In lieu of the May 2nd Roe v. Wade opinion leak, we as a nation must examine the implications of overturning the landmark case. For Nebraskans, this would overturn a Supreme Court decision from 2000: Stenberg v. Carhart. This case examined a Nebraskan law on partial birth abortions or, as referred to in the medical field, dilation and extraction (D&X). This method of abortion was prohibited in Nebraska unless it was performed for life-saving purposes. The State Statute 28-328 says: “(1) 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. (2) The intentional and knowing performance of an unlawful partial-birth abortion in violation of subsection (1) of this section is a Class III felony.”

Dr. LeRoy Carhart of Bellevue – a clinician doctor who occasionally practiced D&X – filed a suit in Nebraska’s Federal Court in 1997 saying, “We saw a law that was clearly unconstitutional. It affected my practice. It affected the rights of every woman in Nebraska. It affected the rights of every woman in the United States.”

Don Stenberg, Attorney General for Nebraska at the time, argued that the law did not require a health exception, as partial birth abortions were unnecessary and that safe alternative procedures remained available. Stenberg said in federal court in 1997, the same year the law was enacted, “The state chose to forbid a procedure that many decent and civilized people find so abhorrent as to be among the most serious crimes against human life.”

The federal court judge, Richard Kopf presided over the case ruled in Carhart’s favor in 1998. After recusing himself from hearing other abortion cases, he spoke freely to Nebraska Public Radio’s Bill Kelly in 2015 about his ruling. Kopf said that his decision had less to do with the right-to-choose, but more to do with the vagueness of the law’s wording. In his opinion he wrote that because of the language used the law “was too vague to enforce”. This case was soon to be referred to as another landmark case in abortion legislation when it was elevated to the Supreme court in 2000. This case begs the question: Whose rights are protected in the case of abortion? There are two sides to this debate; those who believe women’s rights are being violated, and those who think the unborn child’s rights are being violated.

Each side had champions of advocacy that spoke on a rainy April afternoon in a press conference on C-SPAN after the arguments were presented in the Supreme Courthouse from both sides.

Patricia Ireland, the president for the National Organization of Women spoke first referencing Roe v. Wade: “It is very clear that if the justices uphold this…ban, some of the most important distinctions in Roe v. Wade will be done away with; Roe v. Wade’s distinction between pre and post viability procedures; Roe v. Wade’s concern for women’s health will simply be wiped away.” Ireland reminded the press that doctors performing this procedure were at risk of felony charges, and up to 20 years of jail time. She then asked the question: why is the medical terminology not referenced in the statute? Judge Kopf in Nebraska asked the same question when he presided over this case, thus validating the pro-choice argument that the vagueness of this law was grounds to eliminate this statute.

President of the Planned Parenthood Federation, Gloria Feld, told the crowd that this risked the rights of all women; their futures, their daughter’s, and granddaughter’s futures; and the ability to decide what is the right for a woman’s own body. Feld believed that this right was immensely larger than an abortion issue. Feld also believed this was a huge violation of the doctor’s right to decide what is in the best interest for a woman’s health. She was then asked a seemingly difficult question on her pro-choice stance about whether a fetus being aborted using the D&X method should be considered a child or if they were just “hunks of flesh”. She continued to propound her stance that this was a woman’s choice, and that it is not about the fetus. She said she refers to the woman – not the unborn child – as a “woman who is capable of responsible, moral decision making.”

Carhart’s lawyer, Simon Heller, from the Center For Reproductive Law and Policy, explained in the press conference that anyone – regardless of the medical procedure being done – deserves the right to the “safest possible care” from their physician. He argued that the legislation is not drafted by the American Medical Association nor endorsed by The American College of Obstetricians and Gynecologists. Heller said this organization opposes this kind of legislation in every state it exists in. The college had filed an amicus curiae in support of Carhart and his lawyers under the pretense that D&X was not only safe, but safer than the alternative procedures. Heller believed this type of legislation on partial-birth abortion was an “extreme measure designed to overturn Roe v. Wade.” To Heller, decisions about a woman’s right-to-choose are not subject to legislatures’ opinions.

Don Stenberg then took the podium to argue that this means of abortion was a “horrific procedure.” He alluded that without banning this procedure we cannot be a civilized nation. To counter Heller, Stenberg stated that the court “will recognize that this is a practice not supported by either the American Medical Association nor by the American College of Gynecologists and Obstetricians and is a procedure that medical experts have said is never necessary to save the life or preserve the health of the mother.” Stenberg, successful in two prior Supreme Court cases, believed that his side of this case was integral to upholding Nebraskan values. Many Nebraskans in our predominantly conservative state do believe in the right-to-life.

Another advocate directly from Nebraska, then Lieutenant Governor Dave Maurstad spoke to the crowds. He was the primary sponsor for the statute along with 27 other state senators who supported this legislation. Maurstad explained, “My intent when I introduced this bill, and is clear in the language of the bill, was to prohibit one specific type of abortion.” The statute passed 45 - 1 when presented in the state senate. He believed, much like Stenberg, that this legislation was integral to the beliefs of Nebraskans. “Our citizens believe that this procedure does…diminish the quality of life [Nebraskans] hope to preserve.” Maurstad wished to present facts about the enactment of this statute to paint a better picture of what he believed Nebraska values most.

James Bopp, the general counsel for the Right to Life Committee, advocated for the pro-life stance on this case. He believed that this procedure was completely optional and could be done away with considering that fact. He told the crowd that “the people that defend this law are out-of-step…many people in America want to draw a line where the abortion right ends and where the protection of the life of the child can begin.” Therefore – according to Bopp’s opinion – a fetus is entitled to the same protections of the 14th amendment that their mothers are.

Baptist Press writer, Kelly Boggs, wrote an opinion in 2009 discussing the concept of a “guardian ad litem” which refers to a party – particularly a child or incapacitated adult – who is incapable of representing themselves. Boggs felt that unborn children were entitled this right of fair representation; they are unable to represent what is best for their lives given they have not been born yet. Boggs renounces Carhart stating: “Either Carhart does not understand the charge given guardian ad litem or he has become so deluded that he really believes some children are better off dead.”

With a complicated decision in the wake, and a sharply divided court, the justices ultimately decided 5 - 4 in favor of Carhart. Justices O’Connor, Ginsberg, Breyer, Souter, and Stevens were in the majority while Justices Rehnquist, Scalia, Kennedy, and Thomas dissented. Justice Breyer’s Majority Opinion stated: “Nebraska’s statute criminalizing the performance of partial birth abortions violates the United States Constitution, as interpreted in Casey and Roe.” The conclusion was that this placed undue burden upon women seeking abortion care. Undue burden is an integral piece of the 14th amendment citing that we as a nation cannot deprive any citizen of the right of life, liberty, or property without the due process of law without interference from the state. After the case was decided, Justice Breyer’s opinion also stated: “All those who perform abortion procedures using that method must fear prosecution, conviction, and imprisonment,” that resulted in an undue burden upon a woman’s right to make an abortion decision. This opinion is based upon the 14th amendment, and the existence of the Roe v. Wade ruling. Scalia’s minority opinion – which many Americans shared – differed drastically from Breyers. He said, “the notion that the Constitution…prohibits the states from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.”

This case will be overturned should the Supreme Court overturn Roe v. Wade. The beautiful thing about our democracy is that every American is entitled to their morals and values – whether it be pro-life or pro-choice. We are entitled to the right to protest and litigate based on our personal and foundational beliefs. Benjamin Franklin once said, “An equal dispensation of protection, rights, privileges, and advantages, is what every party is entitled to, and ought to enjoy.”