Stenberg V. Carhart - The U.S. Supreme Court Ruling - Dissents

Dissents

Justice Anthony Kennedy dissented. Kennedy claimed this type of law was allowed by their ruling in Planned Parenthood v. Casey, which allowed laws to preserve prenatal life to a certain extent. He called Sandra Day O'Connor's behavior a "repudiation" of the understandings and assurances given in Casey. Justice Kennedy also detailed what he deemed a constitutionally protected alternative to partial-birth abortion.

Justice Clarence Thomas read his dissent from the bench when the decision was announced, stating that abortion was not a right contained in the Constitution, and sharply criticized the majority and concurring opinions. Chief Justice William Rehnquist, along with Antonin Scalia, and Thomas have consistently said that they do not believe abortion is a protected right, and have pointed out that "privacy" is not explicitly mentioned in the Constitution. Thomas also pointed out in his dissenting opinion that even if abortion was a woman's right, the law in question was not designed to strike at the right itself. He reminded the others that many groups, including even the American Medical Association, had concluded that partial-birth abortion was very different from other forms of abortion, and was often considered infanticide. Thomas further noted that the gruesome nature of some partial-birth abortions has caused personal trauma in the doctors performing them. In a short separate opinion, Chief Justice Rehnquist stated that he did not join Casey but felt that Justice Kennedy had applied its precedent correctly, and thus joined his opinion.

In his dissent, Justice Scalia recalled his prior dissent in Casey in which he had criticized the undue burden standard as "doubtful in application as it is unprincipled in origin." What constitutes an undue burden is a value judgment, argued Scalia; it should therefore be no surprise that the Court split on whether the Nebraska statute constitutes an undue burden. Scalia moreover chastised Kennedy for feeling betrayed by the majority. Scalia declared that the Stenberg decision was not "a regrettable misapplication of Casey,"—as Kennedy claimed—but "Casey's logical and entirely predictable consequence." Denouncing the undue burden standard of Casey as illegitimate, Scalia called for Casey to be overruled.