Stenberg v. Carhart
The Supreme Court struck down a Nebraska law banning a specific late-term abortion method known as "partial birth abortion," ruling that the law violated the Constitution because it had no exception for protecting a woman's health and because its wording also swept in the most common method of second-trimester abortion.
The 5-4 decision reaffirmed the framework from Planned Parenthood v. Casey, requiring any abortion regulation to include a health exception and not impose an undue burden on a woman's right to choose — while four dissenting justices argued the ruling stripped states of any real power to regulate even the most disputed abortion methods.
“Where a significant body of medical opinion believes a procedure may bring with it greater safety for some patients and explains the medical reasons supporting that view, we cannot say that the presence of a different view by itself proves the contrary.”
Explaining why divided medical opinion about the procedure's safety required a health exception.
How it got here: A federal trial court ruled the law unconstitutional; the Eighth Circuit affirmed; Nebraska's Attorney General asked the Supreme Court to review the case.
The Case in Depth
What happened
A Nebraska law made it a felony for doctors to perform "partial birth abortion," a procedure in which a fetus is partially delivered before being killed, unless necessary to save the mother's life. Dr. Leroy Carhart, a Nebraska physician who performed abortions including this procedure and the more common dilation-and-evacuation method, sued, arguing the law was unconstitutional because it lacked a health exception and could also be read to ban the common method.
The question before the Court
Could Nebraska ban a specific late-term abortion procedure without allowing any exception for cases where a doctor believed it was safer for the woman?
The Court's answer
No — the Court ruled that Nebraska could not ban this procedure without a health exception and as written. The law failed for two independent reasons: it lacked any exception allowing the procedure when a doctor believed it necessary to protect the woman's health, and its wording was broad enough to also outlaw the most commonly used method of second-trimester abortion, not just the rare procedure the state said it was targeting.
Under the framework from Planned Parenthood v. Casey, any law restricting abortion before viability is invalid if it places a substantial obstacle in a woman's path, and any restriction — before or after viability — must allow room for cases where the procedure is medically necessary for the woman's health. Because credible medical opinion supported the view that the banned method could sometimes be safer, and because the statute's own language covered the common method too, the Nebraska law failed both requirements.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
The ruling meant that the roughly 30 states that had passed similar "partial birth abortion" bans could not enforce them as written, since Nebraska's law-like many others-lacked a health exception and could be read to also outlaw the most common second-trimester abortion procedure. It fueled years of further legislative and legal battles over how specifically states must draft abortion-method bans.
What changes now
This is a final merits decision resolving the constitutional challenge to Nebraska's statute, leaving the lower courts' injunction against enforcement in place. Because similar "partial birth abortion" bans existed in roughly 30 states, this ruling signaled that many of those laws were vulnerable unless redrafted to include a health exception and to more precisely target only the specific procedure rather than sweeping in common abortion methods.
What this does not decide
The Court did not decide that states can never ban a specific abortion method — Justice O'Connor's concurrence noted that a narrower ban limited to the disputed procedure and including a health exception could be constitutional. The ruling addressed only Nebraska's particular statute as written.
Concurrences and dissents
Concurrence — Justice Stevens
Justice Stevens argued that the rhetoric about the procedure's brutality gave no reason to think it was more brutal than the equally gruesome D&E method Nebraska still allowed. He suggested that once the core holding of Roe is accepted, a state has no legitimate interest in requiring a doctor to use any method other than the one he or she reasonably believes best protects the woman, though he found the law invalid on narrower irrationality grounds too.
Concurrence — Justice O'Connor
Justice O'Connor agreed the statute was unconstitutional for lacking a health exception and for covering the common D&E procedure, but she emphasized that a narrower law limited only to the disputed method and including a health exception would be constitutional. She pointed to Kansas, Utah, and Montana statutes as models Nebraska could follow.
Concurrence — Justice Ginsburg
Justice Ginsburg stressed that Nebraska's law did not actually protect fetal life or maternal health, since the banned procedure and the equally available D&E method were similarly distressing. Quoting Judge Posner, she argued the law's only real purpose was hostility toward abortion rights generally, which made the burden it imposed undue.
Dissent — Justice Rehnquist
Chief Justice Rehnquist stated briefly that he still believed Casey was wrongly decided but, treating it as binding precedent, concluded that Justice Kennedy and Justice Thomas had correctly applied Casey's principles to uphold Nebraska's law, and he joined their dissents.
Dissent — Justice Scalia
“I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott.”Scalia's opening condemnation of the majority's ruling as a grave constitutional error.
Justice Scalia argued that the decision was not a misapplication of Casey but its logical, predictable result, showing that Casey's undue-burden test is an unworkable, standardless policy judgment rather than law. He contended the Court's ruling on a matter with no basis in constitutional text or tradition proves that Casey itself, not just its application, must be overruled.
Dissent — Justice Kennedy
Justice Kennedy argued the majority failed to give any real weight to Nebraska's legitimate interest in prohibiting a procedure closely resembling infanticide, and that requiring deference to a physician's own judgment about a health exception effectively let one doctor set state abortion policy. He also argued the statute could and should have been read to reach only the disputed procedure, not the common D&E method.
Dissent — Justice Thomas
Justice Thomas argued through detailed statutory analysis that the Nebraska law's text, read as a whole and in light of the common understanding of "partial birth abortion," applied only to the disputed procedure and not to ordinary D&E, so the majority erred at the outset. He further argued that the majority's health-exception requirement had no basis in Roe or Casey and effectively let any physician's preference override a state's considered judgment, eviscerating the undue-burden standard.
How the Court got there
The legal reasoning, step by step
- The Court applied the three-part framework from Planned Parenthood v. Casey: before viability a woman has a right to choose abortion, any law imposing an "undue burden" — a substantial obstacle — on that choice before viability is unconstitutional, and after viability states may restrict abortion only if they include an exception for preserving the mother's life or health.
- Because Nebraska's law applied both before and after viability, the Court reasoned that if even a postviability ban must include a health exception, a previability ban needed one at least as much, since the state's interest in regulating abortion is weaker before viability.
- The Court found that a significant body of medical opinion, including statements from the American College of Obstetricians and Gynecologists, supported the view that the banned procedure could sometimes be safer for a woman than alternative methods, and it held that this kind of genuine medical disagreement itself created the health risk that made a health exception constitutionally necessary.
- Turning to the statute's wording, the Court concluded that its ban on "delivering into the vagina" a fetus or "a substantial portion thereof" before killing it could not be limited, as the state argued, to the rare partial-birth procedure alone — the same language also described what happens during the far more common dilation-and-evacuation procedure.
- Because the law's plain text reached the standard method used in most second-trimester abortions, the Court held it placed a substantial obstacle in the path of women seeking previability abortions, making it independently unconstitutional as an undue burden apart from the missing health exception.
Doctrinal impact
Cases affected by this decision
Reaffirms Planned Parenthood of Southeastern Pa. v. Casey (505 U.S. 833)
The majority applied Casey's undue-burden and health-exception framework as controlling law to strike down the Nebraska statute.