Partial-birth abortion: Stenberg (2000) and Gonzales (2007)
In Stenberg v. Carhart (2000) the Supreme Court, 5-4, struck down Nebraska's ban on 'partial birth abortion' because it had no health exception and its wording also covered the common D&E method. Congress then passed the Partial-Birth Abortion Ban Act of 2003, and in Gonzales v. Carhart (2007) the Court, 5-4, upheld it. Gonzales contains the Supreme Court's own plain description of second-trimester abortion methods, and Justice Ginsburg's dissent is the strongest statement of the other side. The federal ban remains in force.
What this settles
What the D&E and intact D&E procedures involve, as found by three federal trial courts and described by the Supreme Court; that the government may ban a particular abortion method to show 'profound respect for the life within the woman' and to draw 'a bright line that clearly distinguishes abortion and infanticide'; and that the federal ban (18 U.S.C. § 1531) is valid on its face.What it doesn't settle
Whether abortion as such is wrong. As Ginsburg pointed out, the ban regulates a method and 'saves not a single fetus from destruction', since standard D&E remains legal. Gonzales left open as-applied health challenges, and both cases were decided under Casey's framework, which Dobbs (2022) overruled.The record
Partial-Birth Abortion Ban Act of 2003statute
108th Congress (signed by President Bush, Nov. 5, 2003), Pub. L. 108-105, 117 Stat. 1201, codified at 18 U.S.C. § 1531
(a) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a 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. … (b) As used in this section— (1) the term “partial-birth abortion” means an abortion in which the person performing the abortion— (A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and (B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus
The ban has a life exception but no health exception, which is what Stenberg had required of Nebraska. Gonzales, 550 U.S. at 141, records: 'On November 5, 2003, President Bush signed the Act into law.' Short title per Pub. L. 108-105, § 1.
Checked 2026-10-03: Read 18 U.S.C. § 1531(a)-(b) and its statutory notes (Pub. L. 108–105, § 1, Nov. 5, 2003, 117 Stat. 1201, short title) at Cornell LII. Source
Stenberg, Attorney General of Nebraska, et al. v. Carhart
What it held
Nebraska's ban on 'partial birth abortion' was unconstitutional under Casey and Roe for two independent reasons: it had no exception to preserve the mother's health, and its wording covered the common D&E method as well as intact D&E (D&X), so it placed an undue burden on the right to choose abortion.
Why
Casey required a health exception even after viability, so a ban applying before viability needed one too. Because the statute's words ('delivering into the vagina a living unborn child, or a substantial portion thereof') could reach ordinary D&E, every doctor performing D&E would fear prosecution. The Court would not accept the Attorney General's narrower reading.
Status
Not formally overruled, but its standard was largely displaced by Gonzales v. Carhart (2007), which upheld a more precisely drafted federal ban, and its constitutional basis (Roe and Casey) was overruled by Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022).
In the Court's words
Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child; they recoil at the thought of a law that would permit it.Majority · 530 U.S. at 920
We conclude that it does for at least two independent reasons. First, the law lacks any exception “for the preservation of the … health of the mother.” … Second, it “imposes an undue burden on a woman’s ability” to choose a D&E abortion, thereby unduly burdening the right to choose abortion itself.Majority · 530 U.S. at 930
I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott. The method of killing a human child—one cannot even accurately say an entirely unborn human child—proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion.Dissent · 530 U.S. at 953 (Scalia, J., dissenting)
The State chose to forbid a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life, while the State still protected the woman’s autonomous right of choice as reaffirmed in Casey. The Court closes its eyes to these profound concerns.Dissent · 530 U.S. at 979 (Kennedy, J., dissenting)
The case that struck down state partial-birth bans (about 30 states had them). Worth knowing because pro-choice speakers cite it and because the dissents (Scalia, Kennedy, Thomas) set out the reasoning that won in Gonzales seven years later.
Checked 2026-10-03: Read the official U.S. Reports scan (Library of Congress, usrep530914) and located each quote on its page; cross-checked wording against the Cornell LII text. Source
Gonzales, Attorney General v. Carhart et al. (with Gonzales v. Planned Parenthood Federation of America, Inc., No. 05-1382)
What it held
The federal Partial-Birth Abortion Ban Act of 2003 is not void for vagueness, does not impose an undue burden by covering standard D&E, and is not invalid on its face for lacking a health exception. The judgments of the Eighth and Ninth Circuits striking it down were reversed. Health-based exceptions must be raised in as-applied challenges.
Why
Unlike Nebraska's law, the federal Act is limited to delivering a living fetus past anatomical landmarks (head out, or trunk past the navel) and then performing a separate 'overt act' that kills it, with intent at the outset, so it does not reach ordinary D&E. Under Casey the government has a legitimate interest from the outset of pregnancy in protecting fetal life; it may ban a method that Congress found has 'a disturbing similarity to the killing of a newborn infant', to promote respect for life and protect the integrity of the medical profession. Where there is medical uncertainty about whether the banned method is ever needed, legislatures have wide discretion.
Status
Good law. The federal ban (18 U.S.C. § 1531) remains in force. Dobbs (2022) removed the Casey framework under which Gonzales was decided, which leaves states freer, not less free, to regulate methods.
In the Court's words
After sufficient dilation the surgical operation can commence. The woman is placed under general anesthesia or conscious sedation. The doctor, often guided by ultrasound, inserts grasping forceps through the woman’s cervix and into the uterus to grab the fetus. The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart.Majority · 550 U.S. at 135 (describing standard D&E)
In an intact D&E procedure the doctor extracts the fetus in a way conducive to pulling out its entire body, instead of ripping it apart.Majority · 550 U.S. at 137
The government may use its voice and its regulatory authority to show its profound respect for the life within the woman.Majority · 550 U.S. at 157
Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.Dissent · 550 U.S. at 170-171 (Ginsburg, J., dissenting)
The law saves not a single fetus from destruction, for it targets only a method of performing abortion.Dissent · 550 U.S. at 181 (Ginsburg, J., dissenting)
The Supreme Court's own description of D&E (pp. 135-136) is the most authoritative public source for what a second-trimester surgical abortion involves, and it also confirms that some doctors kill the fetus beforehand by injecting digoxin or potassium chloride (p. 136). The Court also noted that 85-90% of US abortions were in the first trimester (p. 134), so D&E is not how most abortions are done.
Checked 2026-10-03: Read the official U.S. Reports volume text (Library of Congress, usrep550124) and located each quote on its page; also read the slip opinion and Ginsburg dissent at Cornell LII (supct/html/05-380.ZO and .ZD). Source
What the other side argues
They say
The ban is a pretext: it saves no fetus, since the same abortion can be done by standard D&E, and it only takes a sometimes-safer option away from women.
Gonzales, 550 U.S. at 181 (Ginsburg, J., dissenting): 'The law saves not a single fetus from destruction, for it targets only a method of performing abortion.' Stenberg, 530 U.S. at 928-929, recounts the District Court's finding that Dr. Carhart's D&X procedure was 'superior to, and safer than' the alternatives for his patients in the relevant gestational period.
Answer
The first half is true and should be granted: the ban changes the method, not the outcome. The majority's answer is that the law may still mark the line between abortion and infanticide and express respect for life (550 U.S. at 157-158). The pro-life point to draw is the one Ginsburg's dissent itself concedes: if a child partly delivered and then killed is morally troubling, the child fully inside the womb minutes earlier is the same child. On safety, the Court found medical disagreement and left individual health cases to as-applied challenges; the Act already has a life exception.
They say
The Court's reasoning treats women as unable to make their own decisions, especially its speculation that women 'come to regret' abortion.
Gonzales, 550 U.S. at 185 (Ginsburg, J., dissenting): 'This way of thinking reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited.' (Responding to the majority at 159: 'While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.')
Answer
Fair criticism of that passage: the majority admitted it had 'no reliable data', so it should not be cited as evidence about regret. The holding does not depend on it; it rests on the government's interest in protecting life and the integrity of medicine. Don't quote the regret passage as proof of post-abortion harm.
Practise with these cards
E05 Even if it's a person, no one has to use their body to keep someone else alive.
E43 Nobody kills babies after they're born. That's a lie Trump made up to scare people. Infanticide is already illegal.
E43 Nobody kills babies after they're born. That's a lie Trump made up to scare people. Infanticide is already illegal.