Stenberg v. Carhart

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In Stenberg v. Carhart, 530 U.S. 914 (2000), the U.S. Supreme Court decision which invalidated state laws against partial-birth abortion, specifically declaring as unconstitutional a Nebraska law that outlawed partial-birth abortion. The case was predicated on the practice of late term abortionist LeRoy Carhart.[1] The Court invalidated these laws even though they had never been applied, contrary to its ruling in United States v. Salerno, 481 U.S. 739, 745 (1987), that a facial challenge to a statute can succeed only if there are no circumstances in which the statute may be applied constitutionally. The Court did not even cite or distinguish the Salerno rule.

This ruling was by the narrowest of margins, 5-4, and one of the Justices in the majority (Sandra Day O'Connor) has been replaced by Justice Samuel Alito.

This decision was subsequently narrowed, or even tacitly overruled, by Gonzales v. Carhart.


The main opinion of the court, written by Stephen Breyer, held that the precedent of Planned Parenthood v. Casey required holding as unconstitutional this law based on his view that it placed an "undue burden" on obtaining an abortion. Justices Ruth Bader Ginsburg, John Paul Stevens, and O'Connor wrote concurrences ([1], [2], [3]) which focused on speculative health concerns and the doctor-patient relationship. In particular, O'Connor wrote that such a law required an exception for allowing the procedure if the abortionist felt that his operation was needed for the health of the mother. In Bolton v. Doe (1973), the Court had defined health of the mother to include psychological or even economic considerations.


Justice Anthony Kennedy wrote a dissent arguing that the law was consistent with Casey because it allowed some laws protecting the fetuses. Justices Clarence Thomas and Antonin Scalia wrote separate additional dissents ([4], [5]) rejecting that there was any right to an abortion at all and thus not recognizing any logic which used Casey or Roe v. Wade. Indeed, Justice Scalia went so far in his dissent to attack Justice Kennedy's claims that the majority was not following Casey and argued furthermore that the decision by the majority demonstrated a reducio ad absurdam of Casey.

Justice Rehnquist also dissented, merely repeating that he thought Casey was wrongly decided.

Subsequent Developments

A federal law banning partial-birth abortion was signed into law in 2003. Entitled the Partial-Birth Abortion Ban Act (HR 760, S 3), it passed in the House with a vote of 281-142 and in the Senate with a vote of 64-34. Federal courts prevented it from ever taking effect until the U.S. Supreme Court upheld the law in early 2007 in Gonzales v. Carhart.

See also


  1. Stenberg v Carhart