Advancing Sexual and Reproductive Health and Rights
 
The Guttmacher Report on Public Policy
August 2000, Volume 3, Number 4
 
For the Record

High Court Strikes Down 'Partial-Birth' Ban, Upholds Protections for Clinic Clients

By a razor-thin majority of 5-4, the U.S. Supreme Court on June 28 declared unconstitutional Nebraska's law criminalizing so-called partial-birth abortion. The breadth of the ruling in Stenberg v. Carhart immediately calls into question the laws of most, if not all, of the other 30 states that have enacted "partial-birth" abortion bans, most of which have been struck down by lower courts over the last several years.

Writing for the majority, and agreeing with the large majority of lower courts that have examined the issue, Justice Stephen G. Breyer ruled that the Nebraska statute was invalid for two reasons: It was overly broad, and it did not include an exception to protect the woman's health.

The state argued that the law was meant to ban only the controversial and infrequently used "dilation and extraction" (D&X) procedure. However, Breyer said "its language makes clear that it also covers a much broader category of procedures," including the more commonly used "dilation and evacuation" (D&E) procedure, which is often performed during the second trimester of pregnancy well before the point of fetal viability.

Of equal if not greater significance in abortion jurisprudence was the majority's conclusion that the Nebraska law was unconstitutional because it lacked an exception to the ban to protect the woman's health. Since its landmark abortion ruling in Roe v. Wade in 1973, the Court has consistently said that states may not impose restrictions on abortion, even after fetal viability, that do not make allowances for procedures necessary to protect a woman's health. Because it "lacks the requisite exception" to permit abortions when the woman's health is endangered, the Nebraska law failed this test crucial test, Breyer declared. Citing a substantial body of medical opinion that the D&X procedure may sometimes be the safest option available to a physician in a particular case, Breyer said that a state "may promote but not endanger a woman's health when it regulates the methods of abortion."

Voting in the majority with Breyer were Justices Ruth Bader Ginsburg, Sandra Day O'Connor, David H. Souter and John Paul Stevens. Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas dissented.

The ruling was immediately hailed by supporters of abortion rights, many of whom noted that, in particular, the Court's rationale vindicates President William J. Clinton, who has twice vetoed measures passed by Congress precisely because they did not "allow women to protect themselves from serious threats to their health." According to Catherine Weiss of the American Civil Liberties Union, the Court's action signals to lawmakers at both the federal and the state levels that "doctors, not legislators, should be making medical decisions."

Despite the Court's sweeping language and reasoning, however, the day was one for both "champagne and shivers," according to Janet Benshoof of the Center for Reproductive Law and Policy, which represented the Nebraska physician who challenged that state's law. The shivers were occasioned, Benshoof said, by the narrow margin of the vote, only months before a presidential election that likely will determine the Court's posture on abortion-related matters for years to come. In addition, O'Connor, who provided the swing vote needed to invalidate the Nebraska law, indicated that if she were reviewing a law that were more narrowly drawn and included an exception for the health of the woman, "the question presented would be quite different than the one we face today."

Balancing Privacy and Protest

Also on June 28, the Court in Hill v. Colorado upheld a Colorado statute creating an eight-foot "bubble zone" around individuals near a health care facility. Specifically, the 1993 law makes it a crime, within 100 feet of a health care facility's entrance, for anyone to approach within eight feet of a clinic visitor, unless given permission to do so, in order to distribute leaflets, display signs or engage in oral protest, education or counseling. Rep. Diana DeGette (D-CO), who had written the Colorado law when she was in the state legislature, said that the law was written "to protect First Amendment rights [to free speech] as well as the patient's right to get into a clinic without being harassed." The Court, in an opinion written by Justice Stevens, agreed by a vote of 6-3.

According to Stevens, "the right of every person 'to be let alone' must be placed in the scales with the right of others to communicate." In attempting to balance these two important rights, the Court ultimately decided that the Colorado law "does not 'ban' any messages....It merely regulates the places where communications may occur" and that it "leaves ample room to communicate a message through speech." While it would not be permissible to intrude on an individual's right to free speech just because the speech may be offensive to some, Stevens concluded that this protection "does not always embrace offensive speech that is so intrusive that the unwilling audience cannot avoid it." Justices Scalia, Thomas and Kennedy dissented from the majority's decision.