Leroy H. Carhart, on Behalf of Himself and His Patients Obtaining Abortions v. Donald Stenberg, in His Official Capacity as Attorney General for the State of Nebraska Mike Munch, in His Official Capacity as County Attorney for Sarpy County, and as a Representative of All County Attorneys in Nebraska, Gina Dunning, in Her Official Capacity as Director of Regulation and Licensure of the Nebraska Department of Health and Human Services, and Charles Andrews, M.D., in His Official Capacity as Chief Medical Officer of Nebraska, State of South Carolina State of Idaho State of Louisiana State of Ohio State of Pennsylvania State of Rhode Island State of South Dakota and State of Utah, Amici Curiae, Family Research Council, Amicus Curiae. Leroy H. Carhart, on Behalf of Himself and His Patients Obtaining Abortions v. Donald Stenberg, in His Official Capacity as Attorney General for the State of Nebraska, Mike Munch, in His Official Capacity as County Attorney for Sarpy County, and as a Representative of All County Attor

Citation: 192 F.3d 1142Docket: 98-3245

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

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The Eighth Circuit Court of Appeals reviewed a District Court ruling that deemed a Nebraska statute banning "partial-birth abortion" unconstitutional. The court affirmed the District Court's decision, which permanently enjoined the statute's enforcement and awarded attorney's fees to the plaintiff, Leroy H. Carhart, representing himself and his abortion-seeking patients. The court noted that while the term "partial-birth abortion" lacks precise medical or legal definition, the closest medical description aligns with the American College of Obstetricians and Gynecologists' definition of dilation and extraction (D&X). The statute, however, was found to extend beyond this definition, potentially prohibiting the common second-trimester abortion method known as dilation and evacuation (D&E). Citing Supreme Court precedents, the court concluded that such prohibitions impose an undue burden on a woman's right to choose an abortion, thus declaring the statute invalid. The County Attorney’s challenge regarding attorney's fees was also addressed and the judgment was upheld.

On June 9, 1997, Nebraska's Governor enacted Legislative Bill 23, which prohibits "partial-birth abortion" except when necessary to save a woman's life due to a physical disorder or condition related to pregnancy. The statute defines "partial-birth abortion" as the intentional vaginal delivery of a living unborn child, partially or in substantial part, before killing it. Violating this provision results in a Class III felony, with automatic suspension and revocation of the physician's medical license in Nebraska.

Dr. LeRoy Carhart challenged the constitutionality of LB 23, leading to a District Court temporarily restraining and later permanently enjoining enforcement of the statute. He argued that the law imposed an undue burden on women by banning the dilation and evacuation (D&E) procedure, the most common second-trimester abortion method, and the dilation and extraction (D&X) procedure, which is considered the safest in certain circumstances. Additionally, he claimed the law was vague, particularly regarding the definition of "substantial portion." The District Court ruled LB 23 unconstitutional for imposing an undue burden and being void for vagueness.

Dr. Carhart, who operates a specialized abortion facility in Bellevue, Nebraska, performs abortions from three weeks of gestation until fetal viability, using various procedures influenced by gestational age and medical factors. The D&E and D&X procedures are particularly affected by the legislation, impacting not only Dr. Carhart but also other physicians and their patients in Nebraska.

A report by the American Medical Association outlines the Dilation and Evacuation (D&E) procedure for abortions performed between thirteen and fifteen weeks of gestation, which typically involves the use of osmotic dilators, intravenous fluids, and analgesics or sedatives. A local anesthetic may also be administered, followed by the insertion of instruments through the cervix to remove fetal and placental tissue. Due to the fragility of fetal tissue, it may not be removed intact, and a curette is used to scrape the uterine walls to ensure complete removal of tissue. For pregnancies over fourteen weeks, oxytocin is administered to stimulate uterine contractions.

For D&E procedures conducted between sixteen and twenty-four weeks, the approach includes similar steps but requires more invasive techniques, such as dismemberment, due to the larger and more rigid fetal structure. Some practitioners may induce fetal demise using potassium chloride or digoxin prior to the procedure to ease tissue removal. Dismemberment typically occurs once a portion of the fetus is pulled into the vagina, not within the uterus.

An alternative method called intact dilation and evacuation (intact D&E or D&X) may also be performed during this gestational period. This involves dilating the cervix over several days, converting the fetus to a footling breech position, and partially evacuating the cranial contents to facilitate the vaginal delivery of a deceased but intact fetus. Fetal demise occurs shortly after parts of the fetus are extracted from the uterus, either through dismemberment in D&E or cranial evacuation in D&X.

The excerpt concludes with a reference to the constitutional right established in Roe v. Wade, which affirms a woman's right to choose abortion while allowing states to regulate the procedure post-viability and to impose pre-viability regulations as long as they do not create an "undue burden" on the woman.

A regulation that significantly obstructs a woman's ability to obtain an abortion for a nonviable fetus constitutes an undue burden and is invalid. Numerous states have attempted to implement bans on "partial-birth abortion," with varying statutory language and regulatory reach. However, most federal court challenges have deemed these statutes unconstitutional. Notably, the Sixth Circuit invalidated an Ohio law banning the D&X procedure, finding that its definition inadvertently included the D&E procedure, which is commonly used for second-trimester abortions, thus creating an undue burden on women. 

Other federal district courts have similarly ruled against state bans on partial-birth abortion, citing reasons such as vagueness and ambiguity in statutory language that confuse individuals regarding the law's meaning. For instance, phrases like "partially vaginally delivers" and "substantial portion" were criticized for lacking clarity. Additionally, these statutes were found to impose substantial obstacles by potentially banning essential abortion procedures.

The majority of courts reviewing such statutes, including a Nebraska District Court, have concluded that they cannot withstand constitutional scrutiny. The legal standard for assessing the validity of these regulations follows the precedent set in the Casey case, determining that if a regulation poses a significant obstacle to a woman's choice to have an abortion in a substantial number of relevant cases, it is considered an undue burden and therefore invalid.

LB 23 has been determined by the District Court to create an undue burden by banning the commonly used D&E procedure for second-trimester abortions. The State contends that LB 23 only bans the D&X procedure, arguing that the statute prohibits the intentional delivery of a living fetus or a substantial part thereof for the purpose of performing a procedure that will kill the fetus. However, the interpretation of "substantial portion," which is undefined in the statute, raises issues. If "substantial portion" includes limbs, then LB 23 would also encompass the D&E procedure, as it involves the physician intentionally bringing a part of the living fetus, like an arm or leg, into the vagina during the procedure.

The State argues that the statute’s intent requirement limits its application to partial vaginal delivery, killing the fetus, and completing the delivery, which it defines narrowly as the D&X procedure. However, the D&E procedure also fulfills these criteria, as it involves intentionally bringing a substantial part of the fetus into the vagina, resulting in fetal demise. Thus, the intent to deliver a substantial portion of a living fetus vaginally is sufficient for a violation of LB 23, irrespective of whether the physician intended to perform a D&X. The statute's language, therefore, not only prohibits the D&X procedure but also the D&E procedure, making it unconstitutional due to the undue burden it imposes.

LB 23's ban on the D&E procedure raises the question of whether it creates an undue burden for women seeking second-trimester abortions. The Supreme Court's decision in Planned Parenthood of Central Missouri v. Danforth deemed unconstitutional a similar ban, as it significantly restricted access to a commonly used abortion method, thereby posing a substantial obstacle to women seeking pre-viability abortions. Although LB 23 does not prohibit all second-trimester abortions, it does ban the most prevalent procedure, constituting an undue burden on women’s rights.

The State contends that Roe and Casey do not apply to LB 23 because these cases pertain only to "unborn" fetuses and do not prevent states from protecting partially born entities. However, the term "partially born" is not recognized legally in this context, and the State's argument does not hold, as it is based on a misinterpretation of viability. The Nebraska statute addresses situations where a fetus is partially extracted, but this does not equate to being "partially born," as the fetus must be viable to meet that definition. The statute is focused on nonviable fetuses, making the State's argument irrelevant.

In the appeal concerning the District Court's award of attorney's fees to Dr. Carhart, the court appropriately granted fees under 42 U.S.C. 1988, recognizing him as a prevailing party. Mike Munch, the Sarpy County Attorney named in the lawsuit, acknowledges Dr. Carhart's status as the prevailing party but contests the imposition of attorney's fees against him personally.

The review of attorney's fees is conducted for potential abuse of discretion. A prevailing party in a 1983 suit is generally entitled to recover attorney's fees unless special circumstances render such an award unjust. Mr. Munch argues that special circumstances exist because, as a government official, he is required to follow state law and did not actively engage in the lawsuit. However, it is established that governmental officials are not obligated to enforce unconstitutional laws; they are, in fact, required not to do so. While a prosecuting attorney may not always know a state law's validity, this uncertainty does not constitute a special circumstance that would justify denying attorney's fees. State officials often operate under the assumption that the laws they enforce are valid, and if they are incorrect, the 1988 statute places the financial burden on them, affirming that they bear the risk rather than the wronged party. Additionally, despite Mr. Munch not having enforced LB 23, he has expressed intent to do so. Awarding fees against officials who are required to enforce the law is standard practice. Mr. Munch's claim that his minimal involvement in the lawsuit absolves him from financial responsibility is also unfounded, as he relied on co-defendants for the defense of LB 23's constitutionality and cannot evade contributing to the attorney's fees of the prevailing party.

The District Court's decision to hold Mr. Munch jointly and severally liable for the attorney's fee award was within its discretion, allowing the defendants to determine their internal fee allocation. The judgment of the District Court is affirmed. The court found the law unconstitutional based on undue-burden grounds, specifically regarding the ban on the D&E procedure, without needing to address vagueness or other potential burdens related to the D&X procedure. Gestational age is measured from the first day of the last menstrual period, and the District Court's opinion elaborated on other abortion procedures but focused on those impacted by LB 23. The American Medical Association's report on late-term abortion techniques was admitted as evidence during the preliminary injunction hearing. Physicians can detect a fetal heartbeat via ultrasound, with the parties agreeing that a living fetus is indicated by a heartbeat. LB 23 does not apply in cases where the fetus is not alive, as it pertains only to the delivery of a "living" fetus. The legal standard applied is the undue-burden rule established in Casey. Similar cases have been addressed in the Fourth and Seventh Circuits, with varying outcomes regarding state statutes banning partial-birth abortion.