Clarence Thomas

“ As I discuss below, the only question after Casey is whether a ban on partial birth abortion without a health exception imposes an "undue burden" on a woman seeking an abortion, meaning that it creates a "substantial obstacle" for the woman. I assume that the Court does not discuss the health risks with respect to undue burden, and instead suggests that health risks are relevant to the necessity of a health exception, because a marginal increase in safety risk for some women is clearly not an undue burden within the meaning of Casey. ”

“ In striking down this statute--which expresses a profound and legitimate respect for fetal life and which leaves unimpeded several other safe forms of abortion--the majority opinion gives the lie to the promise of Casey that regulations that do no more than "express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman's exercise of the right to choose" whether or not to have an abortion. ”

“ Justice Ginsburg seems to suggest that even if the Nebraska statute does not impose an undue burden on women seeking abortions, the statute is unconstitutional because it has the purpose of imposing an undue burden. ”

“ Moreover, even if I were to assume credible evidence on both sides of the debate, that fact should resolve the undue-burden question in favor of allowing Nebraska to legislate. Where no one knows whether a regulation of abortion poses any burden at all, the burden surely does not amount to a "substantial obstacle." Under Casey, in such a case we should defer to the legislative judgment. ”

“ In contrast, "partial birth abortion" has the advantage of faithfully describing the procedure the legislature meant to address because the fact that a fetus is "partially born" during the procedure is indisputable. The term "partial birth abortion" is completely accurate and descriptive, which is perhaps the reason why the majority finds it objectionable. Only a desire to find fault at any cost could explain the Court's willingness to penalize the Nebraska Legislature for failing to replace a descriptive term with a vague one. ”

“ But such a health exception requirement eviscerates Casey 's undue-burden standard and imposes unfettered abortion on demand. The exception entirely swallows the rule. In effect, no regulation of abortion procedures is permitted because there will always be some support for a procedure and there will always be some doctors who conclude that the procedure is preferable. If Nebraska reenacts its partial birth abortion ban with a health exception, the State will not be able to prevent physicians like Dr. Carhart from using partial birth abortion as a routine abortion procedure. ”

“ I will assume, for the sake of discussion, that the category of women whose conduct Nebraska's partial birth abortion statute might affect includes any woman who wishes to obtain a safe abortion after 16 weeks' gestation. I will also assume (although I doubt it is true) that, of these women, every one would be willing to use the partial birth abortion procedure if so advised by her doctor. Indisputably, there is no “large fraction” of these women who would face a substantial obstacle to obtaining a safe abortion because of their inability to use this particular procedure. ”

“ I In the almost 30 years since Roe, this Court has never described the various methods of aborting a second- or third-trimester fetus. From reading the majority's sanitized description, one would think that this case involves state regulation of a widely accepted routine medical procedure. Nothing could be further from the truth. The most widely used method of abortion during this stage of pregnancy is so gruesome that its use can be traumatic even for the physicians and medical staff who perform it. ”

“ The majority's conclusion makes sense only if the undue-burden standard is not whether a "significant body of medical opinion" supports the result, but rather, as Justice Ginsburg candidly admits, whether any doctor could reasonably believe that the partial birth abortion procedure would best protect the woman. ”

“ No one, including the majority, understands the act of pulling off a part of a fetus to be a "delivery."
To make the statute's meaning even more clear, the statute applies only if the physician "partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery." The statute defines this phrase to mean that the physician must complete the delivery "for the purpose of performing a procedure" that will kill the unborn child. ”

“ The AMA has recognized that this procedure is "ethically different from other destructive abortion techniques because the fetus, normally twenty weeks or longer in gestation, is killed outside the womb. The 'partial birth' gives the fetus an autonomy which separates it from the right of the woman to choose treatments for her own body." ”

“ The majority apparently accepts that none of the abortion procedures used for pregnancies in earlier stages of gestation, including "dilation and evacuation" (D&E) as it is practiced between 13 and 15 weeks' gestation, would be compromised by the statute. See ante, at 938-940 (concluding that the statute could be interpreted to apply to instrumental dismemberment procedures used in a later term D&E) . Therefore, only the methods of abortion available to women in this later stage of pregnancy are at issue in this case. ”

“ We do not give statutes the broadest definition imaginable. Rather, we ask whether "the ordinary person exercising ordinary common sense can sufficiently understand and comply with [the statute] ." Ibid. (quoting Civil Service Comm'n v. Letter Carriers, 413 U.S. 548, 579 (1973) ) . While a creative legal mind might be able to stretch the plain language of the Nebraska statute to apply to D&E, "citizens who desire to obey the statute will have no difficulty in understanding it." ”

“ I have already explained why the Nebraska statute reflects the medical differences between D&X and D&E. To the extent the majority means that the Nebraska Legislature should have "tracked the medical differences" by adopting one of the informal definitions of D&X, this argument is without merit; none of these definitions would have been effective to accomplish the State's purpose of preventing abortions of partially born fetuses. ”

“ If this statute is unconstitutional under Casey, then Casey meant nothing at all, and the Court should candidly admit it.
To reach its decision, the majority must take a series of indefensible steps. The majority must first disregard the principles that this Court follows in every context but abortion: We interpret statutes according to their plain meaning, and we do not strike down statutes susceptible of a narrowing construction. ”

“ Such an obstacle does not exist. There are two essential reasons why the Court cannot identify a substantial obstacle. First, the Court cannot identify any real, much less substantial, barrier to any woman's ability to obtain an abortion. And second, the Court cannot demonstrate that any such obstacle would affect a sufficient number of women to justify invalidating the statute on its face.
1 The Casey joint opinion makes clear that the Court should not strike down state regulations of abortion based on the fact that some women might face a marginally higher health risk from the regulation. ”

“ These cases addressed only the situation in which a woman must obtain an abortion because of some threat to her health from continued pregnancy. But Roe and Casey say nothing at all about cases in which a physician considers one prohibited method of abortion to be preferable to permissible methods. Today's majority and Justice O'Connor twist Roe and Casey to apply to the situation in which a woman desires--for whatever reason--an abortion and wishes to obtain the abortion by some particular method. ”

“ More medically sophisticated minds than ours have searched and failed to identify a single circumstance (let alone a large fraction) in which partial birth abortion is required. But no matter. The "ad hoc nullification" machine is back at full throttle. See Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S., at 814 (O’Connor, J., dissenting) ; Madsen v. Women's Health Center, Inc., 512 U.S. 753, 785 (1994) (Scalia, J., concurring in judgment in part and dissenting in part) . ”

“ This procedure, which is used only rarely, is performed on mid- to late-second-trimester (and sometimes third-trimester) fetuses. [6] Although there are variations, it is generally performed as follows: After dilating the cervix, the physician will grab the fetus by its feet and pull the fetal body out of the uterus into the vaginal cavity. 11 F. Supp. 2d, at 1106. At this stage of development, the head is the largest part of the body. Assuming the physician has performed the dilation procedure correctly, the head will be held inside the uterus by the woman's cervix. ”

“ We are particularly reluctant to defer when the lowercourts have fallen into plain error, which is precisely the situation presented here. To the extent they endorsed a broad reading of the ordinance, the lower courts ran afoul of the well-established principle that statutes will be interpreted to avoid constitutional difficulties. ”

“ Justice Ginsburg's view is, apparently, that we can presume an unconstitutional purpose because the regulation is not designed to save any fetus from "destruction" or protect the health of pregnant women and so must, therefore, be designed to "chip away at...Roe." Ante, at 952. This is a strange claim to make with respect to legislation that was enacted in 30 individual States and was enacted in Nebraska by a vote of 45 to 1, Nebraska Legislative Journal, 95th Leg., 1st Sess., 2609 (1997) . ”

“ Having safely entered the skull, he spreads the scissors to enlarge the opening.
"The surgeon removes the scissors and introduces a suction catheter into this hole and evacuates the skull contents. With the catheter still in place, he applies traction to the fetus, removing it completely from the patient." H. R. 1833 Hearing 3, 8-9.
In cases in which the physician inadvertently dilates the woman to too great a degree, the physician will have to hold the fetus inside the woman so that he can perform the procedure. ”

“ Indeed, a significant portion of the Court's opinion was devoted to describing the effect of Congress' use of that term. Id., at 477-479, 483-484. So too, Colautti v. Franklin, 439 U.S. 379, 392-393, n. 10 (1979) , and Western Union Telegraph Co. v. Lenroot, 323 U.S. 490 (1945) , support the proposition that when there are two possible interpretations of a term, and only one comports with the statutory definition, the term should not be read to include the unstated meaning. ”

“ Roe, supra, at 165; Casey, 505 U.S., at 879. Casey said that a health exception must be available if "continuing her pregnancy would constitute a threat" to the woman. Id., at 880 (majority opinion) (emphasis added) . Under these cases, if a State seeks to prohibit abortion, even if only temporarily or under particular circumstances, as Casey says that it may, id., at 879 (plurality opinion) , the State must make an exception for cases in which the life or health of the mother is endangered by continuing the pregnancy. ”

“ Use of the procedure may increase the risk of complications, including cervical incompetence, because it requires greater dilation of the cervix than other forms of abortion. See Epner, Jonas, & Seckinger, Late-term Abortion, 280 JAMA 724, 726 (Aug. 26, 1998) . Physicians have also suggested that the procedure may pose a greater risk of infection. See Planned Parenthood of Wis. v. Doyle, 44 F. Supp. 2d 975, 979 (WD Wis. 1999) . See also Sprang & Neerhof, Rationale for Banning Abortions Late in Pregnancy, 280 JAMA 744 (Aug. 26, 1998) ("Intact D&X poses serious medical risks to the mother") . ”

“ Casey, 505 U.S. 833 (1992) , are to the joint opinion of O'Connor, Kennedy, and Souter, JJ.
2 ↑ . In 1996, the most recent year for which abortion statistics are available from the Centers for Disease Control and Prevention, there were approximately 1,221,585 abortions performed in the United States. Centers for Disease Control and Prevention, Abortion Surveillance--United States, 1996, p. 1 (July 30, 1999) . Of these abortions, about 67,000--5.5%--were performed in or after the 16th week of gestation, that is, from the middle of the second trimester through the third trimester. ”