Stenberg v. Carhart: “Partial Birth” (NOT)

Dr. Leroy Carhart

Dr. Leroy Carhart sued Nebraska for outlawing a specific late-term abortion procedure, and won.

Seventeen years ago today — June 28, 2000 — the Supreme Court struck down a Nebraska law banning “partial birth abortion,” which the letter of the law described 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.” *

Pause here a moment.

Is there any doubt in your mind that these words, quoted from the statute, were chosen by lawmakers to sound like infanticide, the killing of a baby between birth and one year? Are you horrified yet? Read on.

By a 5-4 ruling, the majority struck down the law in Stenberg v. Carhartsaying Nebraska’s ban was unconstitutionally vague and lacked a needed exception allowing the procedure to be used to protect the health of the pregnant mother. What? Huh? Infanticide is OK with the Supremes? How could that be? (Dissenting justices used the word infanticide 13 times in their dissents.)

Instead of outlawing abortion in one fell swoop, opponents are going after it one procedure at a time, stigmatizing lifesaving care in the process.

First, what banned procedure are we talking about? In 1992, Dr. Martin Haskell developed the “D&X” procedure, intact dilation and extraction (the medically appropriate name), calling it “a quick, surgical outpatient method” for late second-trimester and early third-trimester abortions. Outpatient is a key word here because the patient does not require an expensive, overnight hospital stay and, as we know, many hospitals do not allow any abortion procedures at all. Dr. Carhart, a surgeon and retired U.S. Air Force colonel, wanted to, and ultimately did, adopt this technique in his medical practice as the best and safest abortion option for some women.

As I read through all 107 pages of the court’s opinion, written by Justice Stephen Breyer and including three concurring opinions and four dissents, what struck me was one basic fact: The Nebraska law prohibited previability abortions** in which a fetus had a zero percent chance of ever being born — no matter what procedure medical professionals used. At that point in its development, the fetus could not survive outside the uterus. The Nebraska law that the Supreme Court struck down, then, had been a tool to demonize and criminalize physicians who decided the best interest of the woman was served by a procedure defined in the medical literature as “intact dilation and extraction,” and by anti-abortion politicians and agitators as “partial birth abortion.”

As usual, Justice Ruth Bader Ginsburg called out the Nebraska legislature’s true ban-all-abortion intentions in her concurring opinion:

I write separately only to stress that amidst all the emotional uproar caused by an abortion case, we should not lose sight of the character of Nebraska’s “partial birth abortion” law. As the Court observes, this law does not save any fetus from destruction, for it targets only “a method of performing abortion.”

So, what was the fuss? Here is a good background summary of the case.

My take? The fetus (remember, it’s never going to be born, no matter what), as soon as it was pulled a few inches out of the uterus into the birth canal reminded lawmakers of — and has been portrayed by illustrators as — a full-term baby being born. Let’s say that again. It reminded people of a tiny, full-term baby being born.

Let’s also remember that getting the fetus out of the uterus through the cervix is the objective of any abortion procedure, and in these later-term abortion cases, typically 16 to 24 weeks*** into a 38-to-40 week pregnancy, the fetus weighs less than a pound or two. So, if the beholder perceives a “baby” with all of its tiny but recognizable external parts destined for a full human life, the whole notion of “killing” it with the piercing and suction necessary to get a cranium that is 40 to 69 percent the size of a full-term fetus out through a dilated, but still way too small, cervical orifice seems horrific. But that same horrified beholder does not see the underdeveloped internal organs and inchoate brain and imagines, erroneously, that they are equivalent to those present in a full-term infant at birth. Nor does that horrified beholder worry about the safety of the full-fledged human patient lying on the table, the woman whom the D&X technique protects from damage to her uterus by perforation from inserted instruments, possible infection, and other complications from fetal tissue left within the uterus.

What we saw in the Nebraska law was the worst sort of political scare tactics designed to drive wedges between those who fight for women to make their own reproductive decisions, including a physician-informed decision about appropriate abortion procedures, and those who refuse to think critically about what the facts are, allowing themselves to be emotionally swayed by — let’s call them what they are — propagandists, fear mongers, and religious zealots.

What has happened since Stenberg v. Carhart? The Nebraska law was an early anti-abortion strategic move to eliminate all abortions by outlawing medical procedures, one by one. This ruling was not the end, but just the beginning of the “pro-forced-breeding” (I’ve decided to stop calling this bunch “pro-life”) gang’s strategy to force a woman to bear a child who she has lawfully determined should not (or could not) be born. I’ve met some of these women and their stories of having to terminate a wanted pregnancy are heartbreaking. Most of these abortion decisions are due to fatal abnormalities discovered late in the pregnancy, or are made to protect the mother’s life or health.Today we are witnessing state legislatures taking the next step to eliminate “D&E,” or dilation and evacuation, the most prevalent second-trimester procedure.

Three years after Stenberg, Congress passed the Partial-Birth Abortion Ban Act of 2003 and the Supreme Court upheld that law in 2007. Gonzales v. Carhart was decided in the face of opposition by the American College of Obstetricians and Gynecologists, which described the court’s decision as “shameful and incomprehensible,” ignorant of medical consensus, and chilling for the medical profession. The New England Journal of Medicine criticized the intrusion of politicians into medical decision-making, writing:

Until this opinion, the Court recognized the importance of not interfering with medical judgments made by physicians to protect a patient’s interest. For the first time, the Court permits congressional judgment to replace medical judgment.

Shame on Congress. And shame on us if we sit by and allow this political meddling in medicine to continue. Whenever you read or hear about legislative efforts to ban any abortion procedure, confront your representatives and remind them that legislators don’t do medicine. If your friends are among the “horrified” described above, send them to the medical journals.

* Said another way: “Intact dilation and extraction (D&X) … an abortion procedure in which the physician performing the abortion pulls through the dilated cervix the parts of the fetus (typically damaged or posing a threat to the woman’s life) that will fit, destroys the fetus, and completes the extraction by suction and reducing the size of the remaining fetal tissue.”

** Nebraska had another law that prohibited all post-viability abortions, those abortions in which it was conceivable that a fetus could survive outside the uterus with significant medical interventions.

*** Planned Parenthood health centers do not perform abortions after viability.