Stenberg v Carhart: A Divided US Supreme Court Debates Partial Birth Abortion
Published date | 01 July 2001 |
DOI | http://doi.org/10.1111/1468-2230.00342 |
Author | Liz Hefferman |
Date | 01 July 2001 |
Ultimately, it is suggested, the logic of the on-going constitutional change will
require the setting up a properly established constitutional court for the United
Kingdom, with properly identified, tenured and explicitly independent judges,
perhaps appointed after parliamentary hearings along the lines of the US Supreme
Court. The genie of constitutional reform is out of the bottle and has acquired its
own dynamic. It would appear we have not completed the task of writing the
constitution.
Stenberg vCarhart: A Divided US Supreme Court
Debates Partial Birth Abortion
Liz Heffernan
*
Introduction
During the course of its October 1999 term, the US Supreme Court handed down a
veritable potpourri of colour and controversy with rulings on subjects as diverse as
campaign finance, child visitation, discrimination on grounds of sexual orientation,
Miranda rights, nude dancing and school prayer.
1
It was the socially explosive
issue of abortion, however, that produced the Court’s most publicly contentious
and internally divisive step of the term. In Stenberg vCarhart,
2
a five-to-four
majority struck down Nebraska’s ban on partial birth abortion, a medical procedure
commonly used for abortions performed after the first trimester of pregnancy.
3
Dr LeRoy Carhart is a Nebraska physician who operates a family medical
practice where he performs abortions in a clinical setting. He filed suit in federal
district court on his own behalf and on behalf of his patients, challenging the
constitutionality of the Nebraska statute and seeking an injunction against its
enforcement. After a trial on the merits, involving expert testimony on both sides,
the district court held the statute unconstitutional,
4
a ruling that was affirmed on
appeal by the United States Court of Appeals for the Eighth Circuit.
5
* Law Clerk to Judge John F. Grady, United States District Court for the Northern District of Illinois.
The author writes in her personal capacity.
1 The members of the Court are Chief Justice William H. Rehnquist and Justices John Paul Stevens,
Sandra Day O’Connor, Antonin Scalia, Anthony M. Kennedy, David H. Souter, Clarence Thomas,
Ruth Bader Ginsburg and Stephen G. Breyer.
2 530 US ____, 120 S Ct 2597, 147 L Ed 2d 743 (2000). The case was argued on 25 April 2000 and
decided on 28 June 2000.
3 Justice Breyer delivered the opinion for the Court and was joined by Justices Stevens, O’Connor,
Souter and Ginsburg. Chief Justice Rehnquist and Justices Scalia, Kennedy and Thomas dissented. In
a second decision relating to abortion, Hill vColorado, 530 US ____ ,120 S Ct 2480, 147 L Ed 2d 597
(2000), the Court upheld a state law regulating protests conducted outside abortion clinics. Justices
Scalia, Kennedy and Thomas dissented.
4Stenberg vCarhart, 11 F Supp 2d 1099 (Neb. 1998).
5Stenberg vCarhart, 192 F 3d 1142 (8th Cir 1999). The same panel of the Eighth Circuit struck down
similar legislation in Arkansas and Iowa, respectively: Little Rock Family Planning Services, P A v
Jegley, 192 F 3d 794 (8th Cir 1999); Planned Parenthood of Greater Iowa, Inc v Miller, 195 F 3d 386
(8th Cir 1999).
The Modern Law Review [Vol. 64
618 ßThe Modern Law Review Limited 2001
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