Justice Kennedy's Dissent Sheds Light on Carhart

Dateline 7/2/00

The dissent penned by Justice Anthony Kennedy in Stenberg v. Carhart, the ruling on Nebraska's partial-birth abortion law, sheds some interesting light on the case. Kennedy brings up points that haven't gotten much of an airing before the public.

Legitimate state interests

Kennedy begins by reminding us that there is more at stake here than LeRoy Carhart's abortion practice. He says:

Eroding respect for life?

Kennedy goes on to address the procedure Nebraska attempted to ban, which he stresses, "the Court is correct to describe as 'clinically cold or callous.'" He continues:

The majority views the procedures from the perspective of the abortionist, rather than from the perspective of a society shocked when confronted with a new method of ending human life. Words invoked by the majority, such as ... “instrumental disarticulation,” ..., may be accurate and are to some extent necessary... but for citizens who seek to know why laws on this subject have been enacted across the Nation, the words are insufficient.

I'll let Kennedy describe the D&E himself, as its impression was made on him by Carhart (line cites removed for readability):

[T]he D&E procedure requires the abortionist to use instruments to grasp a portion (such as a foot or hand) of a developed and living fetus and drag the grasped portion out of the uterus into the vagina. Dr. Carhart uses the traction created by the opening between the uterus and vagina to dismember the fetus, tearing the grasped portion away from the remainder of the body. The traction between the uterus and vagina is essential to the procedure because attempting to abort a fetus without using that traction is described by Dr. Carhart as “pulling the cat’s tail” or “drag[ging] a string across the floor, you’ll just keep dragging it. It’s not until something grabs the other end that you are going to develop traction.” The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn limb from limb. The fetus can be alive at the beginning of the dismemberment process and can survive for a time while its limbs are being torn off. .... Dr. Carhart has observed fetal heartbeat via ultrasound with “extensive parts of the fetus removed,” and testified that mere dismemberment of a limb does not always cause death because he knows of a physician who removed the arm of a fetus only to have the fetus go on to be born “as a living child with one arm.” At the conclusion of a D&E abortion no intact fetus remains. In Dr. Carhart’s words, the abortionist is left with “a tray full of pieces.”

The D&X can be used, as a general matter, after 19 weeks gestation because the fetus has become so developed that it may survive intact partial delivery from the uterus into the vagina. In the D&X, the abortionist initiates the woman’s natural delivery process by causing the cervix of the woman to be dilated, sometimes over a sequence of days. The fetus’ arms and legs are delivered outside the uterus while the fetus is alive; witnesses to the procedure report seeing the body of the fetus moving outside the woman’s body. At this point, the abortion procedure has the appearance of a live birth. As stated by one group of physicians, “[a]s the physician manually performs breech extraction of the body of a live fetus, excepting the head, she continues in the apparent role of an obstetrician delivering a child.” With only the head of the fetus remaining in utero, the abortionist tears open the skull. According to Dr. Martin Haskell, a leading proponent of the procedure, the appropriate instrument to be used at this stage of the abortion is a pair of scissors. Witnesses report observing the portion of the fetus outside the woman react to the skull penetration. The abortionist then inserts a suction tube and vacuums out the developing brain and other matter found within the skull. The process of making the size of the fetus’ head smaller is given the clinically neutral term “reduction procedure.” Brain death does not occur until after the skull invasion, and, according to Dr. Carhart, the heart of the fetus may continue to beat for minutes after the contents of the skull are vacuumed out. The abortionist next completes the delivery of a dead fetus, intact except for the damage to the head and the missing contents of the skull.

"Strict scrutiny" vs "undue burden"

Casey is premised on the States having an important constitutional role in defining their interests in the abortion debate. It is only with this principle in mind that Nebraska’s interests can be given proper weight. The State’s brief describes its interests as including concern for the life of the unborn and “for the partially-born,” in preserving the integrity of the medical profession, and in “erecting a barrier to infanticide.” A review of Casey demonstrates the legitimacy of these policies. The Court should say so.

Kennedy cites the opinion of O'Connor, himself, and Souter in Casey:

“Even in the earliest stages of pregnancy, the State may enact rules and regulations designed to encourage [a woman] to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term and that there are procedures and institutions to allow adoption of unwanted children as well as a certain degree of state assistance if the mother chooses to raise the child herself.”

The state's interest in abortion's impact on society

Kennedy also notes that states "also have an interest in forbidding medical procedures which, in the State’s reasonable determination, might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus. Abortion, Casey held, has consequences beyond the woman and her fetus." Abortion is not simply a matter between, as the slogan says, "a woman and her doctor." Kennedy reminds us of the Court's recognition that abortion is, “fraught with consequences for … the persons who perform and assist in the procedure [and for] society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life.”

The State, Kennedy notes, "may take measures to ensure the medical profession and its members are viewed as healers, sustained by a compassionate and rigorous ethic and cognizant of the dignity and value of human life, even life which cannot survive without the assistance of others."

D&X - pushing the envelope

In Carhart, Kennedy points out, the majority noted that D&E, like D&X, is still gruesome and dehumanizing. (A firm grasp of the obvious, this.) Stevens and Ginsburg, says Kennedy, " are forthright in declaring that the two procedures are indistinguishable and that Nebraska has acted both irrationally and without a proper purpose in enacting the law." But, he continues, "The issue is not whether members of the judiciary can see a difference between the two procedures. It is whether Nebraska can."

Kennedy points out that the Nebraska isn't alone in finding D&X partiulaly loathsome (cites removed):

Kennedy notes that even those who find all abortions deserve "the most severe moral condemnation, condemnation reserved for the most repulsive human conduct" find special and additional moral objections to D&X. Although Nebraska's hands are tied regarding banning abortion per se, the state still, Kennedy reminds us, has an interest in reminding citizens -- even abortionists and women about to elect abortion -- that abortion is ending a human life, a life worthy of respect. "The participants, Nebraska has determined, cannot be indifferent to the procedure used and must refrain from using the natural delivery process to kill the fetus. The differentiation between the procedures is itself a moral statement, serving to promote respect for human life; and if the woman and her physician in contemplating the moral consequences of the prohibited procedure conclude that grave moral consequences pertain to the permitted abortion process as well, the choice to elect or not to elect abortion is more informed; and the policy of promoting respect for life is advanced."

In a nutshell, Kennedy says that the Carhart decision usurps the State's legitimate interest in promoting respect for life. The ban, after all, would not come between a woman and her abortion. It would merely insist that an abortion remain an abortion, and birth remain birth. The state finds, and does have, a legitimate interest keeping the two processes separate, and in promoting respect for the baby as he or she emerges from the womb.

LeRoy Carhart and "maternal health"

Kennedy moves forward:

Demonstrating a further and basic misunderstanding of Casey, the Court holds the ban on the D&X procedure fails because it does not include an exception permitting an abortionist to perform a D&X whenever he believes it will best preserve the health of the woman. Casting aside the views of distinguished physicians and the statements of leading medical organizations, the Court awards each physician a veto power over the State’s judgment that the procedures should not be performed. Dr. Carhart has made the medical judgment to use the D&X procedure in every case, regardless of indications, after 15 weeks gestation. Requiring Nebraska to defer to Dr. Carhart’s judgment is no different than forbidding Nebraska from enacting a ban at all; for it is now Dr. Leroy Carhart who sets abortion policy for the State of Nebraska, not the legislature or the people. Casey does not give precedence to the views of a single physician or a group of physicians regarding the relative safety of a particular procedure.

Interference vs. legitimate regulation

Kennedy also found fault with the opinion that the Nebraska law interfered with medical judgment. Even with a total ban on D&X procedures, there are an abundance of other abortion procedures held forth as safe by practitioners. On the other hand, there is animated debate about the safety of the D&X procedure. Kennedy reminds us (cites removed):

No studies support the contention that the D&X abortion method is safer than other abortion methods. Leading proponents of the procedure acknowledge that the D&X has “disadvantages” versus other methods because it requires a high degree of surgical skill to pierce the skull with a sharp instrument in a blind procedure. Other doctors point to complications that may arise from the D&X. A leading physician, Frank Boehm, M. D., who has performed and supervised abortions as director of the Fetal Intensive Care Unit and the Maternal/Fetal Medicine Division at Vanderbilt University Hospital, has refused to support use of the D&X, both because no medical need for the procedure exists and because of ethical concerns. Dr. Boehm, a fellow of ACOG, supports abortion rights and has provided sworn testimony in opposition to previous state attempts to regulate abortion.

"The Court," Kennedy continues, "cannot conclude the D&X is part of standard medical practice." He notes that Carhart's witnesses have not themselves ever performed a D&X. "Litigation in other jurisdictions establishes that physicians do not adopt the D&X procedure as part of standard medical practice," Kennedy notes. "It is quite wrong for the Court to conclude, as it seems to have done here, that Dr. Carhart conforms his practice to the proper standard of care because he has incorporated the procedure into his practice. Neither Dr. Boehm nor Dr. Carhart’s lead expert, Dr. Stubblefield (the chairman of the Department of Obstetrics and Gynecology at Boston University School of Medicine and director of obstetrics and gynecology for the Boston Medical Center) has done so."

Kennedy also notes that "Carhart does not decide to use the D&X based on a conclusion that it is best for a particular woman." Carhart chooses the D&X method for reasons unrelated to maternal health or safety. The contention, therefore, that D&X must remain an option in order to further the interests of women's health or safety is invalid.

Carhart regresses to Akron and abandons Casey

Kennedy goes on to cite other cases in which the Court found that the States have a legitimate interest in regulating medical practice, such as United States v. Rutherford, which addressed regulatory processes for prescription drugs, and Jacobson V. Massachusetts, which upheld the State's right to require certain vaccinations.

Moving onward, Kennedy then addresses Justice O’Connor's statement that the law might be Constitutional if redrafted to allow D&X when “the procedure, in appropriate medical judgment, is necessary to preserve the health of the mother.” Kennedy points out that this is "meaningless." O'Connor, says Kennedy, "has joined an opinion which accepts that Dr. Carhart exercises 'appropriate medical judgment' in using the D&X for every patient in every procedure, regardless of indications, after 15 weeks’ gestation." "A ban which depends on the 'appropriate medical judgment' of Dr. Carhart is no ban at all," Kennedy notes. "He will be unaffected by any new legislation."

Willfully misconstrued

Next, Kennedy addresses the Court's finding that the D&X ban, as written in Nebraska, also would ban D&E abortions. Kennedy points out that "requiring a State to meet unattainable standards of statutory draftsmanship in order to have its voice heard on this grave and difficult subject is no different from foreclosing state participation altogether."

Kennedy quotes the legislation, which defines a partial birth or D&X 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.” The statute further clarifies that “partially delivers vaginally a living unborn child before killing the unborn child” means “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.”

Carhart claimed, and the Court accepted the claim, that this would cause confusion and potentially ban D&E abortions. But Kennedy cites experts who dismiss this idea:

• The Court of Appeals acknowledged the term “is commonly understood to refer to a particular procedure known as intact dilation and extraction (D&X).”
• Dr. Carhart’s own lead expert, Dr. Phillip Stubblefield, prefaced his description of the D&X procedure by describing it as the procedure “which, in the lay press, has been called a partial-birth abortion.”
• [T]he AMA has declared: “The ‘partial birth abortion’ legislation is by its very name aimed exclusively [at the D&X.] There is no other abortion procedure which could be confused with that description.”
• A commonsense understanding of the statute’s reference to “partial-birth abortion” demonstrates its intended reach and provides all citizens the fair warning required by the law.

Kennedy continues:

The statute’s intended scope is demonstrated by its requirement that the banned procedure include a partial “delivery” of the fetus into the vagina and the completion of a “delivery” at the end of the procedure. Only removal of an intact fetus can be described as a “delivery” of a fetus and only the D&X involves an intact fetus. In a D&E, portions of the fetus are pulled into the vagina with the intention of dismembering the fetus by using the traction at the opening between the uterus and vagina. This cannot be considered a delivery of a portion of a fetus. In Dr. Carhart’s own words, the D&E leaves the abortionist with a “tray full of pieces,” at the end of the procedure. Even if it could be argued, as the majority does, that dragging a portion of an intact fetus into the vagina as the first step of a D&E is a delivery of that portion of an intact fetus, the D&E still does not involve “completing the delivery” of an intact fetus. Whatever the statutory term “completing the delivery” of an unborn child means, it cannot mean, as the Court would have it, placing fetal remains on a tray. [T]he statute is “readily applied to the partial delivery of an intact child but hardly applicable to the delivery of dismembered body parts”.

In case the reader has, like the Court, a difficult time grasping this concept, Kennedy further claririfies:

The operation of Nebraska’s law is further defined by the requirement that the fetus be partially delivered into the vagina “before” the abortionist kills it. The partial delivery must be undertaken “for the purpose of performing a procedure that the person … knows will kill the unborn child.” The law is most naturally read to require the death of the fetus to take place in two steps: First the fetus must be partially delivered into the vagina and then the defendant must perform a death-causing procedure. In a D&E, forcing the fetus into the vagina (the pulling of extremities off the body in the process of extracting the body parts from the uterus into the vagina) is also the procedure that kills the fetus. In a D&X, the fetus is partially delivered into the vagina before a separate procedure (the so-called “reduction procedure”) is performed in order to kill the fetus.

Moving on:

The majority rejects this argument based on its conclusion that the word “procedure” must “refer to an entire abortion procedure” each time it is used. This interpretation makes no sense. It would require us to conclude that the Nebraska Legislature considered the “entire abortion procedure” to take place after the abortionist has already delivered into the vagina a living unborn child, or a substantial portion thereof. All medical authorities agree, however, that the entire abortion procedure begins several days before this stage, with the dilation of the cervix. The majority asks us, in effect, to replace the words “for the purpose of performing” with the words “in the course of performing” in the portion of §28—326(9) quoted in the preceding paragraph. The reference to “procedure” refers to the separate death-causing procedure that is unique to the D&X.

Kennedy further notes, "In light of the statutory text, the commonsense understanding must be that the statute covers only the D&X." The AMA, he notes, has said: “The partial birth abortion legislation is by its very name aimed exclusively at a procedure by which a living fetus is intentionally and deliberately given partial birth and delivered for the purpose of killing it. There is no other abortion procedure which could be confused with that description.”

Kennedy further notes that Casey holds that the Court should interpret a statute with generous leeway, not with an eye to finding some way, however unlikely it is to be interpreted that way by those enforcing it, in which it could concievably be construed to be Unconstitutional.

Kennedy also noted that, because the law was immediately enjoined by a lower court, the executive and judiciary branches of Nebraska's government were given no opportunity to interpret the law. The Court therefore erred by pre-empting the State's interest in intreperting its own law by making its own excessively convoluted interpretation of how it might be enforced.

Conclusion

Kennedy concludes:

Ignoring substantial medical and ethical opinion, the Court substitutes its own judgment for the judgment of Nebraska and some 30 other States and sweeps the law away. The Court’s holding stems from misunderstanding the record, misinterpretation of Casey, outright refusal to respect the law of a State, and statutory construction in conflict with settled rules. The decision nullifies a law expressing the will of the people of Nebraska that medical procedures must be governed by moral principles having their foundation in the intrinsic value of human life, including life of the unborn. Through their law the people of Nebraska were forthright in confronting an issue of immense moral consequence. T he State chose to forbid a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life, while the State still protected the woman’s autonomous right of choice as reaffirmed in Casey. The Court closes its eyes to these profound concerns.

From the decision, the reasoning, and the judgment, I dissent.

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