Justice Breyer |

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. Carhart, saying 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.” Continue reading →

Sotomayor, Ginsburg, and Kagan: Sitting Supreme Court Justices

“… [T]he difference of having three women on the Supreme Court. I think that all the justices obviously are important in that court, but it really makes a difference to begin to have a court that more reflects the diversity of this country, and I think women who can really speak from a woman’s point of view, just how impactful these kind of laws that specifically target women and women’s access to health care, how impactful they are. And I was really grateful to have the women’s voices in the room.”

Cecile Richards, Planned Parenthood president, March 2, 2016, commenting on that day’s oral arguments in Whole Woman’s Health v. Hellerstedt

Me, too, Cecile.

Courting women. Let’s snatch that phrase from the parlor in a Jane Austen novel and lob it into the Supreme Court chambers, making courting not the passive “pick me” word of yesteryear, but an assertive “empower me” word of today.

Power, judiciously applied, is what Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan demonstrated during oral arguments in Whole Woman’s Health v. Hellerstedt. They formed a tag team of relentless logic, assertiveness, and deep understanding of the predicament of women in Texas needing timely, accessible abortion care — and not getting it. The court was probing two provisions of Texas HB2, the law that requires that (1) physicians performing abortions must have admitting privileges at a hospital near their clinics and (2) all abortions must be performed in ambulatory surgical centers (ASCs, mini-hospitals). (See SCOTUSblog “Round Up” and Roe v. Wade: Texas Then and Now for additional background on this important case.)

Justices explored the elements that create an unconstitutional “undue burden” for women seeking an abortion by questioning attorney Stephanie Toti, representing Whole Woman’s Health, and Solicitor General Scott Keller, representing Texas. Here are some highlights: Continue reading →

Tag Archives: Justice Breyer

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

Courting Women