Leroy Carhart v. Don Stenberg

Citations: 192 F.3d 1142; 1999 WL 753919Docket: 98-3245NE, 98-3300NE

Court: Court of Appeals for the Eighth Circuit; September 24, 1999; Federal Appellate Court

Original Court Document: View Document

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

The Eighth Circuit Court of Appeals reviewed a case involving Leroy H. Carhart, who challenged the constitutionality of a Nebraska statute banning "partial-birth abortion." The District Court had declared the statute unconstitutional, permanently enjoining its enforcement and awarding attorney's fees to Carhart. The appeal, filed by the State of Nebraska and the County Attorney of Sarpy County regarding the attorney's fees, was upheld by the appellate court. The court noted that the term "partial-birth abortion" lacks a precise medical definition, although the American College of Obstetricians and Gynecologists (ACOG) provides a description that aligns with the statute's definition. However, the court emphasized that the statute's broader scope could restrict common second-trimester abortion methods, violating established Supreme Court precedents by imposing an undue burden on women's rights to choose abortion. Consequently, the court affirmed the District Court's ruling declaring the statute invalid.

On June 9, 1997, Nebraska's Governor enacted Legislative Bill 23, which prohibits 'partial-birth abortion' except when necessary to save a mother's life due to physical disorder, illness, or injury related to pregnancy. The statute defines 'partial-birth abortion' as a procedure where a living unborn child is partially delivered before being killed. Violating this law constitutes a Class III felony, leading to automatic suspension and revocation of the physician's medical license. Dr. LeRoy Carhart challenged the law's constitutionality, resulting in the District Court issuing a temporary restraining order, a preliminary injunction, and ultimately declaring LB 23 unconstitutional. The court found that the law imposed an undue burden by banning the dilation and evacuation (D&E) procedure, the most common second-trimester abortion method, and was vague regarding the term 'substantial portion.' The District Court's findings were accepted as not clearly erroneous. Dr. Carhart, who operates a specialized abortion clinic in Bellevue, Nebraska, performs abortions from three weeks gestation until fetal viability, with procedures tailored to gestational age and medical conditions. The court's ruling focused on the undue burden imposed by the D&E ban, rendering further discussion on vagueness unnecessary.

LB 23's ban directly impacts two abortion procedures performed by Dr. Carhart: dilation and evacuation (D&E) and intact dilation and evacuation or dilation and extraction (D&X), both of which are used in the second trimester. The D&E procedure, the most common for this stage, involves gradual dilation of the cervix, followed by the removal of the fetus and other products of conception. The American Medical Association (AMA) report outlines the D&E technique for gestations from thirteen to fifteen weeks, which typically involves osmotic dilators, intravenous fluids, analgesics, and local anesthetics. Instruments are then inserted through the cervix to remove the fetal and placental tissue, with curettage performed to ensure no tissue remains. For pregnancies over 14 weeks, oxytocin is administered to stimulate uterine contractions.

For the D&E procedure at sixteen to twenty-four weeks, the technique varies slightly due to the increased size and rigidity of the fetus. Extraction involves surgical instruments and may require dismemberment of the fetus. Some physicians may use potassium chloride or digoxin to induce fetal demise before the procedure to ease evacuation. The AMA's report on late-term abortion techniques was admitted as evidence during the preliminary injunction hearing.

Dr. Carhart clarified that dismemberment occurs after part of the fetus is pulled through the cervix, facilitated by the cervix's internal and external os. He indicated that intentional in-utero dismemberment is not performed due to the risk of uterine injury. Testimony from Dr. Phillip Stubblefield supported this, explaining that to dismember a fetus in utero would require invasive methods that significantly increase the risk of serious injuries to the woman.

A physician may attempt to perform an intact dilation and evacuation (intact D&E) or dilation and extraction (D&X) procedure during abortions between sixteen and twenty-four weeks' gestation, aiming to remove the fetus intact. The D&X procedure involves several steps: cervical dilation over multiple days, converting the fetus to a footling breech position, extracting the body while leaving the head inside the uterus, and evacuating the intracranial contents to allow for vaginal delivery of a dead but otherwise intact fetus. The process leads to fetal demise, which may occur after dismemberment in D&E procedures or following cranial evacuation in D&X procedures, generally within minutes of part of the fetus exiting the uterus.

The Supreme Court established a constitutional right for women to choose abortion in Roe v. Wade, allowing states to regulate post-viability abortions without imposing an undue burden on pre-viability abortions. Statutes aimed at banning "partial-birth abortion" vary by state, but courts have frequently ruled these bans unconstitutional. The Sixth Circuit invalidated an Ohio statute banning D&X procedures, while the Fourth Circuit initially granted a stay on Virginia's ban before ultimately striking it down. The Seventh Circuit also reversed a lower court's decision denying a preliminary injunction against Wisconsin's partial-birth abortion ban.

In Planned Parenthood of Wisconsin v. Doyle, the District Court upheld the constitutionality of a statute banning the dilation and extraction (D&X) abortion procedure, which was defined as the termination of a pregnancy by removing the brain of a fetus through suction. However, the court determined that the statute's definition inadvertently included the dilation and evacuation (D&E) procedure, which is commonly used for second-trimester abortions. This overlap created an undue burden on women seeking these abortions, as the statute's language effectively restricted access to a widely utilized method. 

Multiple district courts have examined similar state statutes banning "partial-birth abortion," with most ruling them unconstitutional. For instance, the broad and ambiguous language of these statutes was found to create significant obstacles for women seeking safe abortions, leading to vagueness issues, as ordinary individuals could not reliably interpret terms like "partially vaginally delivers." Courts such as in Hope Clinic v. Ryan and Evans v. Kelley highlighted that these statutes not only failed to clearly define prohibited conduct but also risked banning essential and safe abortion procedures, ultimately concluding that such regulations constitute an undue burden on the right to choose. The Nebraska District Court aligned with this majority view, ruling that its statute on "partial-birth abortion" could not withstand constitutional scrutiny, applying the standard outlined in Casey regarding substantial obstacles to a woman's choice.

The District Court found that LB 23 imposes an undue burden by banning the most common second-trimester abortion procedure, the D&E. The State contends that LB 23 only bans the D&X procedure, arguing that the statute prohibits "deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof," as per Neb. Rev. Stat. 28-326(9, 1998). The State claims the Nebraska Legislature intended to ban only D&X; however, the statute's language suggests it encompasses more, particularly because the term "substantial portion" is undefined. If "substantial portion" includes limbs, then LB 23 restricts both D&E and D&X procedures. The District Court noted that an ordinary interpretation of "substantial" would include limbs. In a D&E, a physician often extracts a part of the living fetus, such as an arm or leg, which would violate LB 23. 

The State argues that the statute’s scienter requirement limits its application to the deliberate performance of a partial-birth abortion. However, the D&E procedure inherently involves the intentional partial delivery of a living fetus, leading to its demise. The intent to deliver a substantial portion vaginally is sufficient for violation, regardless of whether the physician intended to perform a D&X. Furthermore, since any abortion procedure aims to terminate the fetus, the intent requirement does not shield D&E practitioners from violating LB 23. Consequently, LB 23 effectively prohibits both D&X and D&E procedures.

LB 23 bans the D&E procedure used in second-trimester abortions, raising the question of whether this ban constitutes an undue burden on women seeking such abortions. The Supreme Court's ruling in Planned Parenthood of Central Missouri v. Danforth deemed unconstitutional a similar statute that effectively limited access to the most common second-trimester abortion method, which aligns with the undue-burden standard established in Casey. Although LB 23 does not prohibit all second-trimester abortions, it specifically restricts the most prevalent procedure, imposing a substantial obstacle to a woman's right to choose an abortion.

The State argues that Roe and Casey do not apply to LB 23 because they pertain only to the 'unborn' and allow for protections of 'partially born' human beings. The State's definition of 'partially born' refers to a fetus killed when it is more outside the womb than inside. However, the court finds this argument unpersuasive, noting that the Nebraska statute is violated when any part of a living fetus is extracted during the D&E procedure, regardless of whether it is considered 'partially born.' The court also clarifies that 'born' should refer to a viable fetus capable of surviving outside the mother, while the Nebraska statute does not limit its application to viable fetuses.

Additionally, Mike Munch, the Sarpy County Attorney, appeals the District Court's award of attorney's fees to Dr. Carhart, who successfully challenged LB 23. Under 42 U.S.C. 1988, a prevailing party in a lawsuit under 42 U.S.C. 1983 may recover reasonable attorney's fees. Mr. Munch acknowledges Dr. Carhart's status as a prevailing party but contests the applicability of the fee award against him in his official capacity.

The review of attorney's fees awarded is conducted for potential abuse of discretion, affirming that a prevailing party in a 1983 action typically recovers fees unless special circumstances render it unjust. Mr. Munch argues that, as a government official bound to enforce LB 23, he should not be liable for fees as he did not actively participate in the lawsuit. However, the court clarifies that officials are not required to follow unconstitutional laws, and the belief that a law may be upheld does not constitute a special circumstance justifying a denial of fees. The burden of enforcing potentially unconstitutional laws falls on officials, not the aggrieved parties. Mr. Munch's potential future prosecution under LB 23 and his reliance on co-defendants for defense do not exempt him from liability for attorney’s fees. The District Court's holding that Mr. Munch is jointly and severally liable for the fees is affirmed, allowing defendants to allocate costs among themselves.