A. Stephen Hut, Jr., Wilmer Cutler Pickering Hale and Dorr LLP, represented the plaintiffs in National Abortion Federation v. Ashcroft, the companion case brought in the Southern District of New York. His commentary follows.
One of the most striking things about Kennedy’s decision for the Court is how little it even attempts to grapple with Stenberg. Kennedy contends that the Court need not overturn Stenberg because, unlike the Nebraska law at issue in Stenberg, this law is narrowly tailored to reach only intact D&E procedures and no more. But Stenberg was not merely a ruling on the scope of Nebraska’s ban. Stenberg squarely held that even assuming that the ban reached only intact D&E procedures, it could not stand without a health exception. Thus, for the Court to rule as it did, it had to overrule Stenberg. To justify this reversal, Kennedy should have focused on what had changed in the seven years since Stenberg with respect to the safety benefits of intact D&E. He did not — indeed could not — because nothing has changed over those years except the amassing of even more evidence that highly experienced physicians believe that D&Es involving intact removal have safety advantages and that such procedures are therefore taught and performed at the nations leading medical schools and teaching hospitals.
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