June 28, 2000
5-4 Decision
Majority: Breyer, Stevens, O’Connor, Souter, Ginsburg
Dissent: Kennedy, Rehnquist, Scalia, and Thomas

In Stenberg, by a vote of 5-4, the Court invalidated a Nebraska law banning so-called "partial-birth" abortions. The Court found that the statute was unconstitutional under Roe and Casey because it did not include an exception allowing the banned procedure when necessary to preserve a woman’s health. The Court also ruled that because that law banned the safest and most common procedures used for abortions performed after 12 weeks of pregnancy, it imposed an undue burden on a woman’s right to choose an abortion.

The majority reiterated a principle announced in previous cases that "a State may promote but not endanger a woman's health when it regulates the methods of abortion," and rejected Nebraska’s argument that no health exception was needed because safe alternative procedures were available. The majority concluded that "where substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women's health," Casey requires the statute to include a health exception when the procedure is "’necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’" In reaching this conclusion, the majority did not utilize the undue burden analysis, leading several Circuit Courts of Appeals in subsequent cases to conclude that health exceptions in abortion restrictions are a per se constitutional requirement. See Planned Parenthood v. Owens, 287 F.3d 910 (2002).

The majority also found that the "partial-birth" ban was broad enough to cover dilation and evacuation procedures, "the most commonly used method for performing previability second trimester abortions." As a result, "[a]ll 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." Justice O’Connor, in concurrence, stated that in her view "a ban on partial-birth abortion that only proscribed the D & X method of abortion and that included an exception to preserve the life and health of the mother would be constitutional."

Justice Kennedy, who had joined the plurality opinion in Casey, dissented, arguing that the majority’s opinion failed to give adequate weight to the State’s asserted interests, including its right to legislate based on "moral differences" between abortion procedures. In Justice Kennedy’s view, the division of opinion among medical authorities, combined with the State’s interests, justified the ban.