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D & X / PBA procedures

U.S. Supreme Court ruling
on the Nebraska state law

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Timeline of the U.S. Supreme Court ruling:

Legal actions concerning Nebraska D&X legislation were:
bullet 1999-SEP: In the case of Stenberg v. Carhart, the law was declared unconstitutional in 1999-SEP by a federal court. This decision was appealed to the U.S. Supreme Court.
bullet 2000-JAN-16: The U.S. Supreme Court announced that it would hear an appeal in this case.
bullet 2000-APR-25: The judges of the Supreme Court heard oral arguments on the case.
bullet 2000-JUN-28: The court ruled on the legislation, declaring it unconstitutional. About 30 similar laws in other states were nullified by this decision.

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Details of the case:

Various sources claim that there were either 28 or 29 state laws that banned D&X procedures prior to this Supreme Court decision. The 1997 Nebraska law was the first to have been challenged in the U.S. Supreme Court. It criminalized all D&Xs on live fetuses, except those procedures needed to preserve the life of the woman. A D&X could not be done if it was only needed to avoid disabling injuries to the woman. As with most anti D&X laws, it was suspended by a court injunction shortly after the Nebraska governor signed it into law.

Paul Linton, a lawyer representing a pro-life group "Family First in Nebraska" predicted: "If the Nebraska law is upheld, that would indicate that probably most of these other statutes would be constitutional as well...If the Nebraska law is struck down, then most of these other laws presumably would be unconstitutional as well." The latter prediction appears to have been accurate.

On 2000-JUN-8, the U.S. Supreme Court declared the Nebraska law to be unconstitutional. Their vote was by a narrow 5:4 margin. Many other recent cases have also been decided by this margin. There are four justices of the Court who tend to make liberal rulings, and four that are rather consistently conservative.

An important observation is that Justice Sandra Day O'Connor voted with the majority.

In their year 2000 decision, the Supreme Court's majority report said that the state law was too vaguely worded. It might have been used to prosecute abortion providers who use a similar method during the second trimester of a pregnancy. Associate Justice Stephen G. Breyer wrote: "All those who perform abortion procedures using that [similar] 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 wording of the laws in 29 or 30 other states is essentially identical to the Nebraska legislation. The Supreme Court ruling on the Nebraska law is generally accepted as declaring them all unconstitutional. Reworded laws that clearly banned D&X abortions only late in the third trimester would probably obtain majority support on the Supreme Court and would thus be constitutional. Such legislation may be introduced in some state legislatures.

On 2000-JUN-28, Cardinal Francis George, Archbishop of Chicago, issued a statement saying: "Today's Supreme Court decision is a victory for barbarism. It pits the Court and the Constitution itself against the legal protection of children who are not wanted...The primary duty of any government is to protect the weak from the powerful. The Supreme Court has betrayed this duty, and with it, the very foundation of our Constitution."

Also in late-June, Archbishop Charles Chaput of Denver wrote that "...this is not a moment for sanitized or 'diplomatic' language. What the Court has done is open the gates to a uniquely savage and repugnant form of violence against the young. This is a disastrous ruling. It will have far-reaching and unintended consequences -- consequences we will look back on and bitterly regret...From today forward the task remains the same for believers, only more urgent: to use every moral and legal means at our disposal to bring our country back to its senses and restore the sanctity of human life.

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State laws passed since the Supreme Court decision:

On 2002-MAR-7, the Virginia legislature passed a bill that would prohibit allow a woman to get a D&X abortion either if her life is in danger or if it is needed to prevent "substantial or irreversible impairment of a major bodily function." It was vetoed by the governor who suggested that it was clearly unconstitutional on several grounds. More details.

The 2002/2003 winter session of the Virginia general assembly passed a law which was signed into law and become effective in 2003-JUL. It prohibits D&X procedures, misnaming it "partial-birth infanticide." The Virginia law did not include a health exception and so is clearly unconstitutional as well. 1

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Will the court decision remain in force?

During 2005, President George W. Bush nominated John G. Roberts, a strict constructionist, conservative jurist to be the chief justice of the Supreme Court. He replaced the late Chief Justice William Rhenquist who had a similar judicial philosophy to Roberts. President Bush also nominated Samuel Alito to replace Justice Sandra Day O'Connor, who had announced her retirement. She had a track record of being a swing vote, sometimes voting with the conservatives on the court and sometimes voting with the liberals. Alito was sworn in on 2006-JAN-31 and is appears to be a strict constructionist, conservative jurist. The net result is to swing the Supreme Court sharply to the right. This will determining the future slant of the Supreme Court for decades to come.

During 2006, the Supreme Court revisited the federal anti D&X law passed in 2003. With the new appointees, and the sharp swing in the right, the Justices ruled on 2007-APR-18 that the federal law was constitutional, even though it contains the same defects as the state law. The vote was the usual 5 to 4.

This decision will probably trigger new lawsuits at the state level in an attempt to reverse the Supreme Court's year 2000 ruling.

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The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. "Virginia Approves Tougher Abortion Laws," Agape Press, 2003-SEP-9, at:
  2. Jerry Goldman et al., "Stenberg v. Carhart. 530 U.S. 914 (2000)."  Text, abstract, etc. are  online at:

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Copyright 2000 to 2007 by Ontario Consultants on Religious Tolerance.
Last updated: 2007-APR-18

Author: B.A. Robinson

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