Stenberg v. Carhart (530 U.S. 914, 2000)

Justice Breyer

delivered the opinion of the Court.

We again consider the right to an abortion. We understand the controversial nature of the problem. Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child; they recoil at the thought of a law that would permit it. Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering. Taking account of these virtually irreconcilable points of view, aware that constitutional law must govern a society whose different members sincerely hold directly opposing views, and considering the matter in light of the Constitution’s guarantees of fundamental individual liberty, this Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman’s right to choose. Roe v. Wade, 410 U. S. 113 (1973); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). We shall not revisit those legal principles. Rather, we apply them to the circumstances of this case.

Three established principles determine the issue before us. We shall set them forth in the language of the joint opinion in Casey. First, before "viability... the woman has a right to choose to terminate her pregnancy.” Id., at 870 (plurality opinion).

Second, "a law designed to further the State’s interest in fetal life which imposes an undue burden on the woman’s decision before fetal viability” is unconstitutional. Id., at 877. An "undue burden is ... shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Ibid.

Third, “ ‘subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’ ” Id., at 879 (quoting Roe v. Wade, supra, at 164-165).

We apply these principles to a Nebraska law banning “partial birth abortion.” The statute reads as follows:

“No partial birth abortion shall be performed in this state, unless such procedure is neeessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.” Neb. Rev. Stat. Ann. §28-328(1) (Supp. 1999).

The statute defines “partial birth abortion” 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.” § 28-326(9).

It further defines “partially delivers vaginally a living unborn child before killing the unborn child” to mean

“deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child.” Ibid.

The law classifies violation of the statute as a “Class III felony” carrying a prison term of up to 20 years, and a fine of up to $25,000. §§28-328(2), 28-105. It also provides for the automatic revocation of a doctor’s license to practice medicine in Nebraska. § 28-328(4).

We hold that this statute violates the Constitution.

HH