Anthony Kennedy

“ 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. ”

“ 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 O'Connor, Kennedy, and Souter, 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. ”

“ 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] . ”

“ 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. ”

“ 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." ”

“ 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." ”

“ 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 woman's body and alive, reacts as though startled and goes limp. D&X's 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. ”

“ Yet it retains its power to adopt regulations which do not impose an undue burden on the woman's 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. ”

“ 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 1009-1013. 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." ”

“ 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. ”

“ The operation of Nebraska's 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." ”

“ II 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 State's judgment that the procedures should not be performed. ”

“ 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. ”

“ 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. Carhart's 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. ”

“ The person challenging Nebraska's 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. ”

“ 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. ”

“ Strained statutory constructions in abortion cases are not new, for Justice O'Connor 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." ”

“ 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 924-925; but for citizens who seek to know why laws on this subject have been enacted across the Nation, the words are insufficient. ”

“ 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. ”