The court upheld by a narrow margin of 5–4, a frail pro-choice victory, the Eighth Circuit Court of Appeals’ decision invalidating Nebraska’s ban on so-called “partial-birth" abortion. In its judgment, the court ruled on two components of Nebraska’s ban —the lack of a health exception and the undue burden on a woman’s right to abortion created by broad language of the ban.
These two components are described below:
1) Health Exception: The majority opinion reaffirmed that when a state regulates abortion, a woman’s health must be paramount. The court held that every abortion regulation must contain a health exception allowing an abortion when “necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." The court also ruled that the exception must allow the physician to exercise reasonable medical judgment, even where there might be differing medical opinion. The court made clear that such an exception cannot be limited to when there is an “absolute necessity," nor unanimity of medical opinion and that the law must tolerate responsible differences of medical opinion. The opinion also made clear that this exception not only applies to circumstances that arise as a result of the woman’s medical condition, but also applies to regulations that would, without such an exception, “force women to use riskier methods of abortion." Because the Nebraska law lacks a health exception, the court ruled that it is unconstitutional.
2) Undue Burden: In ruling that the statute imposed an undue burden, the court rejected Nebraska’s claim that the ban could be limited to the dilation and extraction (D&X) procedure, holding that “[e]ven if the statute’s basic aim is to ban D&X, its language makes clear that it also covers a much broader category of procedures," including the dilation and evacuation (D&E) procedure. Thus, the court found that the law could be used to, “pursue physicians who use D&E procedures, the most commonly used method for performing pre-viability second-trimester abortions. All those who perform abortion procedures using that method must fear prosecution, conviction, and imprisonment. The result is an undue burden upon a woman’s right to make an abortion decision."
