Don Stenberg vs. Leroy Carhart
| STENBERG v. CARHART (99-830) 192 F.3d 1142, affirmed. | ||||||||
|---|---|---|---|---|---|---|---|---|
| Syllabus | Opinion [ Breyer ] | Concurrence [ Stevens ] | Concurrence [ Connor ] | Concurrence [ Ginsburg ] | Dissent [ Rehnquist ] | Dissent [ Scalia ] | Dissent [ Kennedy ] | Dissent [ Thomas ] |
Opinion of the Court
NOTICE: This opinion is subject to formal
revision before publication in the preliminary print of the United States
Reports. Readers are requested to notify the Reporter of
Decisions, Supreme Court of the United States, Washington, D. C. 20543, of
any typographical or other formal errors, in order that corrections may be made
before the preliminary print goes to press.
SUPREME COURT OF THE UNITED
STATES
No. 99?830
DON STENBERG, ATTORNEY GENERAL OF NEBRASKA, et al., PETITIONERS
v.
LEROY CARHART
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT
[June 28,
2000] Justice
Breyer delivered the opinion of the Court.
We again consider the right to an abortion. We
understand the controversial nature of the problem. Millions of Americans
believe that life begins at conception and consequently that an abortion is akin
to causing the death of an innocent child; they recoil at the thought of a law
that would permit it. 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. Taking account of these virtually
irreconcilable points of view, aware that constitutional law must govern a
society whose different members sincerely hold directly opposing views, and
considering the matter in light of the Constitution?s guarantees of fundamental
individual liberty, this Court, in the course of a generation, has determined
and then redetermined that the Constitution offers basic protection to the
woman?s right to choose. Roe v. Wade, 410 U.S.
113 (1973); Planned Parenthood of Southeastern Pa. v. Casey,
505 U.S.
833 (1992). We shall not revisit those legal principles. Rather, we apply
them to the circumstances of this case.
Three established principles determine the issue
before us. We shall set them forth in the language of the joint opinion in
Casey. First, before ?viability ? the woman has a right to choose to
terminate her pregnancy.? Id., at 870 (joint opinion of O?Connor,
Kennedy, and Souter, JJ.).
Second, ?a law designed to further the State?s
interest in fetal life which imposes an undue burden on the woman?s decision
before fetal viability? is unconstitutional. Id., at 877. An ?undue
burden is ? shorthand for the conclusion that a state regulation has the purpose
or effect of placing a substantial obstacle in the path of a woman seeking an
abortion of a nonviable fetus.? Ibid.
Third, ? ?subsequent to
viability, the State in promoting its interest in the potentiality of human life
may, if it chooses, regulate, and even proscribe, abortion except where it is
necessary, in appropriate medical judgment, for the preservation of the life or
health of the mother.? ? Id., at 879 (quoting
Roe v. Wade, supra, at 164?165).
We apply these principles to a Nebraska law banning
?partial birth abortion.? The statute reads as follows:
?No partial birth abortion shall be performed in this
state, unless such procedure is necessary to save the life of the mother whose
life is endangered by a physical disorder, physical illness, or physical injury,
including a life-endangering physical condition caused by or arising from the
pregnancy itself.? Neb. Rev. Stat. Ann. ?28?328(1) (Supp. 1999).
The statute defines ?partial birth abortion? as:
?an abortion procedure in which the person performing the abortion partially
delivers vaginally a living unborn child before killing the unborn child and
completing the delivery.? ?28?326(9).
It further defines ?partially delivers vaginally a living unborn child before
killing the unborn child? to mean
?deliberately and intentionally delivering into the vagina a living unborn
child, or a substantial portion thereof, for the purpose of performing a
procedure that the person performing such procedure knows will kill the unborn
child and does kill the unborn child.? Ibid.
The law classifies violation of the statute as a ?Class III felony? carrying
a prison term of up to 20 years, and a fine of up to $25,000. ??28?328(2),
28?105. It also provides for the automatic revocation of a doctor?s license to
practice medicine in Nebraska. ?28?328(4).
We hold that this statute violates the
Constitution.
I
A
Dr. Leroy Carhart is a Nebraska physician who
performs abortions in a clinical setting. He brought this lawsuit in Federal
District Court seeking a declaration that the Nebraska statute violates the
Federal Constitution, and asking for an injunction forbidding its enforcement.
After a trial on the merits, during which both sides presented several expert
witnesses, the District Court held the statute unconstitutional. 11
F. Supp. 2d 1099 (Neb. 1998). On appeal, the Eighth Circuit affirmed.
192 F.3d 1142 (1999); cf. Hope Clinic v. Ryan, 195 F.3d 857 (CA7
1999) (en banc) (considering a similar statute, but reaching a different legal
conclusion). We granted certiorari to consider the matter.
B
Because Nebraska law seeks to ban one method of
aborting a pregnancy, we must describe and then discuss several different
abortion procedures. Considering the fact that those procedures seek to
terminate a potential human life, our discussion may seem clinically cold or
callous to some, perhaps horrifying to others. There is no alternative way,
however, to acquaint the reader with the technical distinctions among different
abortion methods and related factual matters, upon which the outcome of this
case depends. For that reason, drawing upon the findings of the trial court,
underlying testimony, and related medical texts, we shall describe the relevant
methods of performing abortions in technical detail.
The evidence before the trial court, as supported or
supplemented in the literature, indicates the following:
1. About 90% of all abortions performed in the United
States take place during the first trimester of pregnancy, before 12 weeks of
gestational age. Centers for Disease Control and Prevention, Abortion
Surveillance?United States, 1996, p. 41 (July 30, 1999) (hereinafter
Abortion Surveillance). During the first trimester, the predominant abortion
method is ?vacuum aspiration,? which involves insertion of a vacuum tube
(cannula) into the uterus to evacuate the contents. Such an abortion is
typically performed on an outpatient basis under local anesthesia. 11 F. Supp.
2d, at 1102; Obstetrics: Normal & Problem Pregnancies 1253?1254 (S. Gabbe,
J. Niebyl, & J. Simpson eds. 3d ed. 1996). Vacuum aspiration is considered
particularly safe. The procedure?s mortality rates for first trimester abortion
are, for example, 5 to 10 times lower than those associated with carrying the
fetus to term. Complication rates are also low. Id., at 1251; Lawson
et al., Abortion Mortality, United States, 1972 through 1987, 171 Am. J.
Obstet. Gynecol. 1365, 1368 (1994); M. Paul, et al., A Clinicians Guide to
Medical and Surgical Abortion 108?109 (1999) (hereinafter Medical and Surgical
Abortion). As the fetus grows in size, however, the vacuum aspiration method
becomes increasingly difficult to use. 11 F. Supp. 2d, at 1102?1103; Obstetrics:
Normal & Problem Pregnancies, supra, at 1268.
2. Approximately 10% of all abortions are performed
during the second trimester of pregnancy (12 to 24 weeks). Abortion Surveillance
41. In the early 1970?s, inducing labor through the injection of saline into the
uterus was the predominant method of second trimester abortion. Id., at
8; Planned Parenthood of Central Mo. v. Danforth, 428 U.S.
52, 76 (1976). Today, however, the medical profession has switched from
medical induction of labor to surgical procedures for most second trimester
abortions. The most commonly used procedure is called ?dilation and evacuation?
(D&E). That procedure (together with a modified form of vacuum aspiration
used in the early second trimester) accounts for about 95% of all abortions
performed from 12 to 20 weeks of gestational age. Abortion Surveillance 41.
3. D&E ?refers generically to transcervical
procedures performed at 13 weeks gestation or later.? American Medical
Association, Report of Board of Trustees on Late-Term Abortion, App. 490
(hereinafter AMA Report). The AMA Report, adopted by the District Court,
describes the process as follows.
Between 13 and 15 weeks of gestation:
?D&E is similar to vacuum aspiration except that the cervix must be
dilated more widely because surgical instruments are used to remove larger
pieces of tissue. Osmotic dilators are usually used. Intravenous fluids and an
analgesic or sedative may be administered. A local anesthetic such as a
paracervical block may be administered, dilating agents, if used, are removed
and instruments are inserted through the cervix into the uterus to removal fetal
and placental tissue. Because fetal tissue is friable and easily broken, the
fetus may not be removed intact. The walls of the uterus are scraped with a
curette to ensure that no tissue remains.? Id., at 490?491.
After 15 weeks:
?Because the fetus is larger at this stage of gestation (particularly the
head), and because bones are more rigid, dismemberment or other destructive
procedures are more likely to be required than at earlier gestational ages to
remove fetal and placental tissue.? Id., at 491.
After 20 weeks:
?Some physicians use intrafetal potassium chloride or digoxin to induce fetal
demise prior to a late D&E (after 20 weeks), to facilitate evacuation.?
Id., at 491?492.
There are variations in D&E operative strategy;
compare ibid. with W. Hern, Abortion Practice 146?156 (1984), and Medical
and Surgical Abortion 133?135. However, the common points are that D&E
involves (1) dilation of the cervix; (2) removal of at least some fetal tissue
using nonvacuum instruments; and (3) (after the 15th week) the potential need
for instrumental disarticulation or dismemberment of the fetus or the collapse
of fetal parts to facilitate evacuation from the uterus.
4. When instrumental disarticulation incident to
D&E is necessary, it typically occurs as the doctor pulls a portion of the
fetus through the cervix into the birth canal. Dr. Carhart testified at trial as
follows:
?Dr. Carhart: ? ?The dismemberment occurs between the traction of ? my
instrument and the counter-traction of the internal os of the cervix
? .
?Counsel: ?So the dismemberment occurs after you pulled a part of the
fetus through the cervix, is that correct?
?Dr. Carhart: ?Exactly. Because you?re using?The cervix has two strictures or
two rings, the internal os and the external os ? that?s what?s actually doing
the dismembering? .
?Counsel: ?When we talked before or talked before about a D&E, that is
not?where there is not intention to do it intact, do you, in that situation,
dismember the fetus in utero first, then remove portions?
?Dr. Carhart: ?I don?t think so. ? I don?t know of any way that one
could go in and intentionally dismember the fetus in the uterus. ? It takes
something that restricts the motion of the fetus against what you?re doing
before you?re going to get dismemberment.? ? 11
F. Supp. 2d, at 1104.
Dr. Carhart?s specification of the location of fetal disarticulation is
consistent with other sources. See Medical and Surgical Abortion 135; App. in
Nos. 98?3245 and 98?3300 (CA8), p. 683, (testimony of Dr. Phillip Stubblefield)
(?Q: So you don?t actually dismember the fetus in utero, then take the pieces
out? A: No?).
5. The D&E procedure carries certain risks. The
use of instruments within the uterus creates a danger of accidental perforation
and damage to neighboring organs. Sharp fetal bone fragments create similar
dangers. And fetal tissue accidentally left behind can cause infection and
various other complications. See 11 F. Supp. 2d, at 1110; Gynecologic,
Obstetric, and Related Surgery 1045 (D. Nichols & D. Clarke-Pearson eds. 2d
ed. 2000); F. Cunningham et al., Williams Obstetrics 598 (20th ed. 1997).
Nonetheless studies show that the risks of mortality and complication that
accompany the D&E procedure between the 12th and 20th weeks of gestation are
significantly lower than those accompanying induced labor procedures (the next
safest midsecond trimester procedures). See Gynecologic, Obstetric, and Related
Surgery, supra, at 1046; AMA Report, App. 495, 496; Medical and Surgical
Abortion 139, 142; Lawson, 171 Am. J. Obstet. Gynecol., at 1368.
6. At trial, Dr. Carhart and Dr. Stubblefield
described a variation of the D&E procedure, which they referred to as an
?intact D&E.? See 11 F. Supp. 2d, at 1105, 1111. Like other
versions of the D&E technique, it begins with induced dilation of the
cervix. The procedure then involves removing the fetus from the uterus through
the cervix ?intact,? i.e., in one pass, rather than in several passes.
Ibid. It is used after 16 weeks at the earliest, as vacuum aspiration
becomes ineffective and the fetal skull becomes too large to pass through the
cervix. Id., at 1105. The intact D&E proceeds in one of two ways,
depending on the presentation of the fetus. If the fetus presents head first (a
vertex presentation), the doctor collapses the skull; and the doctor then
extracts the entire fetus through the cervix. If the fetus presents feet first
(a breech presentation), the doctor pulls the fetal body through the cervix,
collapses the skull, and extracts the fetus through the cervix. Ibid. The
breech extraction version of the intact D&E is also known commonly as
?dilation and extraction,? or D&X. Id., at 1112. In the late second
trimester, vertex, breech, and traverse/compound (sideways) presentations occur
in roughly similar proportions. Medical and Surgical Abortion 135; 11 F. Supp.
2d, at 1108.
7. The intact D&E procedure can also be found
described in certain obstetric and abortion clinical textbooks, where two
variations are recognized. The first, as just described, calls for the physician
to adapt his method for extracting the intact fetus depending on fetal
presentation. See Gynecologic, Obstetric, and Related Surgery, supra, at
1043; Medical and Surgical Abortion 136?137. This is the method used by Dr.
Carhart. See 11 F. Supp. 2d, at 1105. A slightly different version of the intact
D&E procedure, associated with Dr. Martin Haskell, calls for conversion to a
breech presentation in all cases. See Gynecologic, Obstetric, and Related
Surgery, supra, at 1043 (citing M. Haskell, Dilation and Extraction for
Late Second Trimester Abortion (1992), in 139 Cong. Rec. 8605 (1993)).
8. The American College of Obstetricians and
Gynecologists describes the D&X procedure in a manner corresponding to a
breech-conversion intact D&E, including the following steps:
?1. deliberate dilatation of the cervix, usually over
a sequence of days;
?2. instrumental conversion of the fetus to a
footling breech;
?3. breech extraction of the body excepting the head;
and
?4. partial evacuation of the intracranial contents
of a living fetus to effect vaginal delivery of a dead but otherwise intact
fetus.? American College of Obstetricians and Gynecologists Executive Board,
Statement on Intact Dilation and Extraction (Jan. 12, 1997) (hereinafter ACOG
Statement), App. 599?560.
Despite the technical differences we have just described, intact D&E and
D&X are sufficiently similar for us to use the terms interchangeably.
9. Dr. Carhart testified he attempts to use the
intact D&E procedure during weeks 16 to 20 because (1) it reduces the
dangers from sharp bone fragments passing through the cervix, (2) minimizes the
number of instrument passes needed for extraction and lessens the likelihood of
uterine perforations caused by those instruments, (3) reduces the likelihood of
leaving infection-causing fetal and placental tissue in the uterus, and (4)
could help to prevent potentially fatal absorption of fetal tissue into the
maternal circulation. See 11 F. Supp. 2d, at 1107. The District Court made no
findings about the D&X procedure?s overall safety. Id., at 1126,
n. 39. The District Court concluded, however, that ?the evidence is both
clear and convincing that Carhart?s D&X procedure is superior to, and safer
than, the ? other abortion procedures used during the relevant gestational
period in the 10 to 20 cases a year that present to Dr. Carhart.? Id., at
1126.
10. The materials presented at trial referred to the
potential benefits of the D&X procedure in circumstances involving nonviable
fetuses, such as fetuses with abnormal fluid accumulation in the brain
(hydrocephaly). See 11 F. Supp. 2d, at 1107 (quoting AMA Report, App. 492 (? ?Intact D&X may be preferred by some physicians,
particularly when the fetus has been diagnosed with hydrocephaly or other
anomalies incompatible with life outside the womb? ?)); see also Grimes, The Continuing Need for Late Abortions, 280 JAMA
747, 748 (Aug. 26, 1998) (D&X ?may be especially useful in the presence of
fetal anomalies, such as hydrocephalus,? because its reduction of the cranium
allows ?a smaller diameter to pass through the cervix, thus reducing risk of
cervical injury?). Others have emphasized its potential for women with prior
uterine scars, or for women for whom induction of labor would be particularly
dangerous. See Women?s Medical Professional Corp. v. Voinovich,
911 F. Supp. 2d 1051, 1067 (SD Ohio 1995); Evans v. Kelley,
977 F. Supp. 2d 1283, 1296 (ED Mich. 1997).
11. There are no reliable data on the number of
D&X abortions performed annually. Estimates have ranged between 640 and
5,000 per year. Compare Henshaw, Abortion Incidence and Services in the United
States, 1995?1996, 30 Family Planning Perspectives 263, 268 (1998), with Joint
Hearing on S. 6 and H. R. 929 before the Senate Committee on the
Judiciary and the Subcommittee on the Constitution of the House Committee on the
Judiciary, 105th Cong., 1st Sess., 46 (1997).
II
The question before us is whether Nebraska?s statute,
making criminal the performance of a ?partial birth abortion,? violates the
Federal Constitution, as interpreted in Planned Parenthood of Southeastern
Pa. v. Casey, 505 U.S.
833 (1992), and Roe v. Wade, 410 U.S.
113 (1973). We conclude that it does for at least two independent reasons.
First, the law lacks any exception ? ?for the
preservation of the ? health of the mother.? ?
Casey, 505 U.S., at 879 (joint opinion of O?Connor, Kennedy, and
Souter, JJ.). Second, it ?imposes an undue burden on a woman?s ability? to
choose a D&E abortion, thereby unduly burdening the right to choose abortion
itself. Id., at 874. We shall discuss each of these reasons in turn.
A
The Casey joint opinion reiterated what the
Court held in Roe; that ? ?subsequent to
viability, the State in promoting its interest in the potentiality of human life
may, if it chooses, regulate, and even proscribe, abortion except where it is
necessary, in appropriate medical judgment, for the preservation of the life or
health of the mother.? ? 505 U.S., at 879
(quoting Roe, supra, at 164?165) (emphasis added).
The fact that Nebraska?s law applies both pre- and
postviability aggravates the constitutional problem presented. The State?s
interest in regulating abortion previability is considerably weaker than
postviability. See Casey, supra, at 870. 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. See
Casey, supra, at 880 (majority opinion) (assuming need for health
exception previability); see also Harris v. McRae, 448 U.S.
297, 316 (1980).
The quoted standard also depends on the state
regulations ?promoting [the State?s] interest in the potentiality of human
life.? The Nebraska law, of course, does not directly further an interest ?in
the potentiality of human life? by saving the fetus in question from
destruction, as it regulates only a method of performing abortion.
Nebraska describes its interests differently. It says the law ? ?show[s] concern for the life of the unborn,? ? ?prevent[s] cruelty to partially born children,? and
?preserve[s] the integrity of the medical profession.? Brief for Petitioners 48.
But we cannot see how the interest-related differences could make any difference
to the question at hand, namely, the application of the ?health?
requirement.
Consequently, the governing standard requires an
exception ?where it is necessary, in appropriate medical judgment for the
preservation of the life or health of the mother,? Casey, supra,
at 879, for this Court has made clear that a State may promote but not endanger
a woman?s health when it regulates the methods of abortion. Thornburgh v.
American College of Obstetricians and Gynecologists, 476 U.S.
747, 768?769 (1986); Colautti v. Franklin, 439 U.S.
379, 400 (1979); Danforth, 428 U.S., at 76?79; Doe v.
Bolton, 410 U.S.
179, 197 (1973).
Justice Thomas says that the cases just cited limit this principle to
situations where the pregnancy itself creates a threat to health. See
post, at 33. He is wrong. 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. Our cases have repeatedly invalidated
statutes that in the process of regulating the methods of abortion,
imposed significant health risks. They make clear that a risk to a women?s
health is the same whether it happens to arise from regulating a particular
method of abortion, or from barring abortion entirely. Our holding does not go
beyond those cases, as ratified in Casey.
1
Nebraska responds that the law does not require a
health exception unless there is a need for such an exception. And here there is
no such need, it says. It argues that ?safe alternatives remain available? and
?a ban on partial-birth abortion/D&X would create no risk to the health of
women.? Brief for Petitioners 29, 40. The problem for Nebraska is that the
parties strongly contested this factual question in the trial court below; and
the findings and evidence support Dr. Carhart. The State fails to demonstrate
that banning D&X without a health exception may not create significant
health risks for women, because the record shows that significant medical
authority supports the proposition that in some circumstances, D&X would be
the safest procedure.
We shall reiterate in summary form the relevant
findings and evidence. On the basis of medical testimony the District Court
concluded that ?Carhart?s D&X procedure is ? safer tha[n] the D&E and
other abortion procedures used during the relevant gestational period in the 10
to 20 cases a year that present to Dr. Carhart.? 11 F. Supp. 2d, at 1126. It
found that the D&X procedure permits the fetus to pass through the cervix
with a minimum of instrumentation. Ibid. It thereby
?reduces operating time, blood loss and risk of infection; reduces
complications from bony fragments; reduces instrument-inflicted damage to the
uterus and cervix; prevents the most common causes of maternal mortality (DIC
and amniotic fluid embolus); and eliminates the possibility of ?horrible
complications? arising from retained fetal parts.? Ibid.
The District Court also noted that a select panel of
the American College of Obstetricians and Gynecologists concluded that D&X
? ?may be the best or most appropriate procedure in
a particular circumstance to save the life or preserve the health of a
woman.? ? Id., at 1105, n. 10 (quoting
ACOG Statement, App. 600?601) (but see an important qualification, infra,
at 14). With one exception, the federal trial courts that have heard expert
evidence on the matter have reached similar factual conclusions. See Rhode
Island Medical Soc. v. Whitehouse, 66 F. Supp. 2d 288, 314 (RI 1999);
A Choice for Women v. Butterworth, 54 F. Supp. 2d 1148, 1153, 1156
(SD Fla 1998); Causeway Medical Suite v. Foster, 43 F. Supp. 2d
604, 613?614 (ED La. 1999); Richmond Medical Center for Women v.
Gilmore, 11 F. Supp. 2d 795, 827, n. 40 (ED Va. 1998); Hope
Clinic v. Ryan, 995 F. Supp. 2d 847, 852 (ND Ill. 1998), vacated,
195 F.3d 857 (CA7 1999), cert. pending, No. 99?1152; Voinovich, 911
F. Supp. 2d, at 1069?1070; Kelley, 977 F. Supp. 2d, at 1296;
but see Planned Parenthood of Wis. v. Doyle, 44 F. Supp. 2d 975,
980 (WD Wis.) vacated, 195 F.3d 857 (CA7 1999).
2
Nebraska, along with supporting amici, replies
that these findings are irrelevant, wrong, or applicable only in a tiny number
of instances. It says (1) that the D&X procedure is ?little-used,? (2) by
only ?a handful of doctors.? Brief for Petitioners 32. It argues (3) that
D&E and labor induction are at all times ?safe alternative procedures.?
Id., at 36. It refers to the testimony of petitioners? medical expert,
who testified (4) that the ban would not increase a woman?s risk of several rare
abortion complications (disseminated intravascular coagulopathy and amniotic
fluid embolus), id., at 37; App. 642?644.
The Association of American Physicians and Surgeons
et al., amici supporting Nebraska, argue (5) that elements of the
D&X procedure may create special risks, including cervical incompetence
caused by overdilitation, injury caused by conversion of the fetal presentation,
and dangers arising from the ?blind? use of instrumentation to pierce the fetal
skull while lodged in the birth canal. See Brief for Association of American
Physicians and Surgeons et al. as Amici Curiae 21?23; see also
Sprang & Neerhof, Rationale for Banning Abortions Late in Pregnancy, 280
JAMA 744, 746 (Aug. 26, 1998).
Nebraska further emphasizes (6) that there are no
medical studies ?establishing the safety of the partial-birth abortion/D&X
procedure,? Brief for Petitioners 39, and ?no medical studies comparing the
safety of partial-birth abortion/D&X to other abortion procedures,?
ibid. It points to, id., at 35, (7) an American Medical
Association policy statement that ? ?there does not
appear to be any identified situation in which intact D&X is the only
appropriate procedure to induce abortion,? ? Late
Term Pregnancy Termination Techniques, AMA Policy H?5.982 (1997). And it points
out (8) that the American College of Obstetricians and Gynecologists qualified
its statement that D&X ?may be the best or most appropriate procedure,? by
adding that the panel ?could identify no circumstances under which [the D&X]
procedure ? would be the only option to save the life or preserve the health of
the woman.? App. 600?601.
3
We find these eight arguments insufficient to
demonstrate that Nebraska?s law needs no health exception. For one thing,
certain of the arguments are beside the point. The D&X procedure?s relative
rarity (argument (1)) is not highly relevant. The D&X is an infrequently
used abortion procedure; but the health exception question is whether protecting
women?s health requires an exception for those infrequent occasions. A rarely
used treatment might be necessary to treat a rarely occurring disease that could
strike anyone?the State cannot prohibit a person from obtaining treatment simply
by pointing out that most people do not need it. Nor can we know whether the
fact that only a ?handful? of doctors use the procedure (argument (2)) reflects
the comparative rarity of late second term abortions, the procedure?s recent
development, Gynecologic, Obstetric, and Related Surgery, at 1043, the
controversy surrounding it, or, as Nebraska suggests, the procedure?s lack of
utility.
For another thing, the record responds to Nebraska?s
(and amici?s) medically based arguments. 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. 11 F. Supp. 2d, at 1125?1126. In respect
to argument (4), the District Court simply relied on different expert
testimony?testimony stating that ? ?[a]nother
advantage of the Intact D&E is that it eliminates the risk of embolism of
cerebral tissue into the woman?s blood stream.? ?
Id., at 1124 (quoting Hearing on H. R. 1833 before the Senate
Committee on the Judiciary, 104th Cong., 1st Sess., 260 (1995) (statement of W.
Hern).
In response to amici?s argument (5), the
American College of Obstetricians and Gynecologists, in its own amici
brief, denies that D&X generally poses risks greater than the alternatives.
It says that the suggested alternative procedures involve similar or greater
risks of cervical and uterine injury, for ?D&E procedures, involve similar
amounts of dilitation? and ?of course childbirth involves even greater cervical
dilitation.? Brief for American College of Obstetricians and Gynecologists
et al. as Amici Curiae 23. The College points out that Dr. Carhart
does not reposition the fetus thereby avoiding any risks stemming from
conversion to breech presentation, and that, as compared with D&X, D&E
involves the same, if not greater, ?blind? use of sharp instruments in the
uterine cavity. Id., at 23?24.
We do not quarrel with Nebraska?s argument (6), for
Nebraska is right. There are no general medical studies documenting comparative
safety. Neither do we deny the import of the American Medical Association?s
statement (argument (7))?even though the State does omit the remainder of that
statement: ?The AMA recommends that the procedure not be used unless
alternative procedures pose materially greater risk to the woman.? Late Term
Pregnancy Termination Techniques, AMA Policy H?5.982 (emphasis added).
We cannot, however, read the American College of
Obstetricians and Gynecologists panel?s qualification (that it could not
?identify? a circumstance where D&X was the ?only? life- or
health-preserving option) as if, according to Nebraska?s argument (8), it denied
the potential health-related need for D&X. 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. D&X presents a variety of potential safety
advantages over other abortion procedures used during the same gestational
period. Compared to D&Es involving dismemberment, D&X involves less risk
of uterine perforation or cervical laceration because it requires the physician
to make fewer passes into the uterus with sharp instruments and reduces the
presence of sharp fetal bone fragments that can injure the uterus and cervix.
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. That D&X procedures usually take less time than other abortion
methods used at a comparable stage of pregnancy can also have health advantages.
The shorter the procedure, the less blood loss, trauma, and exposure to
anesthesia. The intuitive safety
advantages of intact D&E are supported
by clinical experience. Especially for women with particular health conditions,
there is medical evidence that D&X may be safer than available
alternatives.? Brief for American College of Obstetricians and Gynecologists et
al. as Amici Curiae 21?22 (citation and footnotes omitted).
4
The upshot is a District Court finding that D&X
significantly obviates health risks in certain circumstances, a highly plausible
record-based explanation of why that might be so, a division of opinion among
some medical experts over whether D&X is generally safer, and an absence of
controlled medical studies that would help answer these medical questions. Given
these medically related evidentiary circumstances, we believe the law requires a
health exception.
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. Medical treatments
and procedures are often considered appropriate (or inappropriate) in light of
estimated comparative health risks (and health benefits) in particular cases.
Neither can that phrase require unanimity of medical opinion. Doctors often
differ in their estimation of comparative health risks and appropriate
treatment. And Casey?s words ?appropriate medical judgment? must embody
the judicial need to tolerate responsible differences of medical
opinion?differences of a sort that the American Medical Association and American
College of Obstetricians and Gynecologists? statements together indicate are
present here.
For another thing, the division of medical opinion
about the matter at most means uncertainty, a factor that signals the presence
of risk, not its absence. That division here involves highly qualified
knowledgeable experts on both sides of the issue. Where a significant body of
medical opinion believes a procedure may bring with it greater safety for some
patients and explains the medical reasons supporting that view, we cannot say
that the presence of a different view by itself proves the contrary. Rather, the
uncertainty means a significant likelihood that those who believe that D&X
is a safer abortion method in certain circumstances may turn out to be right. If
so, then the absence of a health exception will place women at an unnecessary
risk of tragic health consequences. If they are wrong, the exception will simply
turn out to have been unnecessary.
In sum, Nebraska has not convinced us that a health
exception is ?never necessary to preserve the health of women.? Reply Brief for
Petitioners 4. Rather, a statute that altogether forbids D&X creates a
significant health risk. The statute consequently must contain a health
exception. This is not to say, as Justice Thomas and Justice Kennedy claim, that
a State is prohibited from proscribing an abortion procedure whenever a
particular physician deems the procedure preferable. By no means must a State
grant physicians ?unfettered discretion? in their selection of abortion methods.
Post, at 14 (Kennedy, J., dissenting). But where substantial medical
authority supports the proposition that banning a particular abortion procedure
could endanger women?s health, Casey requires the statute to include a
health exception when the procedure is ? ?necessary,
in appropriate medical judgment, for the preservation of the life or health of
the mother.? ? 505 U.S., at 879. Requiring such an
exception in this case is no departure from Casey, but simply a
straightforward application of its holding.
B
The Eighth Circuit found the Nebraska statute
unconstitutional because, in Casey?s words, it has the ?effect of placing
a substantial obstacle in the path of a woman seeking an abortion of a nonviable
fetus.? 505 U.S., at 877. It thereby places an ?undue burden? upon a
woman?s right to terminate her pregnancy before viability. Ibid. Nebraska
does not deny that the statute imposes an ?undue burden? if it applies to
the more commonly used D&E procedure as well as to D&X. And we agree
with the Eighth Circuit that it does so apply.
Our earlier discussion of the D&E procedure,
supra, at 5?7, shows that it falls within the statutory prohibition. The
statute forbids ?deliberately and intentionally delivering into the vagina a
living unborn child, or a substantial portion thereof, for the purpose of
performing a procedure that the person performing such procedure knows will kill
the unborn child.? Neb. Rev. Stat. Ann. ?28?326(9) (Supp. 1999). We do not
understand how one could distinguish, using this language, between D&E
(where a foot or arm is drawn through the cervix) and D&X (where the body up
to the head is drawn through the cervix). Evidence before the trial court makes
clear that D&E will often involve a physician pulling a ?substantial
portion? of a still living fetus, say, an arm or leg, into the vagina prior to
the death of the fetus. 11 F. Supp. 2d, at 1128; id., at 1128?1130.
Indeed D&E involves dismemberment that commonly occurs only when the fetus
meets resistance that restricts the motion of the fetus: ?The dismemberment
occurs between the traction of ? [the] instrument and the counter-traction of
the internal os of the cervix.? Id., at 1128. And these events often do
not occur until after a portion of a living fetus has been pulled into the
vagina. Id., at 1104; see also Medical and Surgical Abortion 135 (?During
the mid-second trimester, separation of the fetal corpus may occur when the
fetus is drawn into the lower uterine segment, where compression and traction
against the endocervix facilitates disarticulation?).
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 does not track the medical differences between D&E
and D&X?though it would have been a simple matter, for example, to provide
an exception for the performance of D&E and other abortion procedures.
E.g., Kan. Stat. Ann. ?65?6721(b)(1) (Supp. 1999). Nor does the statute
anywhere suggest that its application turns on whether a portion of the fetus?
body is drawn into the vagina as part of a process to extract an intact fetus
after collapsing the head as opposed to a process that would dismember the
fetus. Thus, the dissenters? argument that the law was generally intended to bar
D&X can be both correct and irrelevant. The relevant question is not
whether the legislature wanted to ban D&X; it is whether the law was
intended to apply only to D&X. The plain language covers both
procedures. A rereading of pages 5?10 of this opinion, as well as Justice
Thomas? dissent at pages 5?7, will make clear why we can find no difference, in
terms of this statute, between the D&X procedure as described and the
D&E procedure as it might be performed. (In particular, compare post,
at 6?7, (Thomas, J., dissenting), with post, at 7?10 (Thomas, J.,
dissenting)). Both procedures can involve the introduction of a ?substantial
portion? of a still living fetus, through the cervix, into the vagina?the very
feature of an abortion that leads Justice Thomas to characterize such a
procedure as involving ?partial birth.?
The Nebraska State Attorney General argues that the
statute does differentiate between the two procedures. He says that the
statutory words ?substantial portion? mean ?the child up to the head.? He
consequently denies the statute?s application where the physician introduces
into the birth canal a fetal arm or leg or anything less than the entire fetal
body. Brief for Petitioners 20. He argues further that we must defer to his
views about the meaning of the state statute. Id., at 12?13.
We cannot accept the Attorney General?s narrowing
interpretation of the Nebraska statute. This Court?s case law makes clear that
we are not to give the Attorney General?s interpretative views controlling
weight. For one thing, this Court normally follows lower federal-court
interpretations of state law. McMillian v. Monroe County, 520 U.S.
781, 786 (1997); Brockett v. Spokane Arcades, Inc., 472 U.S.
491, 500, n. 9 (1985). It ?rarely reviews a construction of state law
agreed upon by the two lower federal courts.? Virginia v. American
Booksellers Assn., Inc., 484 U.S.
383, 395 (1988). In this case, the two lower courts have both rejected the
Attorney General?s narrowing interpretation.
For another, our precedent warns against accepting as
?authoritative? an Attorney General?s interpretation of state law when ?the
Attorney General does not bind the state courts or local law enforcement
authorities.? Ibid.. Under Nebraska law, the Attorney General?s
interpretative views do not bind the state courts. State v.
Coffman, 213 Neb. 560, 561, 330 N. W. 2d 727, 728 (1983) (Attorney
General?s issued opinions, while entitled to ?substantial weight? and ?to be
respectfully considered,? are of ?no controlling authority?). Nor apparently do
they bind elected county attorneys, to whom Nebraska gives an independent
authority to initiate criminal prosecutions. Neb. Rev. Stat. Ann. ??23?1201(1),
28?328(5), 84?205(3) (1999 and Supp. 1999); cf. Crandon v. United
States, 494 U.S.
152, 177 (1990) (Scalia, J., concurring in judgment) (?[W]e have never
thought that the interpretation of those charged with prosecuting criminal
statutes is entitled to deference?).
Nor can we say that the lower courts used the wrong
legal standard in assessing the Attorney General?s interpretation. The Eighth
Circuit recognized its ?duty to give [the law] a construction ? that would avoid
constitutional doubts.? 192 F.3d, at 1150. It nonetheless concluded that the
Attorney General?s interpretation would ?twist the words of the law and give
them a meaning they cannot reasonably bear.? Ibid. The Eighth Circuit is
far from alone in rejecting such a narrowing interpretation. 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. All 10 of those courts (including the Eighth
Circuit) have found the language potentially applicable to other abortion
procedures. See Planned Parenthood of Greater Iowa, Inc. v.
Miller, 195 F.3d 386 (CA8 1999); Little Rock Family Planning
Services v. Jegley, 192 F.3d 794, 797?798 (CA8 1999); Hope
Clinic, 195 F.3d, at 865?871 (imposing precautionary injunction to prevent
application beyond D&X); id., at 885?889 (Posner, C. J.,
dissenting); Rhode Island Medical Soc., 66 F. Supp. 2d, at 309310;
Richmond Medical Center for Women, 55 F. Supp. 2d, at 471; A Choice
for Women, 54 F. Supp. 2d, at 1155; Causeway Medical Suite, 43
F. Supp. 2d, at 614?615; Planned Parenthood of Central N. J.
v. Verniero, 41 F. Supp. 2d 478, 503?504 (NJ 1998); Eubanks v.
Stengel, 28 F. Supp. 2d 1024, 1034?1035 (WD Ky. 1998); Planned
Parenthood of Southern Arizona, Inc. v. Woods, 982 F. Supp. 2d
1369, 1378 (Ariz. 1997); Kelley, 977 F. Supp. 2d, at 1317; but cf.
Richmond Medical Center v. Gilmore, 144 F.3d 326, 330?332 (CA4
1998) (Luttig, J., granting stay).
Regardless, even were we to grant the Attorney
General?s views ?substantial weight,? we still have to reject his
interpretation, for it conflicts with the statutory language discussed at page
21, above. 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. Rev. Stat. Ann. ?28?326(9). But these words cannot help the Attorney
General. They are subject to the statute?s further explicit statutory
definition, specifying that both terms include ?delivering into the vagina a
living unborn child, or a substantial portion thereof.? Ibid. When a
statute includes an explicit definition, we must follow that definition, even if
it varies from that term?s ordinary meaning. 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.); see also 2A N. Singer, Sutherland on
Statutes and Statutory Construction ?47.07, p. 152, and n. 10 (5th ed.
1992) (collecting cases). That is to say, the statute, read ?as a whole,?
post, at 20 (Thomas, J., dissenting), leads the reader to a definition.
That definition does not include the Attorney General?s restriction??the child
up to the head.? Its words, ?substantial portion,? indicate the contrary.
The Attorney General also points to the Nebraska
Legislature?s debates, where the term ?partial birth abortion? appeared
frequently. But those debates hurt his argument more than they help it.
Nebraska?s legislators focused directly upon the meaning of the word
?substantial.? One senator asked the bill?s sponsor, ?[Y]ou said that as small a
portion of the fetus as a foot would constitute a substantial portion in your
opinion. Is that correct?? The sponsoring senator replied, ?Yes, I believe
that?s correct.? App. 452?453; see also id., at 442?443 (same senator
explaining ?substantial? would ?indicate that more than a little bit has been
delivered into the vagina,? i.e., ?[e]nough that would allow for the
procedure to end up with the killing of the unborn child?); id., at 404
(rejecting amendment to limit law to D&X). 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. Post, at
24?25. That goal, however, exacerbates the problem.
The Attorney General, again echoed by the dissents,
further argues that the statute ?distinguishes between the overall ?abortion
procedure? itself and the separate ?procedure? used to kill the unborn child.?
Brief for Petitioners 16?18; post, at 13?14 (opinion of Thomas, J.), 21
(opinion of Kennedy, J.). Even assuming that the distinction would help the
Attorney General make the D&E/D&X distinction he seeks, however, we
cannot find any language in the statute that supports it. He wants us to read
?procedure? in the statute?s last sentence to mean ?separate procedure,?
i.e., the killing of the fetus, as opposed to a whole procedure,
i.e., a D&E or D&X abortion. But the critical word ?separate? is
missing. And the same word ?procedure,? in the same subsection and throughout
the statute, is used to refer to an entire abortion procedure. Neb. Rev. Stat.
Ann. ??28?326(9), 28?328(1)?(4) (Supp. 1999); cf. Gustafson v. Alloyd
Co., 513 U.S.
561, 570 (1995) (?[I]dentical words used in different parts of the same act
are intended to have the same meaning? (internal quotation marks omitted)).
The dissenters add that the statutory words ?partially delivers? can be read
to exclude D&E. Post, at 12?13 (opinion of Thomas, J.), 19?20
(opinion of Kennedy, J.). They say that introduction of, say, a limb or both
limbs into the vagina does not involve ?delivery.? But obstetric textbooks and
even dictionaries routinely use that term to describe any facilitated removal of
tissue from the uterus, not only the removal of an intact fetus. E.g.,
Obstetrics: Normal & Problem Pregnancies, at 388 (describing ?delivery? of
fetal membranes, placenta, and umbilical cord in the third stage of labor); B.
Maloy, Medical Dictionary for Lawyers 221 (3d ed. 1960) (?Also, the removal of a
[fetal] part such as the placenta?); 4 Oxford English Dictionary 422 (2d ed.
1989) (to ?deliver? means, inter alia, to ?disburden (a women) of the
foetus?); Webster?s Third New International Dictionary (1993) (?[D]elivery?
means ?the expulsion or extraction of a fetus and its membranes?). In any event,
the statute itself specifies that it applies both to delivering ?an
intact unborn child? or ?a substantial portion thereof.? The dissents
cannot explain how introduction of a substantial portion of a fetus into the
vagina pursuant to D&X is a ?delivery,? while introduction pursuant to
D&E is not.
We are aware that adopting the Attorney General?s
interpretation might avoid the constitutional problem discussed in this section.
But we are ?without power to adopt a narrowing construction of a state statute
unless such a construction is reasonable and readily apparent.? Boos v.
Barry, 485 U.S.
312, 330 (1988); Gooding v. Wilson, 405 U.S.
518, 520?521 (1972). For the reasons stated, it is not reasonable to replace
the term ?substantial portion? with the Attorney General?s phrase ?body up to
the head.? See Almendarez-Torres v. United States, 523 U.S.
224, 237?239 (1998) (statute must be ?genuinely susceptible? to two
interpretations).
Finally, the law does not require us to certify the
state law question to the Nebraska Supreme Court. Of course, we lack any
authoritative state-court construction. 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). The Attorney General did not seek a narrowing
interpretation from the Nebraska Supreme Court nor did he ask the federal courts
to certify the interpretive question. See Brief for State Appellants in Nos.
98?3245 and 98?3300 (CA8); cf. Arizonans for Official English v.
Arizona, 520 U.S.
43 (1997). Even if we were inclined to certify the question now, we cannot
do so. Certification of a question (or abstention) is appropriate only where the
statute is ?fairly susceptible? to a narrowing construction, see Houston
v. Hill, 482 U.S.
451, 468?471 (1987). We believe it is not. Moreover, the Nebraska Supreme
Court grants certification only if the certified question is ?determinative of
the cause.? Neb. Rev. Stat. ?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?). Here, it would not be determinative,
in light of the discussion in Part II?A.
In sum, 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. All those who perform abortion procedures using that method
must fear prosecution, conviction, and imprisonment. The result is an undue
burden upon a woman?s right to make an abortion decision. We must consequently
find the statute unconstitutional.
The judgment of the Court of Appeals is
Affirmed.