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
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."
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
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
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.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
"Virginia Approves Tougher Abortion Laws," Agape Press, 2003-SEP-9,
Jerry Goldman et al., "Stenberg v. Carhart. 530 U.S. 914 (2000)." Text, abstract, etc. are online at:
Copyright © 2000 to 2007 by Ontario Consultants on Religious
Last updated: 2007-APR-18
Author: B.A. Robinson