STENBERG v. CARHARTOpinion of the Court
- Syllabus [HTML] [PDF]
- Opinion, Breyer [HTML] [PDF]
- Concurrence, Stevens [HTML] [PDF]
- Concurrence, OConnor [HTML] [PDF]
- Concurrence, Ginsburg [HTML] [PDF]
- Dissent, Rehnquist [HTML] [PDF]
- Dissent, Scalia [HTML] [PDF]
- Dissent, Kennedy [HTML] [PDF]
- Dissent, Thomas [HTML] [PDF]
STENBERG, ATTORNEY GENERAL OF NEBRASKA, et al. <font i="1">v. CARHART
certiorari to the united states court of appeals for the eighth circuit
The Constitution offers basic protection to a womans right to choose whether to have an abortion. Roe v. Wade, 410 U. S. 113; Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833. Before fetal viability, a woman has a right to terminate her pregnancy, id. , at 870 (joint opinion), and a state law is unconstitutional if it imposes on the womans decision an undue burden, i.e. , if it has the purpose or effect of placing a substantial obstacle in the womans path, id. , at 877. Postviability, the State, in promoting its interest in the potentiality of human life, may regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the [mothers] life or health. E.g., id. , at 879. The Nebraska law at issue prohibits any partial birth abortion unless that procedure is necessary to save the mothers life. It defines partial birth abortion as a procedure in which the doctor partially delivers vaginally a living unborn child before killing the . . . child, and defines the latter phrase to mean intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the [abortionist] knows will kill the … child and does kill the … child. Violation of the law is a felony, and it provides for the automatic revocation of a convicted doctors state license to practice medicine. Respondent Carhart, a Nebraska physician who performs abortions in a clinical setting, brought this suit seeking a declaration that the statute violates the Federal Constitution. The District Court held the statute unconstitutional. The Eighth Circuit affirmed.
Held:<unicode value="8194"> Nebraskas statute criminalizing the performance of partial birth abortion[s] violates the Federal Constitution, as interpreted in Casey and Roe. Pp. 327.
(a) Because the statute seeks to ban one abortion method, the Court discusses several different abortion procedures, as described in the evidence below and the medical literature. During a pregnancys second trimester (12 to 24 weeks), the most common abortion procedure is dilation and evacuation (D&E), which involves dilation of the cervix, removal of at least some fetal tissue using nonvacuum surgical instruments, and (after the 15th week) the potential need for instrumental dismemberment of the fetus or the collapse of fetal parts to facilitate evacuation from the uterus. When such dismemberment is necessary, it typically occurs as the doctor pulls a portion of the fetus through the cervix into the birth canal. The risks of mortality and complication that accompany D&E are significantly lower than those accompanying induced labor procedures (the next safest mid-second-trimester procedures). A variation of D&E, known as intact D&E, is used after 16 weeks. It involves removing the fetus from the uterus through the cervix intact, i.e. , in one pass rather than several passes. The intact D&E proceeds in one of two ways, depending on whether the fetus presents head first or feet first. The feet-first method is known as dilation and extraction (D&X). D&X is ordinarily associated with the term partial birth abortion. The District Court concluded that clear and convincing evidence established that Carharts D&X procedure is superior to, and safer than, the D&E and other abortion procedures used during the relevant gestational period in the 10 to 20 cases a year that present to Carhart. Moreover, materials presented at trial emphasize the potential benefits of the D&X procedure in certain cases. Pp. 310.
(b) The Nebraska statute lacks the requisite exception for the preservation of the … health of the mother. Casey, supra , at 879 (joint opinion). The State may promote but not endanger a womans health when it regulates the methods of abortion. Pp. 1119.
(i) The Court rejects Nebraskas contention that there is no need for a health exception here because safe alternatives remain available and a ban on partial-birth abortion/D&X would create no risk to womens health. The parties strongly contested this factual question in the District Court; and the findings and evidence support Dr. Carhart. Pp. 1314.
(ii) Nebraska and its supporting amici respond with eight arguments as to why the District Courts findings are irrelevant, wrong, or applicable only in a tiny number of instances. Pp. 1415.
(iii) The eight arguments are insufficient to demonstrate that Nebraskas law needs no health exception. For one thing, certain of the arguments are beside the point. The D&X procedures relative rarity (argument (1)) is not highly relevant. The State cannot prohibit a person from obtaining treatment simply by pointing out that most people do not need it. And the fact that only a handful of doctors use the procedure (argument (2)) may reflect the comparative rarity of late second term abortions, the procedures recent development, the controversy surrounding it, or, as Nebraska suggests, the procedures lack of utility. For another thing, the record responds to Nebraskas (and amicis ) medically based arguments. As to argument (3), the District Court agreed that alternatives, such as D&E and induced labor are safe, but found that the D&X method was safer in the circumstances used by Carhart. As to argument (4)that testimony showed that the statutory ban would not increase a womans risk of several rare abortion complicationsthe District Court simply relied on different expert testimony than the State. Argument (5)the assertion of amici Association of American Physicians and Surgeons et al. that elements of the D&X procedure may create special risksis disputed by Carharts amici , including the American College of Obstetricians and Gynecologists (ACOG), which claims that the suggested alternative procedures involve similar or greater risks of cervical and uterine injury. Nebraskas argument (6) is rightthere are no general medical studies documenting the comparative safety of the various abortion procedures. Nor does the Court deny the import of the American Medical Associations (AMA) recommendation (argument (7)) that intact D&X not be used unless alternative procedures pose materially greater risk to the woman. However, the Court cannot read ACOGs qualification that it could not identify a circumstance where D&X was the only life- or health-preserving option as if, according to Nebraskas argument (8), it denied the potential health-related need for D&X. ACOG has also asserted that D&X can be the most appropriate abortion procedure and presents a variety of potential safety advantages. Pp. 1518.
(iv) The upshot is a District Court finding that D&X obviates health risks in certain circumstances, a highly plausible record-based explanation of why that might be so, a division of medical opinion over whether D&X is generally safer, and an absence of controlled medical studies that would help answer these medical questions. Given these circumstances, the Court believes the law requires a health exception. For one thing, the word necessary in Casey s phrase necessary, in appropriate medical judgment, for the … health of the mother, 505 U. S., at 879, cannot refer to absolute proof or require unanimity of medical opinion. Doctors often differ in their estimation of comparative health risks and appropriate treatment. And Casey s words appropriate medical judgment must embody the judicial need to tolerate responsible differences of medical opinion. For another thing, the division of medical opinion signals uncertainty. If those who believe that D&X is a safer abortion method in certain circumstances turn out to be right, the absence of a health exception will place women at an unnecessary risk. If they are wrong, the exception will simply turn out to have been unnecessary. Pp. 1819.
(c) The Nebraska statute imposes an undue burden on a womans ability to choose an abortion. See Casey, supra , at 874 (joint opinion). Pp. 2027.
(i) Nebraska does not deny that the statute imposes an undue burden if it applies to the more commonly used D&E procedure as well as to D&X. This Court agrees with the Eighth Circuit that the D&E procedure falls within the statutory prohibition of intentionally delivering into the vagina a living fetus, or a substantial portion thereof, for the purpose of performing a procedure that the perpetrator knows will kill the fetus. Because the evidence makes clear that D&E will often involve a physician pulling an arm, leg, or other substantial portion of a still living fetus into the vagina prior to the fetus death, the statutory terms do not to distinguish between D&X and D&E. The statutes language does not track the medical differences between D&E and D&X, but covers both. Using the laws statutory terms, it is impossible to distinguish between D&E (where a foot or arm is drawn through the cervix) and D&X (where the body up to the head is drawn through the cervix). Both procedures can involve the introduction of a substantial portion of a still living fetus, through the cervix, into the vaginathe very feature of an abortion that leads to characterizing such a procedure as involving partial birth. Pp. 2021.
(ii) The Court rejects the Nebraska Attorney Generals arguments that the state law does differentiate between the two procedures i.e., that the words substantial portion mean the child up to the head, such that the law is inapplicable where the physician introduces into the birth canal anything less than the entire fetal bodyand that the Court must defer to his views. The Courts case law makes clear that the Attorney Generals narrowing interpretation cannot be given controlling weight. For one thing, this Court normally follows lower federal-court interpretations of state law, e.g., McMillian v. Monroe County, 520 U. S. 781, and rarely reviews such an interpretation that is agreed upon by the two lower federal courts. Virginia v. American Booksellers Assn., Inc., 484 U. S. 383. Here, the two lower courts both rejected the Attorney Generals narrowing interpretation. For another, the Courts precedent warns against accepting as authoritative an Attorney Generals interpretation of state law where, as here, that interpretation does not bind the state courts or local law enforcement. In Nebraska, elected county attorneys have independent authority to initiate criminal prosecutions. Some present prosecutors (and future Attorneys General) might use the law at issue to pursue physicians who use D&E procedures. Nor can it be said that the lower courts used the wrong legal standard in assessing the Attorney Generals interpretation. The Eighth Circuit recognized its duty to give the law a construction that would avoid constitutional doubt, but nonetheless concluded that the Attorney Generals interpretation would twist the laws words, giving them a meaning they cannot reasonably bear. The Eighth Circuit is far from alone in rejecting such a narrowing interpretation, since 11 of the 12 federal courts that have interpreted on the merits the model statutory language on which the Nebraska law is based have found the language potentially applicable to abortion procedures other than D&X. Regardless, were the Court to grant the Attorney Generals views substantial weight, it would still have to reject his interpretation, for it conflicts with the statutory language. The statutory words, substantial portion, indicate that the statute does not include the Attorney Generals restrictionthe child up to the head. The Nebraska Legislatures debates hurt the Attorney Generals argument more than they help it, indicating that as small a portion of the fetus as a foot would constitute a substantial portion. Even assuming that the distinction the Attorney General seeks to draw between the overall abortion procedure itself and the separate procedure used to kill an unborn child would help him make the D&E/D&X distinction he seeks, there is no language in the statute that supports it. Although adopting his interpretation might avoid the constitutional problem discussed above, the Court lacks power do so where, as here, the narrowing construction is not reasonable and readily apparent. E.g., Boos v. Barry, 485 U. S. 312. Finally, the Court has never held that a federal litigant must await a state-court construction or the development of an established practice before bringing the federal suit. City of Lakewood v. Plain Dealer Publishing Co., 486 U. S. 750, n. 11. But any authoritative state-court construction is lacking here. The Attorney General neither sought a narrowing interpretation from the Nebraska Supreme Court nor asked the federal courts to certify the interpretive question. Cf. Arizonans for Official English v. Arizona, 520 U. S. 43. Even were the Court inclined to certify the question now, it could not do so because certification is appropriate only where the statute is fairly susceptible to a narrowing construction, see Houston v. Hill, 482 U. S. 451, as is not the case here. Moreover, the Nebraska Supreme Court grants certification only if the certified question is determinative of the cause, see id., at 471, as it would not be here. In sum, because all those who perform abortion procedures using the D&E method must fear prosecution, conviction, and imprisonment, the Nebraska law imposes an undue burden upon a womans right to make an abortion decision. Pp. 2127.
192 F. 3d 1142, affirmed.
Breyer, J., delivered the opinion of the Court, in which Stevens, OConnor, Souter, and Ginsburg, JJ., joined. Stevens, J., filed a concurring opinion, in which Ginsburg, J., joined. OConnor, J., filed a concurring opinion. Ginsburg, J., filed a concurring opinion, in which Stevens, J., joined. Rehnquist, C. J., and Scalia, J., filed dissenting opinions. Kennedy, J., filed a dissenting opinion, in which Rehnquist, C. J., joined. Thomas, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia, J., joined.
DON STENBERG, ATTORNEY GENERAL OF NEBRASKA,
on writ of certiorari to the united states court of appeals for the eighth circuit
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 Constitutions 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 womans 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 (joint opinion of OConnor, Kennedy, and Souter, JJ. ).
Second, a law designed to further the States interest in fetal life which imposes an undue burden on the womans 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 164165).
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 necessary 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. §28328(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. §28326(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. §§28328(2), 28105. It also provides for the automatic revocation of a doctors license to practice medicine in Nebraska. §28328(4).
We hold that this statute violates the Constitution.
Dr. Leroy Carhart is a Nebraska physician who performs abortions in a clinical setting. He brought this lawsuit in Federal District Court seeking a declaration that the Nebraska statute violates the Federal Constitution, and asking for an injunction forbidding its enforcement. After a trial on the merits, during which both sides presented several expert witnesses, the District Court held the statute unconstitutional. 11 F. Supp. 2d 1099 (Neb. 1998). On appeal, the Eighth Circuit affirmed. 192 F. 3d 1142 (1999); cf. Hope Clinic v. Ryan , 195 F. 3d 857 (CA7 1999) (en banc) (considering a similar statute, but reaching a different legal conclusion). We granted certiorari to consider the matter.
Because Nebraska law seeks to ban one method of aborting a pregnancy, we must describe and then discuss several different abortion procedures. Considering the fact that those procedures seek to terminate a potential human life, our discussion may seem clinically cold or callous to some, perhaps horrifying to others. There is no alternative way, however, to acquaint the reader with the technical distinctions among different abortion methods and related factual matters, upon which the outcome of this case depends. For that reason, drawing upon the findings of the trial court, underlying testimony, and related medical texts, we shall describe the relevant methods of performing abortions in technical detail.
The evidence before the trial court, as supported or supplemented in the literature, indicates the following:
1. About 90% of all abortions performed in the United States take place during the first trimester of pregnancy, before 12 weeks of gestational age. Centers for Disease Control and Prevention, Abortion SurveillanceUnited States, 1996, p. 41 (July 30, 1999) (hereinafter Abortion Surveillance). During the first trimester, the predominant abortion method is vacuum aspiration, which involves insertion of a vacuum tube (cannula) into the uterus to evacuate the contents. Such an abortion is typically performed on an outpatient basis under local anesthesia. 11 F. Supp. 2d, at 1102; Obstetrics: Normal & Problem Pregnancies 12531254 (S. Gabbe, J. Niebyl, & J. Simpson eds. 3d ed. 1996). Vacuum aspiration is considered particularly safe. The procedures mortality rates for first trimester abortion are, for example, 5 to 10 times lower than those associated with carrying the fetus to term. Complication rates are also low. Id. , at 1251; Lawson et al., Abortion Mortality, United States, 1972 through 1987, 171 Am. J. Obstet. Gynecol. 1365, 1368 (1994); M. Paul, et al., A Clinicians Guide to Medical and Surgical Abortion 108109 (1999) (hereinafter Medical and Surgical Abortion). As the fetus grows in size, however, the vacuum aspiration method becomes increasingly difficult to use. 11 F. Supp. 2d, at 11021103; Obstetrics: Normal & Problem Pregnancies, supra , at 1268.
2. Approximately 10% of all abortions are performed during the second trimester of pregnancy (12 to 24 weeks). Abortion Surveillance 41. In the early 1970s, inducing labor through the injection of saline into the uterus was the predominant method of second trimester abortion. Id. , at 8; Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 76 (1976) . Today, however, the medical profession has switched from medical induction of labor to surgical procedures for most second trimester abortions. The most commonly used procedure is called dilation and evacuation (D&E). That procedure (together with a modified form of vacuum aspiration used in the early second trimester) accounts for about 95% of all abortions performed from 12 to 20 weeks of gestational age. Abortion Surveillance 41.
3. D&E refers generically to transcervical procedures performed at 13 weeks gestation or later. American Medical Association, Report of Board of Trustees on Late-Term Abortion, App. 490 (hereinafter AMA Report). The AMA Report, adopted by the District Court, describes the process as follows.
Between 13 and 15 weeks of gestation:
D&E is similar to vacuum aspiration except that the cervix must be dilated more widely because surgical instruments are used to remove larger pieces of tissue. Osmotic dilators are usually used. Intravenous fluids and an analgesic or sedative may be administered. A local anesthetic such as a paracervical block may be administered, dilating agents, if used, are removed and instruments are inserted through the cervix into the uterus to removal fetal and placental tissue. Because fetal tissue is friable and easily broken, the fetus may not be removed intact. The walls of the uterus are scraped with a curette to ensure that no tissue remains. Id. , at 490491.
After 15 weeks:
Because the fetus is larger at this stage of gestation (particularly the head), and because bones are more rigid, dismemberment or other destructive procedures are more likely to be required than at earlier gestational ages to remove fetal and placental tissue. Id. , at 491.
After 20 weeks:
Some physicians use intrafetal potassium chloride or digoxin to induce fetal demise prior to a late D&E (after 20 weeks), to facilitate evacuation. Id ., at 491492.
There are variations in D&E operative strategy; compare ibid. with W. Hern, Abortion Practice 146156 (1984), and Medical and Surgical Abortion 133135. However, the common points are that D&E involves (1) dilation of the cervix; (2) removal of at least some fetal tissue using nonvacuum instruments; and (3) (after the 15th week) the potential need for instrumental disarticulation or dismemberment of the fetus or the collapse of fetal parts to facilitate evacuation from the uterus.
4. When instrumental disarticulation incident to D&E is necessary, it typically occurs as the doctor pulls a portion of the fetus through the cervix into the birth canal. Dr. Carhart testified at trial as follows:
Dr. Carhart: … The dismemberment occurs between the traction of … my instrument and the counter-traction of the internal os of the cervix … .
Counsel: So the dismemberment occurs after you pulled a part of the fetus through the cervix, is that correct?
Dr. Carhart: Exactly. Because youre usingThe cervix has two strictures or two rings, the internal os and the external os … thats whats actually doing the dismembering… .
Counsel: When we talked before or talked before about a D&E, that is notwhere there is not intention to do it intact, do you, in that situation, dismember the fetus in utero first, then remove portions?
Dr. Carhart: I dont think so. … I dont know of any way that one could go in and intentionally dismember the fetus in the uterus. … It takes something that restricts the motion of the fetus against what youre doing before youre going to get dismemberment. 11 F. Supp. 2d, at 1104.
Dr. Carharts specification of the location of fetal disarticulation is consistent with other sources. See Medical and Surgical Abortion 135; App. in Nos. 983245 and 983300 (CA8), p. 683, (testimony of Dr. Phillip Stubblefield) (Q: So you dont actually dismember the fetus in utero, then take the pieces out? A: No).
5. The D&E procedure carries certain risks. The use of instruments within the uterus creates a danger of accidental perforation and damage to neighboring organs. Sharp fetal bone fragments create similar dangers. And fetal tissue accidentally left behind can cause infection and various other complications. See 11 F. Supp. 2d, at 1110; Gynecologic, Obstetric, and Related Surgery 1045 (D. Nichols & D. Clarke-Pearson eds. 2d ed. 2000); F. Cunningham et al., Williams Obstetrics 598 (20th ed. 1997). Nonetheless studies show that the risks of mortality and complication that accompany the D&E procedure between the 12th and 20th weeks of gestation are significantly lower than those accompanying induced labor procedures (the next safest midsecond trimester procedures). See Gynecologic, Obstetric, and Related Surgery, supra , at 1046; AMA Report, App. 495, 496; Medical and Surgical Abortion 139, 142; Lawson, 171 Am. J. Obstet. Gynecol., at 1368.
6. At trial, Dr. Carhart and Dr. Stubblefield described a variation of the D&E procedure, which they referred to as an intact D&E. See 11 F. Supp. 2d, at 1105, 1111. Like other versions of the D&E technique, it begins with induced dilation of the cervix. The procedure then involves removing the fetus from the uterus through the cervix intact, i.e. , in one pass, rather than in several passes. Ibid. It is used after 16 weeks at the earliest, as vacuum aspiration becomes ineffective and the fetal skull becomes too large to pass through the cervix. Id., at 1105. The intact D&E proceeds in one of two ways, depending on the presentation of the fetus. If the fetus presents head first (a vertex presentation), the doctor collapses the skull; and the doctor then extracts the entire fetus through the cervix. If the fetus presents feet first (a breech presentation), the doctor pulls the fetal body through the cervix, collapses the skull, and extracts the fetus through the cervix. Ibid. The breech extraction version of the intact D&E is also known commonly as dilation and extraction, or D&X. Id. , at 1112. In the late second trimester, vertex, breech, and traverse/compound (sideways) presentations occur in roughly similar proportions. Medical and Surgical Abortion 135; 11 F. Supp. 2d, at 1108.
7. The intact D&E procedure can also be found described in certain obstetric and abortion clinical textbooks, where two variations are recognized. The first, as just described, calls for the physician to adapt his method for extracting the intact fetus depending on fetal presentation. See Gynecologic, Obstetric, and Related Surgery, supra, at 1043; Medical and Surgical Abortion 136137. This is the method used by Dr. Carhart. See 11 F. Supp. 2d, at 1105. A slightly different version of the intact D&E procedure, associated with Dr. Martin Haskell, calls for conversion to a breech presentation in all cases. See Gynecologic, Obstetric, and Related Surgery, supra, at 1043 (citing M. Haskell, Dilation and Extraction for Late Second Trimester Abortion (1992), in 139 Cong. Rec. 8605 (1993)).
8. The American College of Obstetricians and Gynecologists describes the D&X procedure in a manner corresponding to a breech-conversion intact D&E, including the following steps:
1. deliberate dilatation of the cervix, usually over a sequence of days;
2. instrumental conversion of the fetus to a footling breech;
3. breech extraction of the body excepting the head; and
4. partial evacuation of the intracranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus. American College of Obstetricians and Gynecologists Executive Board, Statement on Intact Dilation and Extraction (Jan. 12, 1997) (hereinafter ACOG Statement), App. 599560.
Despite the technical differences we have just described, intact D&E and D&X are sufficiently similar for us to use the terms interchangeably.
9. Dr. Carhart testified he attempts to use the intact D&E procedure during weeks 16 to 20 because (1) it reduces the dangers from sharp bone fragments passing through the cervix, (2) minimizes the number of instrument passes needed for extraction and lessens the likelihood of uterine perforations caused by those instruments, (3) reduces the likelihood of leaving infection-causing fetal and placental tissue in the uterus, and (4) could help to prevent potentially fatal absorption of fetal tissue into the maternal circulation. See 11 F. Supp. 2d, at 1107. The District Court made no findings about the D&X procedures overall safety. Id ., at 1126, n. 39. The District Court concluded , however, that the evidence is both clear and convincing that Carharts D&X procedure is superior to, and safer than, the … other abortion procedures used during the relevant gestational period in the 10 to 20 cases a year that present to Dr. Carhart. Id. , at 1126.
10. The materials presented at trial referred to the potential benefits of the D&X procedure in circumstances involving nonviable fetuses, such as fetuses with abnormal fluid accumulation in the brain (hydrocephaly). See 11 F. Supp. 2d, at 1107 (quoting AMA Report, App. 492 ( Intact D&X may be preferred by some physicians, particularly when the fetus has been diagnosed with hydrocephaly or other anomalies incompatible with life outside the womb )); see also Grimes, The Continuing Need for Late Abortions, 280 JAMA 747, 748 (Aug. 26, 1998) (D&X may be especially useful in the presence of fetal anomalies, such as hydrocephalus, because its reduction of the cranium allows a smaller diameter to pass through the cervix, thus reducing risk of cervical injury). Others have emphasized its potential for women with prior uterine scars, or for women for whom induction of labor would be particularly dangerous. See Womens Medical Professional Corp. v. Voinovich , 911 F. Supp. 2d 1051, 1067 (SD Ohio 1995); Evans v. Kelley , 977 F. Supp. 2d 1283, 1296 (ED Mich. 1997).
11. There are no reliable data on the number of D&X abortions performed annually. Estimates have ranged between 640 and 5,000 per year. Compare Henshaw, Abortion Incidence and Services in the United States, 19951996, 30 Family Planning Perspectives 263, 268 (1998), with Joint Hearing on S. 6 and H. R. 929 before the Senate Committee on the Judiciary and the Subcommittee on the Constitution of the House Committee on the Judiciary, 105th Cong., 1st Sess., 46 (1997).
The question before us is whether Nebraskas statute, making criminal the performance of a partial birth abortion, violates the Federal Constitution, as interpreted in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) , and Roe v. Wade, 410 U. S. 113 (1973) . We conclude that it does for at least two independent reasons. First, the law lacks any exception for the preservation of the … health of the mother. Casey, 505 U. S., at 879 (joint opinion of OConnor , Kennedy , and Souter , JJ.). Second, it imposes an undue burden on a womans ability to choose a D&E abortion, thereby unduly burdening the right to choose abortion itself. Id., at 874. We shall discuss each of these reasons in turn.
The Casey joint opinion reiterated what the Court held in Roe; that 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 . 505 U. S., at 879 (quoting Roe , supra , at 164165) (emphasis added).
The fact that Nebraskas law applies both pre- and postviability aggravates the constitutional problem presented. The States interest in regulating abortion previability is considerably weaker than postviability. See Casey , supra , at 870. Since the law requires a health exception in order to validate even a postviability abortion regulation, it at a minimum requires the same in respect to previability regulation. See Casey , supra , at 880 (majority opinion) (assuming need for health exception previability); see also Harris v. McRae, 448 U. S. 297, 316 (1980) .
The quoted standard also depends on the state regulations promoting [the States] interest in the potentiality of human life. The Nebraska law, of course, does not directly further an interest in the potentiality of human life by saving the fetus in question from destruction, as it regulates only a method of performing abortion. Nebraska describes its interests differently. It says the law show[s] concern for the life of the unborn, prevent[s] cruelty to partially born children, and preserve[s] the integrity of the medical profession. Brief for Petitioners 48. But we cannot see how the interest-related differences could make any difference to the question at hand, namely, the application of the health requirement.
Consequently, the governing standard requires an exception where it is necessary, in appropriate medical judgment for the preservation of the life or health of the mother, Casey , supra , at 879, for this Court has made clear that a State may promote but not endanger a womans health when it regulates the methods of abortion. Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747, 768769 (1986) ; Colautti v. Franklin, 439 U. S. 379, 400 (1979) ; Danforth , 428 U. S., at 7679; Doe v. Bolton, 410 U. S. 179, 197 (1973) .
Justice Thomas says that the cases just cited limit this principle to situations where the pregnancy itself creates a threat to health. See post , at 33 . He is wrong. The cited cases, reaffirmed in Casey , recognize that a State cannot subject womens health to significant risks both in that context , <font i="1">and also where state regulations force women to use riskier methods of abortion. Our cases have repeatedly invalidated statutes that in the process of regulating the methods of abortion, imposed significant health risks. They make clear that a risk to a womens health is the same whether it happens to arise from regulating a particular method of abortion, or from barring abortion entirely. Our holding does not go beyond those cases, as ratified in Casey .
Nebraska responds that the law does not require a health exception unless there is a need for such an exception. And here there is no such need, it says. It argues that safe alternatives remain available and a ban on partial-birth abortion/D&X would create no risk to the health of women. Brief for Petitioners 29, 40. The problem for Nebraska is that the parties strongly contested this factual question in the trial court below; and the findings and evidence support Dr. Carhart. The State fails to demonstrate that banning D&X without a health exception may not create significant health risks for women, because the record shows that significant medical authority supports the proposition that in some circumstances, D&X would be the safest procedure.
We shall reiterate in summary form the relevant findings and evidence. On the basis of medical testimony the District Court concluded that Carharts D&X procedure is … safer tha[n] the D&E and other abortion procedures used during the relevant gestational period in the 10 to 20 cases a year that present to Dr. Carhart. 11 F. Supp. 2d, at 1126. It found that the D&X procedure permits the fetus to pass through the cervix with a minimum of instrumentation. Ibid. It thereby
reduces operating time, blood loss and risk of infection; reduces complications from bony fragments; reduces instrument-inflicted damage to the uterus and cervix; prevents the most common causes of maternal mortality (DIC and amniotic fluid embolus); and eliminates the possibility of horrible complications arising from retained fetal parts. Ibid.
The District Court also noted that a select panel of the American College of Obstetricians and Gynecologists concluded that D&X may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman. Id., at 1105, n. 10 (quoting ACOG Statement, App. 600601) (but see an important qualification, infra , at 14). With one exception, the federal trial courts that have heard expert evidence on the matter have reached similar factual conclusions. See Rhode Island Medical Soc. v. Whitehouse , 66 F. Supp. 2d 288, 314 (RI 1999); A Choice for Women v. Butterworth , 54 F. Supp. 2d 1148, 1153, 1156 (SD Fla 1998); Causeway Medical Suite v. Foster , 43 F. Supp. 2d 604, 613614 (ED La. 1999); Richmond Medical Center for Women v. Gilmore , 11 F. Supp. 2d 795, 827, n. 40 (ED Va. 1998); Hope Clinic v. Ryan , 995 F. Supp. 2d 847, 852 (ND Ill. 1998), vacated, 195 F. 3d 857 (CA7 1999), cert. pending, No. 991152; Voinovich , 911 F. Supp. 2d, at 10691070; Kelley , 977 F. Supp. 2d, at 1296; but see Planned Parenthood of Wis. v. Doyle , 44 F. Supp. 2d 975, 980 (WD Wis.) vacated, 195 F. 3d 857 (CA7 1999).
Nebraska, along with supporting amici , replies that these findings are irrelevant, wrong, or applicable only in a tiny number of instances. It says (1) that the D&X procedure is little-used, (2) by only a handful of doctors. Brief for Petitioners 32. It argues (3) that D&E and labor induction are at all times safe alternative procedures. Id., at 36. It refers to the testimony of petitioners medical expert, who testified (4) that the ban would not increase a womans risk of several rare abortion complications (disseminated intravascular coagulopathy and amniotic fluid embolus), id. , at 37; App. 642644.
The Association of American Physicians and Surgeons et al., amici supporting Nebraska, argue (5) that elements of the D&X procedure may create special risks, including cervical incompetence caused by overdilitation, injury caused by conversion of the fetal presentation, and dangers arising from the blind use of instrumentation to pierce the fetal skull while lodged in the birth canal. See Brief for Association of American Physicians and Surgeons et al. as Amici Curiae 2123; see also Sprang & Neerhof, Rationale for Banning Abortions Late in Pregnancy, 280 JAMA 744, 746 (Aug. 26, 1998).
Nebraska further emphasizes (6) that there are no medical studies establishing the safety of the partial-birth abortion/D&X procedure, Brief for Petitioners 39, and no medical studies comparing the safety of partial-birth abortion/D&X to other abortion procedures, ibid. It points to, id., at 35, (7) an American Medical Association policy statement that there does not appear to be any identified situation in which intact D&X is the only appropriate procedure to induce abortion, Late Term Pregnancy Termination Techniques, AMA Policy H5.982 (1997). And it points out (8) that the American College of Obstetricians and Gynecologists qualified its statement that D&X may be the best or most appropriate procedure, by adding that the panel could identify no circumstances under which [the D&X] procedure … would be the only option to save the life or preserve the health of the woman. App. 600601.
We find these eight arguments insufficient to demonstrate that Nebraskas law needs no health exception. For one thing, certain of the arguments are beside the point. The D&X procedures relative rarity (argument (1)) is not highly relevant. The D&X is an infrequently used abortion procedure; but the health exception question is whether protecting womens health requires an exception for those infrequent occasions. A rarely used treatment might be necessary to treat a rarely occurring disease that could strike anyonethe State cannot prohibit a person from obtaining treatment simply by pointing out that most people do not need it. Nor can we know whether the fact that only a handful of doctors use the procedure (argument (2)) reflects the comparative rarity of late second term abortions, the procedures recent development, Gynecologic, Obstetric, and Related Surgery, at 1043, the controversy surrounding it, or, as Nebraska suggests, the procedures lack of utility.
For another thing, the record responds to Nebraskas (and amici s) medically based arguments. In respect to argument (3), for example, the District Court agreed that alternatives, such as D&E and induced labor, are safe but found that the D&X method was significantly safer in certain circumstances. 11 F. Supp. 2d, at 11251126. In respect to argument (4), the District Court simply relied on different expert testimonytestimony stating that [a]nother advantage of the Intact D&E is that it eliminates the risk of embolism of cerebral tissue into the womans blood stream. Id. , at 1124 (quoting Hearing on H. R. 1833 before the Senate Committee on the Judiciary, 104th Cong., 1st Sess., 260 (1995) (statement of W. Hern).
In response to amici s argument (5), the American College of Obstetricians and Gynecologists, in its own amici brief, denies that D&X generally poses risks greater than the alternatives. It says that the suggested alternative procedures involve similar or greater risks of cervical and uterine injury, for D&E procedures, involve similar amounts of dilitation and of course childbirth involves even greater cervical dilitation. Brief for American College of Obstetricians and Gynecologists et al. as Amici Curiae 23. The College points out that Dr. Carhart does not reposition the fetus thereby avoiding any risks stemming from conversion to breech presentation, and that, as compared with D&X, D&E involves the same, if not greater, blind use of sharp instruments in the uterine cavity. Id. , at 2324.
We do not quarrel with Nebraskas argument (6), for Nebraska is right. There are no general medical studies documenting comparative safety. Neither do we deny the import of the American Medical Associations statement (argument (7))even though the State does omit the remainder of that statement: The AMA recommends that the procedure not be used unless alternative procedures pose materially greater risk to the woman. Late Term Pregnancy Termination Techniques, AMA Policy H5.982 (emphasis added).
We cannot, however, read the American College of Obstetricians and Gynecologists panels qualification (that it could not identify a circumstance where D&X was the only life- or health-preserving option) as if, according to Nebraskas argument (8), it denied the potential health-related need for D&X. That is because the College writes the following in its amici brief:
Depending on the physicians skill and experience, the D&X procedure can be the most appropriate abortion procedure for some women in some circumstances. D&X presents a variety of potential safety advantages over other abortion procedures used during the same gestational period. Compared to D&Es involving dismemberment, D&X involves less risk of uterine perforation or cervical laceration because it requires the physician to make fewer passes into the uterus with sharp instruments and reduces the presence of sharp fetal bone fragments that can injure the uterus and cervix. There is also considerable evidence that D&X reduces the risk of retained fetal tissue, a serious abortion complication that can cause maternal death, and that D&X reduces the incidence of a free floating fetal head that can be difficult for a physician to grasp and remove and can thus cause maternal injury. That D&X procedures usually take less time than other abortion methods used at a comparable stage of pregnancy can also have health advantages. The shorter the procedure, the less blood loss, trauma, and exposure to anesthesia. The intuitive safety advantages of intact D&E are supported by clinical experience. Especially for women with particular health conditions, there is medical evidence that D&X may be safer than available alternatives. Brief for American College of Obstetricians and Gynecologists et al. as Amici Curiae 2122 (citation and footnotes omitted).
The upshot is a District Court finding that D&X significantly obviates health risks in certain circumstances, a highly plausible record-based explanation of why that might be so , a division of opinion among some medical experts over whether D&X is generally safer, and an absence of controlled medical studies that would help answer these medical questions. Given these medically related evidentiary circumstances, we believe the law requires a health exception.
The word necessary in Casey s phrase necessary, in appropriate medical judgment, for the preservation of the life or health of the mother, 505 U. S., at 879 (internal quotation marks omitted), cannot refer to an absolute necessity or to absolute proof. Medical treatments and procedures are often considered appropriate (or inappropriate) in light of estimated comparative health risks (and health benefits) in particular cases. Neither can that phrase require unanimity of medical opinion. Doctors often differ in their estimation of comparative health risks and appropriate treatment. And Casey s words appropriate medical judgment must embody the judicial need to tolerate responsible differences of medical opiniondifferences of a sort that the American Medical Association and American College of Obstetricians and Gynecologists statements together indicate are present here.
For another thing, the division of medical opinion about the matter at most means uncertainty, a factor that signals the presence of risk, not its absence. That division here involves highly qualified knowledgeable experts on both sides of the issue. 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. Rather, the uncertainty means a significant likelihood that those who believe that D&X is a safer abortion method in certain circumstances may turn out to be right. If so, then the absence of a health exception will place women at an unnecessary risk of tragic health consequences. If they are wrong, the exception will simply turn out to have been unnecessary.
In sum, Nebraska has not convinced us that a health exception is never necessary to preserve the health of women. Reply Brief for Petitioners 4. Rather, a statute that altogether forbids D&X creates a significant health risk. The statute consequently must contain a health exception. This is not to say, as Justice Thomas and Justice Kennedy claim, that a State is prohibited from proscribing an abortion procedure whenever a particular physician deems the procedure preferable. By no means must a State grant physicians unfettered discretion in their selection of abortion methods. Post , at 14 ( Kennedy , J., dissenting). But where substantial medical authority supports the proposition that banning a particular abortion procedure could endanger womens health, Casey requires the statute to include a health exception when the procedure is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. 505 U. S., at 879. Requiring such an exception in this case is no departure from Casey , but simply a straightforward application of its holding.
The Eighth Circuit found the Nebraska statute unconstitutional because, in Casey s words, it has the effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. 505 U. S., at 877 . It thereby places an undue burden upon a womans right to terminate her pregnancy before viability. Ibid . Nebraska does not deny that the statute imposes an undue burden if it applies to the more commonly used D&E procedure as well as to D&X. And we agree with the Eighth Circuit that it does so apply.
Our earlier discussion of the D&E procedure, supra , at 57, shows that it falls within the statutory prohibition. The statute forbids 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. Neb. Rev. Stat. Ann. §28326(9) (Supp. 1999). We do not understand how one could distinguish, using this language, between D&E (where a foot or arm is drawn through the cervix) and D&X (where the body up to the head is drawn through the cervix). Evidence before the trial court makes clear that D&E will often involve a physician pulling a substantial portion of a still living fetus, say, an arm or leg, into the vagina prior to the death of the fetus. 11 F. Supp. 2d, at 1128; id. , at 11281130. Indeed D&E involves dismemberment that commonly occurs only when the fetus meets resistance that restricts the motion of the fetus: The dismemberment occurs between the traction of … [the] instrument and the counter-traction of the internal os of the cervix. Id. , at 1128. And these events often do not occur until after a portion of a living fetus has been pulled into the vagina. Id., at 1104; see also Medical and Surgical Abortion 135 (During the mid-second trimester, separation of the fetal corpus may occur when the fetus is drawn into the lower uterine segment, where compression and traction against the endocervix facilitates disarticulation).
Even if the statutes basic aim is to ban D&X, its language makes clear that it also covers a much broader category of procedures. The language does not track the medical differences between D&E and D&Xthough it would have been a simple matter, for example, to provide an exception for the performance of D&E and other abortion procedures. E.g. , Kan. Stat. Ann. §656721(b)(1) (Supp. 1999). Nor does the statute anywhere suggest that its application turns on whether a portion of the fetus body is drawn into the vagina as part of a process to extract an intact fetus after collapsing the head as opposed to a process that would dismember the fetus. Thus, the dissenters argument that the law was generally intended to bar D&X can be both correct and irrelevant. The relevant question is not whether the legislature wanted to ban D&X; it is whether the law was intended to apply only to D&X. The plain language covers both procedures. A rereading of pages 510 of this opinion, as well as Justice Thomas dissent at pages 57, will make clear why we can find no difference, in terms of this statute, between the D&X procedure as described and the D&E procedure as it might be performed. (In particular, compare post , at 67, ( Thomas, J., dissenting), with post , at 710 ( Thomas, J., dissenting)). Both procedures can involve the introduction of a substantial portion of a still living fetus, through the cervix, into the vaginathe very feature of an abortion that leads Justice Thomas to characterize such a procedure as involving partial birth.
The Nebraska State Attorney General argues that the statute does differentiate between the two procedures. He says that the statutory words substantial portion mean the child up to the head. He consequently denies the statutes application where the physician introduces into the birth canal a fetal arm or leg or anything less than the entire fetal body. Brief for Petitioners 20. He argues further that we must defer to his views about the meaning of the state statute. Id. , at 1213.
We cannot accept the Attorney Generals narrowing interpretation of the Nebraska statute. This Courts case law makes clear that we are not to give the Attorney Generals interpretative views controlling weight. For one thing, this Court normally follows lower federal-court interpretations of state law. McMillian v. Monroe County, 520 U. S. 781, 786 (1997) ; Brockett v. Spokane Arcades, Inc. , 472 U. S. 491, n. 9 (1985). It rarely reviews a construction of state law agreed upon by the two lower federal courts. Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 395 (1988) . In this case, the two lower courts have both rejected the Attorney Generals narrowing interpretation.
For another, our precedent warns against accepting as authoritative an Attorney Generals interpretation of state law when the Attorney General does not bind the state courts or local law enforcement authorities. Ibid. . Under Nebraska law, the Attorney Generals interpretative views do not bind the state courts. State v. Coffman , 213 Neb. 560, 561, 330 N. W. 2d 727, 728 (1983) (Attorney Generals issued opinions, while entitled to substantial weight and to be respectfully considered, are of no controlling authority). Nor apparently do they bind elected county attorneys, to whom Nebraska gives an independent authority to initiate criminal prosecutions. Neb. Rev. Stat. Ann. §§231201(1), 28328(5), 84205(3) (1999 and Supp. 1999); cf. Crandon v. United States, 494 U. S. 152, 177 (1990) ( Scalia, J., concurring in judgment) ([W]e have never thought that the interpretation of those charged with prosecuting criminal statutes is entitled to deference).
Nor can we say that the lower courts used the wrong legal standard in assessing the Attorney Generals interpretation. The Eighth Circuit recognized its duty to give [the law] a construction … that would avoid constitutional doubts. 192 F. 3d, at 1150. It nonetheless concluded that the Attorney Generals interpretation would twist the words of the law and give them a meaning they cannot reasonably bear. Ibid. The Eighth Circuit is far from alone in rejecting such a narrowing interpretation. The language in question is based on model statutory language (though some States omit any further definition of partial birth abortion), which 10 lower federal courts have considered on the merits. All 10 of those courts (including the Eighth Circuit) have found the language potentially applicable to other abortion procedures. See Planned Parenthood of Greater Iowa, Inc. v. Miller , 195 F. 3d 386 (CA8 1999); Little Rock Family Planning Services v. Jegley , 192 F. 3d 794, 797798 (CA8 1999); Hope Clinic , 195 F. 3d, at 865871 (imposing precautionary injunction to prevent application beyond D&X); id ., at 885889 (Posner, C. J., dissenting); Rhode Island Medical Soc., 66 F. Supp. 2d, at 309310; Richmond Medical Center for Women , 55 F. Supp. 2d, at 471; A Choice for Women , 54 F. Supp. 2d, at 1155; Causeway Medical Suite , 43 F. Supp. 2d, at 614615; Planned Parenthood of Central N. J. v. Verniero , 41 F. Supp. 2d 478, 503504 (NJ 1998); Eubanks v. Stengel , 28 F. Supp. 2d 1024, 10341035 (WD Ky. 1998); Planned Parenthood of Southern Arizona, Inc. v. Woods , 982 F. Supp. 2d 1369, 1378 (Ariz. 1997); Kelley , 977 F. Supp. 2d, at 1317; but cf. Richmond Medical Center v. Gilmore , 144 F. 3d 326, 330332 (CA4 1998) (Luttig, J., granting stay).
Regardless, even were we to grant the Attorney Generals views substantial weight, we still have to reject his interpretation, for it conflicts with the statutory language discussed at page 21, above. The Attorney General, echoed by the dissents, tries to overcome that language by relying on other language in the statute; in particular, the words partial birth abortion, a term ordinarily associated with the D&X procedure, and the words partially delivers vaginally a living unborn child. Neb. Rev. Stat. Ann. §28326(9). But these words cannot help the Attorney General. They are subject to the statutes further explicit statutory definition, specifying that both terms include delivering into the vagina a living unborn child, or a substantial portion thereof. Ibid. When a statute includes an explicit definition, we must follow that definition, even if it varies from that terms ordinary meaning. Meese v. Keene , 481 U. S. 465, 484485 (1987) (It is axiomatic that the statutory definition of the term excludes unstated meanings of that term); Colautti v. Franklin, 439 U. S. at 392393, n. 10 (As a rule, a definition which declares what a term means … excludes any meaning that is not stated ); Western Union Telegraph Co. v. Lenroot , 323 U. S. 490, 502 (1945) ; Fox v. Standard Oil Co. of N. J., 294 U. S. 87, 9596 (1935) (Cardozo, J.); see also 2A N. Singer, Sutherland on Statutes and Statutory Construction §47.07, p. 152, and n. 10 (5th ed. 1992) (collecting cases). That is to say, the statute, read as a whole, post , at 20 ( Thomas , J., dissenting), leads the reader to a definition. That definition does not include the Attorney Generals restrictionthe child up to the head. Its words, substantial portion, indicate the contrary.
The Attorney General also points to the Nebraska Legislatures debates, where the term partial birth abortion appeared frequently. But those debates hurt his argument more than they help it. Nebraskas legislators focused directly upon the meaning of the word substantial. One senator asked the bills sponsor, [Y]ou said that as small a portion of the fetus as a foot would constitute a substantial portion in your opinion. Is that correct? The sponsoring senator replied, Yes, I believe thats correct. App. 452453; see also id., at 442443 (same senator explaining substantial would indicate that more than a little bit has been delivered into the vagina, i.e. , [e]nough that would allow for the procedure to end up with the killing of the unborn child); id., at 404 (rejecting amendment to limit law to D&X). The legislature seems to have wanted to avoid more limiting language lest it become too easy to evade the statutes stricturesa motive that Justice Thomas well explains. Post , at 2425. That goal, however, exacerbates the problem.
The Attorney General, again echoed by the dissents , further argues that the statute distinguishes between the overall abortion procedure itself and the separate procedure used to kill the unborn child. Brief for Petitioners 1618; post, at 1314 (opinion of T homas, J. ), 21 (opinion of Kennedy , J.). Even assuming that the distinction would help the Attorney General make the D&E/D&X distinction he seeks, however, we cannot find any language in the statute that supports it. He wants us to read procedure in the statutes last sentence to mean separate procedure, i.e. , the killing of the fetus, as opposed to a whole procedure, i.e. , a D&E or D&X abortion. But the critical word separate is missing. And the same word procedure, in the same subsection and throughout the statute, is used to refer to an entire abortion procedure. Neb. Rev. Stat. Ann. §§28326(9), 28328(1)(4) (Supp. 1999); cf. Gustafson v. Alloyd Co., 513 U. S. 561, 570 (1995) ([I]dentical words used in different parts of the same act are intended to have the same meaning (internal quotation marks omitted)).
The dissenters add that the statutory words partially delivers can be read to exclude D&E. Post , at 1213 (opinion of Thomas, J. ), 1920 (opinion of Kennedy, J. ). They say that introduction of, say, a limb or both limbs into the vagina does not involve delivery. But obstetric textbooks and even dictionaries routinely use that term to describe any facilitated removal of tissue from the uterus, not only the removal of an intact fetus. E.g. , Obstetrics: Normal & Problem Pregnancies, at 388 (describing delivery of fetal membranes, placenta, and umbilical cord in the third stage of labor); B. Maloy, Medical Dictionary for Lawyers 221 (3d ed. 1960) (Also, the removal of a [fetal] part such as the placenta); 4 Oxford English Dictionary 422 (2d ed. 1989) (to deliver means, inter alia , to disburden (a women) of the foetus); Websters Third New International Dictionary (1993) ([D]elivery means the expulsion or extraction of a fetus and its membranes). In any event, the statute itself specifies that it applies both to delivering an intact unborn child or a substantial portion thereof. T he dissents cannot explain how introduction of a substantial portion of a fetus into the vagina pursuant to D&X is a delivery, while introduction pursuant to D&E is not.
We are aware that adopting the Attorney Generals interpretation might avoid the constitutional problem discussed in this section. But we are without power to adopt a narrowing construction of a state statute unless such a construction is reasonable and readily apparent. Boos v. Barry, 485 U. S. 312, 330 (1988) ; Gooding v. Wilson, 405 U. S. 518, 520521 (1972) . For the reasons stated, it is not reasonable to replace the term substantial portion with the Attorney Generals phrase body up to the head. See Almendarez-Torres v. United States, 523 U. S. 224, 237239 (1998) (statute must be genuinely susceptible to two interpretations).
Finally, the law does not require us to certify the state law question to the Nebraska Supreme Court. Of course, we lack any authoritative state-court construction. But we have never held that a federal litigant must await a state-court construction or the development of an established practice before bringing the federal suit. City of Lakewood v. Plain Dealer Publishing Co., 486 U. S. 750, n. 11 (1988). The Attorney General did not seek a narrowing interpretation from the Nebraska Supreme Court nor did he ask the federal courts to certify the interpretive question. See Brief for State Appellants in Nos. 983245 and 983300 (CA8); cf. Arizonans for Official English v. Arizona, 520 U. S. 43 (1997) . Even if we were inclined to certify the question now, we cannot do so. Certification of a question (or abstention) is appropriate only where the statute is fairly susceptible to a narrowing construction, see Houston v. Hill, 482 U. S. 451, 468471 (1987) . We believe it is not. Moreover, the Nebraska Supreme Court grants certification only if the certified question is determinative of the cause. Neb. Rev. Stat. §24219 (1995); see also Houston v. Hill, supra, at 471 (It would be manifestly inappropriate to certify a question in a case where … there is no uncertain question of state law whose resolution might affect the pending federal claim). Here, it would not be determinative, in light of the discussion in Part IIA.
In sum, using this law some present prosecutors and future Attorneys General may choose to pursue physicians who use D&E procedures, the most commonly used method for performing previability second trimester abortions. All those who perform abortion procedures using that method must fear prosecution, conviction, and imprisonment. The result is an undue burden upon a womans right to make an abortion decision. We must consequently find the statute unconstitutional.
The judgment of the Court of Appeals is
DON STENBERG, ATTORNEY GENERAL OF NEBRASKA,
on writ of certiorari to the united states court of appeals for the eighth circuit
Justice Stevens , with whom Justice Ginsburg joins, concurring.
Although much ink is spilled today describing the gruesome nature of late-term abortion procedures, that rhetoric does not provide me a reason to believe that the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome, or less respectful of potential life than the equally gruesome procedure Nebraska claims it still allows. Justice Ginsburg and Judge Posner have, I believe, correctly diagnosed the underlying reason for the enactment of this legislationa reason that also explains much of the Courts rhetoric directed at an objective that extends well beyond the narrow issue that this case presents. The rhetoric is almost, but not quite, loud enough to obscure the quiet fact that during the past 27 years, the central holding of Roe v. Wade, 410 U. S. 113 (1973) , has been endorsed by all but 4 of the 17 Justices who have addressed the issue. That holdingthat the word liberty in the Fourteenth Amendment includes a womans right to make this difficult and extremely personal decisionmakes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty. But one need not even approach this view today to conclude that Nebraskas law must fall. For the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational. See U. S. Const., Amdt. 14.
DON STENBERG, ATTORNEY GENERAL OF NEBRASKA,
on writ of certiorari to the united states court of appeals for the eighth circuit
Justice OConnor , concurring.
The issue of abortion is one of the most contentious and controversial in contemporary American society. It presents extraordinarily difficult questions that, as the Court recognizes, involve virtually irreconcilable points of view. Ante , at 1. The specific question we face today is whether Nebraskas attempt to proscribe a particular method of abortion, commonly known as partial-birth abortion, is constitutional. For the reasons stated in the Courts opinion, I agree that Nebraskas statute cannot be reconciled with our decision in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) , and is therefore unconstitutional. I write separately to emphasize the following points.
First, the Nebraska statute is inconsistent with Casey because it lacks an exception for those instances when the banned procedure is necessary to preserve the health of the mother. See id. , at 879 (joint opinion of OConnor, Kennedy, and Souter, JJ.) . Importantly, Nebraskas own statutory scheme underscores this constitutional infirmity. As we held in Casey , prior to viability the woman has a right to choose to terminate her pregnancy. Id. , at 870. After the fetus has become viable, States may substantially regulate and even proscribe abortion, but any such regulation or proscription must contain an exception for instances 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, 410 U. S. 113, 165 (1973) ). Nebraska has recognized this constitutional limitation in its separate statute generally proscribing postviability abortions. See Neb. Rev. Stat. Ann. §28329 (Supp. 1999). That statute provides that [n]o abortion shall be performed after the time at which, in the sound medical judgment of the attending physician, the unborn child clearly appears to have reached viability, except when necessary to preserve the life or health of the mother . Ibid. (emphasis added). Because even a postviability proscription of abortion would be invalid absent a health exception, Nebraskas ban on previability partial-birth abortions, under the circumstances presented here, must include a health exception as well, since the States interest in regulating abortions before viability is considerably weaker than after viability. Ante , at 11. The statute at issue here, however, only excepts those procedures necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury. Neb. Rev. Stat. Ann. §28328(1) (Supp. 1999). This lack of a health exception necessarily renders the statute unconstitutional.
Contrary to the assertions of J ustice Kennedy and Justice Thomas, the need for a health exception does not arise from the individual views of Dr. Carhart and his supporters. Post , at 14 ( Kennedy, J<font i="1">. , dissenting); see also post , at 3536 ( Thomas, J ., dissenting ). Rather, as the majority explains, where, as here, 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, ante , at 19, then Nebraska cannot say that the procedure will not, in some circumstances, be necessary to preserve the life or health of the mother. Accordingly, our precedent requires that the statute include a health exception.
Second, Nebraskas statute is unconstitutional on the alternative and independent ground that it imposes an undue burden on a womans right to choose to terminate her pregnancy before viability. Nebraskas ban covers not just the dilation and extraction (D&X) procedure, but also the dilation and evacuation (D&E) procedure, the most commonly used method for performing previability second trimester abortions. Ante , at 27. The statute defines the banned procedure as 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. Neb. Rev. Stat. Ann. §28326(9) (Supp. 1999) (emphasis added). As the Court explains, the medical evidence establishes that the D&E procedure is included in this definition. Thus, it is not possible to interpret the statutes language as applying only to the D&X procedure. Moreover, it is significant that both the District Court and the Court of Appeals interpreted the statute as prohibiting abortions performed using the D&E method as well as the D&X method. See 192 F. 3d 1142, 1150 (CA8 1999); 11 F. Supp. 2d 1099, 11271131 (Neb. 1998). We have stated on several occasions that we ordinarily defer to the construction of a state statute given it by the lower federal courts unless such a construction amounts to plain error. See, e.g., Bishop v. Wood, 426 U. S. 341, 346 (1976) ([T]his Court has accepted the interpretation of state law in which the District Court and the Court of Appeals have concurred even if an examination of the state-law issue without such guidance might have justified a different conclusion); The Tungus v. Skovgaard, 358 U. S. 588, 596 (1959) . Such deference is not unique to the abortion context, but applies generally to state statutes addressing all areas of the law. See, e.g. , UNUM Life Ins. Co. of America v. Ward, 526 U. S. 358, 368 (1999) (notice-prejudice rule in state insurance law); Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 499 (1985) (moral nuisance law); Runyon v. McCrary, 427 U. S. 160, 181 (1976) (statute of limitations for personal injury actions); Bishop v. Wood, supra , at 346, n. 10 (city employment ordinance). Given this construction, the statute is impermissible. Indeed, Nebraska conceded at oral argument that the State could not prohibit the D&E procedure. Tr. of Oral Arg. 10. By proscribing the most commonly used method for previability second trimester abortions, see ante, at 5, the statute creates a substantial obstacle to a woman seeking an abortion, Casey , supra , at 884, and therefore imposes an undue burden on a womans right to terminate her pregnancy prior to viability.
It is important to note that, unlike Nebraska, some other States have enacted statutes more narrowly tailored to proscribing the D&X procedure alone. Some of those statutes have done so by specifically excluding from their coverage the most common methods of abortion, such as the D&E and vacuum aspiration procedures. For example, the Kansas statute states that its ban does not apply to the (A) [s]uction curettage abortion procedure; (B) suction aspiration abortion procedure; or (C) dilation and evacuation abortion procedure involving dismemberment of the fetus prior to removal from the body of the pregnant woman. Kan Stat. Ann. §656721(b)(2) (Supp. 1998). The Utah statute similarly provides that its prohibition does not include the dilation and evacuation procedure involving dismemberment prior to removal, the suction curettage procedure, or the suction aspiration procedure for abortion. Utah Code Ann. §767310.5(1)(a) (1999). Likewise, the Montana statute defines the banned procedure as one in which (A) the living fetus is removed intact from the uterus until only the head remains in the uterus; (B) all or a part of the intracranial contents of the fetus are evacuated; (C) the head of the fetus is compressed; and (D) following fetal demise, the fetus is removed from the birth canal. Mont. Code Ann. §5020401(3)(c)(ii) (Supp. 1999). By restricting their prohibitions to the D&X procedure exclusively, the Kansas, Utah, and Montana statutes avoid a principal defect of the Nebraska law.
If Nebraskas statute limited its application to the D&X procedure and included an exception for the life and health of the mother, the question presented would be quite different than the one we face today. As we held in Casey , an abortion regulation constitutes an undue burden if it has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. 505 U. S., at 877. If there were adequate alternative methods for a woman safely to obtain an abortion before viability, it is unlikely that prohibiting the D&X procedure alone would amount in practical terms to a substantial obstacle to a woman seeking an abortion. Id. , at 884. Thus, a ban on partial-birth abortion that only proscribed the D&X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional in my view.
Nebraskas statute, however, does not meet these criteria. It contains no exception for when the procedure, in appropriate medical judgment, is necessary to preserve the health of the mother; and it proscribes not only the D&X procedure but also the D&E procedure, the most commonly used method for previability second trimester abortions, thus making it an undue burden on a womans right to terminate her pregnancy. For these reasons, I agree with the Court that Nebraskas law is unconstitutional.
DON STENBERG, ATTORNEY GENERAL OF NEBRASKA,
on writ of certiorari to the united states court of appeals for the eighth circuit
Chief Justice Rehnquist , dissenting.
I did not join the joint opinion in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) , and continue to believe that case is wrongly decided. Despite my disagreement with the opinion, under the rule laid down in Marks v. United States, 430 U. S. 188, 193 (1977) , the Casey joint opinion represents the holding of the Court in that case. I believe Justice Kennedy and Justice Thomas have correctly applied Casey s principles and join their dissenting opinions.
DON STENBERG, ATTORNEY GENERAL OF NEBRASKA,
on writ of certiorari to the united states court of appeals for the eighth circuit
Justice Scalia , dissenting.
I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Courts jurisprudence beside Korematsu and Dred Scott . The method of killing a human childone cannot even accurately say an entirely unborn human childproscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion. And the Court must know (as most state legislatures banning this procedure have concluded) that demanding a health exceptionwhich requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?)is to give live-birth abortion free rein. The notion that the Constitution of the United States, designed, among other things, to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity, prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.
Even so, I had not intended to write separately here until the focus of the other separate writings (including the one I have joined) gave me cause to fear that this case might be taken to stand for an error different from the one that it actually exemplifies. Because of the Courts practice of publishing dissents in the order of the seniority of their authors, this writing will appear in the reports before those others, but the reader will not comprehend what follows unless he reads them first.
* * *
The two lengthy dissents in this case have, appropriately enough, set out to establish that todays result does not follow from this Courts most recent pronouncement on the matter of abortion, Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) . It would be unfortunate, however, if those who disagree with the result were induced to regard it as merely a regrettable misapplication of Casey . It is not that, but is Casey s logical and entirely predictable consequence. To be sure, the Courts construction of this statute so as to make it include procedures other than live-birth abortion involves not only a disregard of fair meaning, but an abandonment of the principle that even ambiguous statutes should be interpreted in such fashion as to render them valid rather than void. Casey does not permit that jurisprudential noveltywhich must be chalked up to the Courts inclination to bend the rules when any effort to limit abortion, or even to speak in opposition to abortion, is at issue. It is of a piece, in other words, with Hill v. Colorado , ante , p. ___, also decided today.
But the Court gives a second and independent reason for invalidating this humane (not to say anti-barbarian) law: That it fails to allow an exception for the situation in which the abortionist believes that this live-birth method of destroying the child might be safer for the woman. (As pointed out by Justice Thomas , and elaborated upon by Justice Kennedy , there is no good reason to believe this is ever the case, butwho knows?it sometime might be.)
I have joined Justice Thomas s dissent because I agree that todays decision is an unprecedented expansio[n] of our prior cases, post , at 35, is not mandated by Casey s undue burden test, post, at 33, and can even be called (though this pushes me to the limit of my belief) obviously irreconcilable with Casey s explication of what its undue-burden standard requires, post , at 4. But I never put much stock in Casey s explication of the inexplicable. In the last analysis, my judgment that Casey does not support todays tragic result can be traced to the fact that what I consider to be an undue burden is different from what the majority considers to be an undue burdena conclusion that can not be demonstrated true or false by factual inquiry or legal reasoning. It is a value judgment, dependent upon how much one respects (or believes society ought to respect) the life of a partially delivered fetus, and how much one respects (or believes society ought to respect) the freedom of the woman who gave it life to kill it. Evidently, the five Justices in todays majority value the former less, or the latter more, (or both), than the four of us in dissent. Case closed. There is no cause for anyone who believes in Casey to feel betrayed by this outcome. It has been arrived at by precisely the process Casey promiseda democratic vote by nine lawyers, not on the question whether the text of the Constitution has anything to say about this subject (it obviously does not); nor even on the question (also appropriate for lawyers) whether the legal traditions of the American people would have sustained such a limitation upon abortion (they obviously would); but upon the pure policy question whether this limitation upon abortion is undue i.e. , goes too far.
In my dissent in Casey , I wrote that the undue burden test made law by the joint opinion created a standard that was as doubtful in application as it is unprincipled in origin, Casey , 505 U. S., at 985; hopelessly unworkable in practice, id. , at 986; ultimately standardless, id. , at 987. Todays decision is the proof. As long as we are debating this issue of necessity for a health-of-the-mother exception on the basis of Casey , it is really quite impossible for us dissenters to contend that the majority is wrong on the lawany more than it could be said that one is wrong in law to support or oppose the death penalty, or to support or oppose mandatory minimum sentences. The most that we can honestly say is that we disagree with the majority on their policy-judgment-couched-as-law. And those who believe that a 5-to-4 vote on a policy matter by unelected lawyers should not overcome the judgment of 30 state legislatures have a problem, not with the application of Casey , but with its existence . Casey must be overruled.
While I am in an I-told-you-so mood, I must recall my bemusement, in Casey , at the joint opinions expressed belief that Roe v. Wade had call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution, Casey , 505 U. S., at 867, and that the decision in Casey would ratify that happy truce. It seemed to me, quite to the contrary, that Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since; and that, by keeping us in the abortion-umpiring business, it is the perpetuation of that disruption, rather than of any Pax Roeana , that the Courts new majority decrees. Id. , at 995996. Todays decision, that the Constitution of the United States prevents the prohibition of a horrible mode of abortion, will be greeted by a firestorm of criticismas well it should. I cannot understand why those who acknowledge that, in the opening words of Justice OConnor s concurrence, [t]he issue of abortion is one of the most contentious and controversial in contemporary American society, ante , at 1, persist in the belief that this Court, armed with neither constitutional text nor accepted tradition, can resolve that contention and controversy rather than be consumed by it. If only for the sake of its own preservation, the Court should return this matter to the peoplewhere the Constitution, by its silence on the subject, left itand let them decide, State by State, whether this practice should be allowed. Casey must be overruled.
DON STENBERG, ATTORNEY GENERAL OF NEBRASKA,
on writ of certiorari to the united states court of appeals for the eighth circuit
Justice Kennedy , with whom The Chief Justice joins, dissenting.
For close to two decades after Roe v. Wade , 410 U. S. 113 (1973) , the Court gave but slight weight to the interests of the separate States when their legislatures sought to address persisting concerns raised by the existence of a womans right to elect an abortion in defined circumstances. When the Court reaffirmed the essential holding of Roe , a central premise was that the States retain a critical and legitimate role in legislating on the subject of abortion, as limited by the womans right the Court restated and again guaranteed. Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) . The political processes of the State are not to be foreclosed from enacting laws to promote the life of the unborn and to ensure respect for all human life and its potential. Id. , at 871 (joint opinion of OConnor, Kennedy, and Souter, JJ. ). The States constitutional authority is a vital means for citizens to address these grave and serious issues, as they must if we are to progress in knowledge and understanding and in the attainment of some degree of consensus.
The Courts decision today, in my submission, repudiates this understanding by invalidating a statute advancing critical state interests, even though the law denies no woman the right to choose an abortion and places no undue burden upon the right. The legislation is well within the States competence to enact. Having concluded Nebraskas law survives the scrutiny dictated by a proper understanding of Casey , I dissent from the judgment invalidating it.
The Courts failure to accord any weight to Nebraskas interest in prohibiting partial-birth abortion is erroneous and undermines its discussion and holding. The Courts approach in this regard is revealed by its description of the abortion methods at issue, which the Court is correct to describe as clinically cold or callous. Ante , at 34. 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 transcervical procedures, [o]smotic dilators, instrumental disarticulation, and paracervical block, may be accurate and are to some extent necessary, ante , at 56; but for citizens who seek to know why laws on this subject have been enacted across the Nation, the words are insufficient. Repeated references to sources understandable only to a trained physician may obscure matters for persons not trained in medical terminology. Thus it seems necessary at the outset to set forth what may happen during an abortion.
The person challenging Nebraskas law is Dr. Leroy Carhart, a physician who received his medical degree from Hahnemann Hospital and University in 1973. App. 29. Dr. Carhart performs the procedures in a clinic in Nebraska, id., at 30, and will also travel to Ohio to perform abortions there, id., at 86. Dr. Carhart has no specialty certifications in a field related to childbirth or abortion and lacks admitting privileges at any hospital. Id. , at 82, 83. He performs abortions throughout pregnancy, including when he is unsure whether the fetus is viable. Id., at 116. In contrast to the physicians who provided expert testimony in this case (who are board certified instructors at leading medical education institutions and members of the American Board of Obstetricians and Gynecologists), Dr. Carhart performs the partial-birth abortion procedure (D&X) that Nebraska seeks to ban. He also performs the other method of abortion at issue in the case, the D&E.
As described by Dr. Carhart, the 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. Id., at 61. 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. Ibid. 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 cats tail or drag[ging] a string across the floor, youll just keep dragging it. Its not until something grabs the other end that you are going to develop traction. Id. , at 62. The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn from limb from limb. Id. , at 63. 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 agreed that [w]hen you pull out a piece of the fetus, lets say, an arm or a leg and remove that, at the time just prior to removal of the portion of the fetus, … the fetus [is] alive. Id. , at 62. Dr. Carhart has observed fetal heartbeat via ultrasound with extensive parts of the fetus removed, id. , at 64, 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. Id. , at 63. At the conclusion of a D&E abortion no intact fetus remains. In Dr. Carharts words, the abortionist is left with a tray full of pieces. Id. , at 125.
The other procedure implicated today is called partial-birth abortion or the D&X. 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. Id. , at 61. In the D&X, the abortionist initiates the womans natural delivery process by causing the cervix of the woman to be dilated, sometimes over a sequence of days. Id. , at 492. 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 womans body. Brief for Petitioners 4. 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. Brief for Association of American Physicians and Surgeons et al. as Amici Curiae 27. 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. M. Haskell, Dilation and Extraction for Late Second Trimester Abortion (1992), in 139 Cong. Rec. 8605 (1993). Witnesses report observing the portion of the fetus outside the woman react to the skull penetration. Brief for Petitioners 4. 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. 11 F. Supp. 2d 1099, 1106 (Neb. 1998). 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. App. 58. 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.
Of the two described procedures, Nebraska seeks only to ban the D&X. In light of the description of the D&X procedure, it should go without saying that Nebraskas ban on partial-birth abortion furthers purposes States are entitled to pursue. Dr. Carhart nevertheless maintains the State has no legitimate interest in forbidding the D&X. As he interprets the controlling cases in this Court, the only two interests the State may advance through regulation of abortion are in the health of the woman who is considering the procedure and in the life of the fetus she carries. Brief for Respondent 45. The Court, as I read its opinion, accedes to his views, misunderstanding Casey and the authorities it confirmed.
Casey held that cases decided in the wake of Roe v. Wade, 410 U. S. 113 (1973) , had given [state interests] too little acknowledgment and implementation. 505 U. S., at 871 (joint opinion of OConnor, Kennedy, and Souter, JJ.). The decision turned aside any contention that a person has the right to decide whether to have an abortion without interference from the State, id. , at 875, and rejected a strict scrutiny standard of review as incompatible with the recognition that there is a substantial state interest in potential life throughout pregnancy. Id. , at 876. The very notion that the State has a substantial interest in potential life leads to the conclusion that not all regulations must be deemed unwarranted. Ibid. We held it was inappropriate for the Judicial Branch to provide an exhaustive list of state interests implicated by abortion. Id. , at 877.
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 Nebraskas interests can be given proper weight. The States 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. Brief for Petitioners 4849. A review of Casey demonstrates the legitimacy of these policies. The Court should say so.
States may take sides in the abortion debate and come down on the side of life, even life in the unborn:
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. 505 U. S., at 872 (joint opinion of OConnor, Kennedy , and Souter, JJ. ).
States also have an interest in forbidding medical procedures which, in the States 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. The States interests in regulating are of concomitant extension. Casey recognized 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. Id., at 852.
A State 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. Ibid.; Washington v. Glucksberg, 521 U. S. 702, 730734 (1997) .
Casey demonstrates that the interests asserted by the State are legitimate and recognized by law. It is argued, however, that a ban on the D&X does not further these interests. This is because, the reasoning continues, the D&E method, which Nebraska claims to be beyond its intent to regulate, can still be used to abort a fetus and is no less dehumanizing than the D&X method. While not adopting the argument in express terms, the Court indicates tacit approval of it by refusing to reject it in a forthright manner. Rendering express what is only implicit in the majority opinion, Justice Stevens and Justice Ginsburg 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. The issue is not whether members of the judiciary can see a difference between the two procedures. It is whether Nebraska can. The Courts refusal to recognize Nebraskas right to declare a moral difference between the procedure is a dispiriting disclosure of the illogic and illegitimacy of the Courts approach to the entire case.
Nebraska was entitled to find the existence of a consequential moral difference between the procedures. We are referred to substantial medical authority that D&X perverts the natural birth process to a greater degree than D&E, commandeering the live birth process until the skull is pierced. American Medical Association (AMA) publications describe the D&X abortion method as ethically wrong. AMA Board of Trustees Factsheet on HR 1122 (June 1997), in App. to Brief for Association of American Physicians and Surgeons et al. as Amici Curiae 1 (AMA Factsheet). The D&X differs from the D&E because in the D&X the fetus is killed outside of the womb where the fetus has an autonomy which separates it from the right of the woman to choose treatments for her own body. Ibid. ; see also App. 639640; Brief for Association of American Physicians and Surgeons et al. as Amici Curiae 27 (Intact D&X is aberrant and troubling because the technique confuses the disparate role of a physician in childbirth and abortion in such a way as to blur the medical, legal, and ethical line between infanticide and abortion). Witnesses to the procedure relate that the fingers and feet of the fetus are moving prior to the piercing of the skull; when the scissors are inserted in the back of the head, the fetus body, wholly outside the womans body and alive, reacts as though startled and goes limp. D&Xs stronger resemblance to infanticide means Nebraska could conclude the procedure presents a greater risk of disrespect for life and a consequent greater risk to the profession and society, which depend for their sustenance upon reciprocal recognition of dignity and respect. The Court is without authority to second-guess this conclusion.
Those who oppose abortion would agree, indeed would insist, that both procedures are subject to the most severe moral condemnation, condemnation reserved for the most repulsive human conduct. This is not inconsistent, however, with the further proposition that as an ethical and moral matter D&X is distinct from D&E and is a more serious concern for medical ethics and the morality of the larger society the medical profession must serve. Nebraska must obey the legal regime which has declared the right of the woman to have an abortion before viability. Yet it retains its power to adopt regulations which do not impose an undue burden on the womans right. By its regulation, Nebraska instructs all participants in the abortion process, including the mother, of its moral judgment that all life, including the life of the unborn, is to be respected. 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.
It ill-serves the Court, its institutional position, and the constitutional sources it seeks to invoke to refuse to issue a forthright affirmation of Nebraskas right to declare that critical moral differences exist between the two procedures. The natural birth process has been appropriated; yet the Court refuses to hear the States voice in defining its interests in its law. The Courts holding contradicts Casey s assurance that the States constitutional position in the realm of promoting respect for life is more than marginal.
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 States 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. 11 F. Supp. 2d, at 1105. Requiring Nebraska to defer to Dr. Carharts 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.
I am in full agreement with Justice Thomas that the appropriate Casey inquiry is not, as the Court would have it, whether the State is preventing an abortionist from doing something that, in his medical judgment, he believes to be the most appropriate course of treatment. Post, at 3236. Casey addressed the question whether the State can resolve … philosophic questions [about abortion] in such a definitive way that a woman lacks all choice in the matter. 505 U. S., at 850. We decided the issue against the State, holding that a woman cannot be deprived of the opportunity to make reproductive decisions. Id. , at 860. Casey made it quite evident, however, that the State has substantial concerns for childbirth and the life of the unborn and may enact laws which in no real sense depriv[e] women of the ultimate decision. Id. , at 875 (joint opinion of OC onnor, Kennedy, and S outer , JJ.). Laws having the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus are prohibited. Id. , at 877. Nebraskas law does not have this purpose or effect.
The holding of Casey , allowing a woman to elect abortion in defined circumstances, is not in question here. Nebraska, however, was entitled to conclude that its ban, while advancing important interests regarding the sanctity of life, deprived no woman of a safe abortion and therefore did not impose a substantial obstacle on the rights of any woman. The American College of Obstetricians and Gynecologists (ACOG) could identify no circumstances under which [D&X] would be the only option to save the life or preserve the health of the woman. App. 600601. The American Medical Association agrees, stating the AMAs expert panel, which included an ACOG representative, could not find any identified circumstance where it was the only appropriate alternative. AMA Factsheet 1. The Courts conclusion that the D&X is the safest method requires it to replace the words may be with the word is in the following sentence from ACOGs position statement: An intact D&X, however, may be the best or most appropriate procedure in a particular circumstance. App. 600601.
No studies support the contention that the D&X abortion method is safer than other abortion methods. Brief for Respondent 36, n. 41. 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. Haskell, 139 Cong. Rec. 8605 (1993). Other doctors point to complications that may arise from the D&X. Brief for American Physicians and Surgeons et al. as Amici Curiae 2123; App. 186. 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. Id. , at 636, 639640, 656657. Dr. Boehm, a fellow of ACOG, id. , at 565, supports abortion rights and has provided sworn testimony in opposition to previous state attempts to regulate abortion. Id. , at 608614.
The Court cannot conclude the D&X is part of standard medical practice. It is telling that no expert called by Dr. Carhart, and no expert testifying in favor of the procedure, had in fact performed a partial-birth abortion in his or her medical practice. E.g. , id., at 308 (testimony of Dr. Phillip Stubblefield). In this respect their opinions were courtroom conversions of uncertain reliability. Litigation in other jurisdictions establishes that physicians do not adopt the D&X procedure as part of standard medical practice. E.g. , Richmond Medical Center for Women v. Gilmore , 144 F. 3d 326, 328 (CA4 1998); Hope Clinic v. Ryan , 195 F. 3d 857, 871 (CA7 1999); see also App. 603604. 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. Carharts 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.
Substantial evidence supports Nebraskas conclusion that its law denies no woman a safe abortion. The most to be said for the D&X is it may present an unquantified lower risk of complication for a particular patient but that other proven safe procedures remain available even for this patient. Under these circumstances, the Court is wrong to limit its inquiry to the relative physical safety of the two procedures, with the slightest potential difference requiring the invalidation of the law. As Justice OConnor explained in an earlier case, the State may regulate based on matters beyond what various medical organizations have to say about the physical safety of a particular procedure. Akron v. Akron Center for Reproductive Health, Inc. , 462 U. S. 416, 467 (1983) (dissenting opinion). Where the difference in physical safety is, at best, marginal, the State may take into account the grave moral issues presented by a new abortion method. See Casey , 505 U. S., at 880 (requiring a regulation to impose a significant threat to the life or health of a woman before its application would impose an undue burden (internal quotation marks omitted)). Dr. Carhart does not decide to use the D&X based on a conclusion that it is best for a particular woman. Unsubstantiated and generalized health differences which are, at best, marginal, do not amount to a substantial obstacle to the abortion right. Id. , at 874, 876 (joint opinion of OC onnor, Kennedy, and S outer, JJ.). It is also important to recognize that the D&X is effective only when the fetus is close to viable or, in fact, viable; thus the State is regulating the process at the point where its interest in life is nearing its peak.
Courts are ill-equipped to evaluate the relative worth of particular surgical procedures. The legislatures of the several States have superior factfinding capabilities in this regard . In an earlier case, Justice OConnor had explained that the general rule extends to abortion cases, writing that the Court is not suited to be the Nations ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States. 462 U. S., at 456 (dissenting opinion) (internal quotation marks omitted). Irrespective of the difficulty of the task, legislatures, with their superior factfinding capabilities, are certainly better able to make the necessary judgments than are courts. Id. , at 456, n. 4. Nebraskas judgment here must stand.
In deferring to the physicians judgment, the Court turns back to cases decided in the wake of Roe , cases which gave a physicians treatment decisions controlling weight. Before it was repudiated by Casey , the approach of deferring to physicians had reached its apex in Akron, supra, where the Court held an informed consent requirement was unconstitutional. The law challenged in Akron required the abortionist to inform the woman of the status of her pregnancy, the development of her fetus, the date of possible viability, the physical and emotional complications that may result from an abortion, and the availability of agencies to provide assistance and information. Id. , at 442. The physician was also required to advise the woman of the risks associated with the abortion technique to be employed and other information. Ibid. The law was invalidated based on the physicians right to practice medicine in the way he or she saw fit; for, according to the Akron Court, [i]t remains primarily the responsibility of the physician to ensure that appropriate information is conveyed to his patient, depending on her particular circumstances. Id. , at 443. Dispositive for the Court was that the law was an intrusion upon the discretion of the pregnant womans physician. Id. , at 445. The physician was placed in an undesired and uncomfortable straitjacket. Ibid. (internal quotation marks omitted). The Courts decision today echoes the Akron Courts deference to a physicians right to practice medicine in the way he sees fit.
The Court, of course, does not wish to cite Akron ; yet the Courts holding is indistinguishable from the reasoning in Akron that Casey repudiated. No doubt exists that todays holding is based on a physician-first view which finds its primary support in that now-discredited case. Rather than exalting the right of a physician to practice medicine with unfettered discretion, Casey recognized: Whatever constitutional status the doctor-patient relation may have as a general matter, in the present context it is derivative of the womans position. 505 U. S., at 884 (joint opinion of OC onnor, Kennedy, and Souter, JJ.). Casey discussed the informed consent requirement struck down in Akron and held Akron was wrong. The doctor-patient relation was only entitled to the same solicitude it receives in other contexts. 505 U. S., at 884. The standard of medical practice cannot depend on the individual views of Dr. Carhart and his supporters. The question here is whether there was substantial and objective medical evidence to demonstrate the State had considerable support for its conclusion that the ban created a substantial risk to no womans health. Casey recognized the point, holding the physicians ability to practice medicine was subject to reasonable … regulation by the State and would receive the same solicitude it receives in other contexts. Id., at 884 (joint opinion of OC onnor, Kennedy, and Souter, JJ.). In other contexts, the State is entitled to make judgments where high medical authority is in disagreement.
The Court fails to acknowledge substantial authority allowing the State to take sides in a medical debate, even when fundamental liberty interests are at stake and even when leading members of the profession disagree with the conclusions drawn by the legislature. In Kansas v. Hendricks, 521 U. S. 346 (1997) , we held that disagreements among medical professionals do not tie the States hands in setting the bounds of … laws. In fact, it is precisely where such disagreement exists that legislatures have been afforded the widest latitude. Id. , at 360, n. 3. Instead, courts must exercise caution (rather than require deference to the physicians treatment decision) when medical uncertainty is present. Ibid . ([W]hen a legislature undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation ) (quoting Jones v. United States, 463 U. S. 354, 370 (1983) ); see also Collins v. Texas, 223 U. S. 288, 297298 (1912) (Holmes, J.) (declaring the right of the state to adopt a policy even upon medical matters concerning which there is difference of opinion and dispute); Lambert v. Yellowley, 272 U. S. 581, 596597 (1926) (rejecting claim of distinguished physician because [h]igh medical authority being in conflict … , it would, indeed, be strange if Congress lacked the power [to act]); Marshall v. United States, 414 U. S. 417, 427 (1974) (recognizing there is no agreement among members of the medical profession (internal quotation marks omitted)); United States v. Rutherford, 442 U. S. 544 (1979) (discussing regulatory approval process for certain drugs).
Instructive is Jacobson v. Massachusetts, 197 U. S. 11 (1905) , where the defendant was convicted because he refused to undergo a smallpox vaccination. The defendant claimed the mandatory vaccination violated his liberty to care for his own body and health in such way as to him seems best. Id. , at 26. He offered to prove that members of the medical profession took the position that the vaccination was of no value and, in fact, was harmful. Id. , at 30. The Court rejected the claim, establishing beyond doubt the right of the legislature to resolve matters upon which physicians disagreed:
Those offers [of proof by the defendant] in the main seem to have had no purpose except to state the general theory of those of the medical profession who attach little or no value to vaccination as a means of preventing the spread of smallpox, or who think that vaccination causes other diseases of the body. What everybody knows the court must know, and therefore the state court judicially knew, as this court knows, that an opposite theory accords with the common belief, and is maintained by high medical authority. We must assume that, when the statute in question was passed, the legislature of Massachusetts was not unaware of these opposing theories, and was compelled, of necessity, to choose between them. It was not compelled to commit a matter involving the public health and safety to the final decision of a court or jury. It is no part of the function of a court or a jury to determine which one of two modes was likely to be the most effective for the protection of the public against disease. That was for the legislative department to determine in the light of all the information it had or could obtain. It could not properly abdicate its function to guard the public health and safety. Ibid.
The Jacobson Court quoted with approval a recent state-court decision which observed, in words having full application today:
The fact that the belief is not universal [in the medical community] is not controlling, for there is scarcely any belief that is accepted by everyone. The possibility that the belief may be wrong, and that science may yet show it to be wrong, is not conclusive; for the legislature has the right to pass laws which, according to common belief of the people, are adapted to [address medical matters]. In a free country, where government is by the people, through their chosen representatives, practical legislation admits of no other standard of action. Id. , at 35 (quoting Viemester v. White , 179 N. Y. 235, 241, 72 N. E. 97, 99 (1904)).
Justice OConnor assures the people of Nebraska they are free to redraft the law to include an exception permitting the D&X to be performed when the procedure, in appropriate medical judgment, is necessary to preserve the health of the mother. Ante , at 5. The assurance is meaningless. She 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. Ante , at 1819 (requiring any health exception to tolerate responsible differences of medical opinion which are present here.). A ban which depends on the appropriate medical judgment of Dr. Carhart is no ban at all. He will be unaffected by any new legislation. This, of course, is the vice of a health exception resting in the physicians discretion.
In light of divided medical opinion on the propriety of the partial-birth abortion technique (both in terms of physical safety and ethical practice) and the vital interests asserted by Nebraska in its law, one is left to ask what the first Justice Harlan asked: Upon what sound principles as to the relations existing between the different departments of government can the court review this action of the legislature? Jacobson , supra, at 31. The answer is none.
The Courts next holding is that Nebraskas ban forbids both the D&X procedure and the more common D&E procedure. In so ruling the Court misapplies settled doctrines of statutory construction and contradicts Casey s premise that the States have a vital constitutional position in the abortion debate. I agree with the careful statutory analysis conducted by Justice Thomas , post , at 1027. Like the ruling requiring a physician veto, 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.
Nebraskas statute provides:
No partial birth abortion shall be performed in this state unless such procedure is necessary 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. §28328(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. §28326(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 text demonstrates the law applies only to the D&X procedure. Nebraskas intention is demonstrated at three points in the statutory language: references to partial-birth abortion and to the delivery of a fetus; and the requirement that the delivery occur before the performance of the death-causing procedure.
The term partial-birth abortion means an abortion performed using the D&X method as described above. The Court of Appeals acknowledged the term is commonly understood to refer to a particular procedure known as intact dilation and extraction (D&X). Little Rock Family Planning Servs. v. Jegley , 192 F. 3d 794, 795 (CA8 1999). Dr. Carharts 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. App. 271272. And the 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. AMA Factsheet 3. A commonsense understanding of the statutes reference to partial-birth abortion demonstrates its intended reach and provides all citizens the fair warning required by the law. McBoyle v. United States, 283 U. S. 25, 27 (1931) .
The statutes 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. Carharts own words, the D&E leaves the abortionist with a tray full of pieces, App. 125, at the end of the procedure. Even if it could be argued, as the majority does, ante , at 2526, 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. See Planned Parenthood of Wis. v. Doyle , 9 F. Supp. 2d 1033, 1041 (WD Wis. 1998) (the statute is readily applied to the partial delivery of an intact child but hardly applicable to the delivery of dismembered body parts).
Medical descriptions of the abortion procedures confirm the point, for it is only the description of the D&X that invokes the word delivery. App. 600. The United States, as amicus , cannot bring itself to describe the D&E as involving a delivery, instead substituting the word emerges to describe how the fetus is brought into the vagina in a D&E. Brief for United States as Amicus Curiae 10. The Court, in a similar admission, uses the words a physician pulling a portion of a fetus, ante, at 20, rather than a physician delivering a portion of a fetus; yet only a procedure involving a delivery is banned by the law. Of all the definitions of delivery provided by the Court, ante , at 2526, not one supports (or, more important for statutory construction purposes, requires), the conclusion that the statutory term completing the delivery refers to the placement of dismembered body parts on a tray rather than the removal of an intact fetus from the womans body.
The operation of Nebraskas 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. Neb. Rev. Stat. Ann. §28326(9) (Supp. 1999). 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. Richmond Medical Center for Women v. Gilmore , 144 F. 3d, at 330 (order of Luttig, J.). 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.
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. Ante , at 25. 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. Neb. Rev. Stat. Ann. §28326(9) (Supp. 1999). 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 §28326(9) quoted in the preceding paragraph. The reference to procedure refers to the separate death-causing procedure that is unique to the D&X.
In light of the statutory text, the commonsense understanding must be that the statute covers only the D&X. See Broadrick v. Oklahoma, 413 U. S. 601, 698 (1973) . The AMA does not disagree. It writes: 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. AMA Factsheet 3 (internal quotation marks omitted). Casey disavows strict scrutiny review; and Nebraska must be afforded leeway when attempting to regulate the medical profession. See Kansas v. Hendricks, 521 U. S., at 359 ([W]e have traditionally left to legislators the task of defining terms of a medical nature that have legal significance). To hold the statute covers the D&E, the Court must disagree with the AMA and disregard the known intent of the legislature, adequately expressed in the statute.
Strained statutory constructions in abortion cases are not new, for Justice OConnor identified years ago an unprecedented canon of construction under which in cases involving abortion, a permissible reading of a statute is to be avoided at all costs. Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747, 829 (1986) (dissenting opinion) (internal quotation marks omitted). Casey banished this doctrine from our jurisprudence; yet the Court today reinvigorates it and, in the process, ignores its obligation to interpret the law in a manner to validate it, not render it void. E.g. , Johnson v. Robison, 415 U. S. 361, 366367 (1974) ; Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988) . Avoidance of unconstitutional constructions is discussed only in two sentences of the Courts analysis and dismissed as inapplicable because the statute is not susceptible to the construction offered by the Nebraska Attorney General. Ante , at 26. For the reasons here discussed, the statute is susceptible to the construction; and the Court is required to adopt it.
The Court and Justice OConnor seek to shield themselves from criticism by citing the interpretations of the partial-birth abortion statutes offered by some other federal courts. Ante , at 23. On this issue of nationwide importance, these courts have no special competence; and of appellate courts to consider similar statutes, a majority have, in contrast to the Court, declared that the law could be interpreted to cover only the D&E. See Hope Clinic , 195 F. 3d, at 865871; Richmond Medical Center , supra, at 330332 (order of Luttig, J.). Thirty States have enacted similar laws. It is an abdication of responsibility for the Court to suggest its hands are tied by decisions which paid scant attention to Casey s recognition of the States authority and misapplied the doctrine of construing statutes to avoid constitutional difficulty. Further, the leading case describing the deference argument, Frisby v. Schultz, 487 U. S. 474, 483 (1988) , declined to defer to a lower court construction of the state statute at issue in the case. As Frisby observed, the lower courts ran afoul of the well-established principle that statutes will be interpreted to avoid constitutional difficulties. See also Webster v. Reproductive Health Services, 492 U. S. 490, 514 (1989) (opinion of Rehnquist, C. J. ); id. , at 525 ( OConnor, J ., concurring in part and concurring in judgment).
The majority and, even more so, the concurring opinion by Justice OConnor , ignore the settled rule against deciding unnecessary constitutional questions. The State of Nebraska conceded, under its understanding of Casey , that if this law must be interpreted to bar D&E as well as D&X it is unconstitutional. Since the majority concludes this is indeed the case, that should have been the end of the matter. Yet the Court and Justice OConnor go much farther. They conclude that the statute requires a health exception which, for all practical purposes and certainly in the circumstances of this case, allows the physician to make the determination in his own professional judgment. This is an immense constitutional holding. It is unnecessary; and, for the reasons I have sought to explain, it is incorrect. While it is not clear which of the two halves of the majority opinion is dictum , both are wrong.
The United States District Court in this case leaped to prevent the law from being enforced, granting an injunction before it was applied or interpreted by Nebraska. Cf. Hill v. Colorado , ante, p. ___. In so doing, the court excluded from the abortion debate not just the Nebraska legislative branch but the States executive and judiciary as well. The law was enjoined before the chief law enforcement officer of the State, its Attorney General, had any opportunity to interpret it. The federal court then ignored the representations made by that officer during this litigation. In like manner, Nebraskas courts will be given no opportunity to define the contours of the law, although by all indications those courts would give the statute a more narrow construction than the one so eagerly adopted by the Court today. E.g., Stenberg v. Moore , 258 Neb. 199, 206, 602 N. W. 2d 465, 472 (1995). Thus the court denied each branch of Nebraskas government any role in the interpretation or enforcement of the statute. This cannot be what Casey meant when it said we would be more solicitous of state attempts to vindicate interests related to abortion. Casey did not assume this state of affairs.
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 Courts 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 womans 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.