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.” Continue reading

Pro-Choice Friday News Rundown

  • notorious-rbgA force to be reckoned with for sure … RBG is definitely the woman of the hour these days. (Slate Double X)
  • Rabidly conservative, forced-birth advocate, and noted homophobe Cathi Herrod continues to wreak havoc on the state of Arizona with SB 1318. (Phoenix New Times)
  • And somehow, SB 1318 has been amended to be even more sucktacular. Ever heard of “reversing” a medication abortion? No one with medical knowledge has, but Repubs just don’t care! (RH Reality Check)
  • AZ state Rep. Victoria Steele bravely came forward as a survivor of sexual assault in order to fight SB 1318. To say we salute her and are grateful for her advocacy would be a huge understatement. (Tucson Weekly)
  • You’d think a bill helping to combat the evil that is human sex trafficking would be a cut-and-dry piece of legislation that both parties could get behind, right? Well, when Republicans are in charge of the legislation, you can bet anti-abortion tomfoolery will ensue. Goal? Make life harder for sex trafficking victims who get pregnant and prefer not to have their rapists’ babies. (HuffPo)
  • And Jon Stewart (rightfully) has some choice words for the Dems who supported the bill without reading it. (The Daily Show)
  • Oh look, another Republican weasel (Nebraska state Rep. Justin Harris) who wants to all but ensure that rape victims end up giving birth against their will. And not just any rape victims … underage ones. (RH Reality Check)
  • Whoa. Canada can teach us a thing or two about age-appropriate, comprehensive sex education! (HuffPo Canada)

Pro-Choice Friday News Rundown

  • silhouetteA judge in Nebraska’s Supreme Court ruled that a 16-year-old foster child was not “mature enough” to have an abortion. She is, apparently, mature enough to:
    • endure nine months of a potentially difficult pregnancy
    • endure childbirth (which is much more dangerous than abortion)
    • have a child to take care of financially and emotionally for something like … I don’t know, 20 years
    • be a teen parent totally alone in this world with no close relatives to support her and her child

    Welcome to the perfectly logical world of anti-choicers. (Jezebel)

  • Contraception: good for women and good for society. (Raw Story)
  • Expanding the availability of abortions — California, you’re doin’ it right. (NYT)
  • Not interfering with a woman’s legal right to abortion — Ohio, you’re doin’ it wrong. (NYT)
  • Although World Contraception Day was two weeks ago, it’s still important that you know these five things about birth control. (ThinkProgress)
  • Not so fast, Virginia, your abortion restrictions will not go unchallenged!! (WaPo)
  • A thoughtful mother wants safe, legal abortion access available for her daughter and everyone else’s. (The Daily Beast)
  • Another religious “institution” doing whatever possible to restrict their female employees’ access to abortion. (LA Times)
  • If you’re a GOP legislator, why would you focus on resolving the silly government shutdown when you can instead propose more legislation around abortion? (RH Reality Check)