequently an "undue burden" on abortion rights--the test it established in the 1992 case of Planned Parenthood of S.E. Pa. v. Casey.

The majority also decided the law was unconstitutional because it violated Casey's requirement that a prohibition on post-viability abortions contain an exception for when an abortion is "necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." The Nebraska law had a life of the mother exception but no health exception.

Nebraska and numerous "friend of the court" briefs had provided satisfactory arguments to both conclusions. Using the criteria the Court ordinarily uses to interpret statutes, they asserted that the ban clearly prohibited only what the justices called an "intact D&X" procedure, in which the child is partially delivered except for the head, killed by skull puncture and brain suction, and then extracted.

Nebraska said no health exception was needed because alternative procedures - - D&E or an induction abortion - - remained available. If an abortionist thought there was a health reason for an abortion, the woman could have a D&E or induction procedure instead.

Four court dissenters agreed with Nebraska and excoriated the majority both for twisting the normal rules of construction to find the law to be overbroad and for abandoning the promise made in Casey that states had greater power to regulate abortion so long as they didn't actually inhibit access to abortion. Because the law did not limit abortion in any way - - only banning one particularly repugnant method of having one - -it imposed no "substantial obstacle" to obtaining an abortion and no consequent "undue burden," they wrote.

In addition, the dissenters noted, the contention that a partial-birth abortion procedure provided a health advantage for some women in some situations was asserted but not proven.

In the words of Justice Scalia, there was no justification for supplanting the Nebraska legislature's policy decision with the policy preference of five unelected lawyers.

IMPACT OF CONCLUSIONS

The legal implications of the majority's conclusions are staggering. In several ways the impact of their reasoning carried them beyond even what was allowed prior to Casey when virtually every limitation on abortion, however small, was struck down.

Because the High Court decided that plaintiff abortionist LeRoy Carhart had demonstrated that "significant medical authority supports" the proposition that the D&X may be safer than D&E for some women in some circumstances, the court left

the decision whether there was a health need to the sole discretion of the abortionist. A health "exception" would swallow the rule prohibiting partial-birth abortions.

Stenberg reveals (as Justice Thomas observed in his excellent dissent) that "the 'ad hoc nullification' machine is back at full throttle."

Even Justice Kennedy, who joined O'Connor in 1992 to reaffirm an abortion right in Casey, exited when the juggernaut reached partial-birth abortion. His spirited dissent in the Stenberg decision (joined by Chief Justice Rehnquist) had a plaintive tone as he insisted this is not what Casey meant, an argument he addressed at length in his dissent.

But Justice Scalia, in what he described as an "I-told-you-so" mood, disagreed with those on the Court who regarded the decision "as merely a regrettable misapplication of Casey."

"It is not that, but is Casey's logical and entirely predictable consequence," he wrote. All Casey ever promised, Scalia insisted, was "a democratic vote by nine lawyers . . . upon the pure policy question whether this limitation upon abortion is 'undue' - - i.e., goes too far."

While these ringing dissents lost in Stenberg, they may well prevail over time. There is a good chance that one day Stenberg will be relegated to the hall of infamy where outrageous, overturned opinions of the Supreme Court may be viewed for the lessons they teach.