"That holding--that the word 'liberty' in the Fourteenth Amendment includes a woman’s right to make this difficult and extremely personal decision--makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty," Justice Stevens wrote in his concurring opinion in Stenberg v. Carhart.
During his time on the court, Stevens joined in two Supreme Court opinions specifically arguing that partial-birth abortion was a constitutional right. The first was the majority opinion in Stenberg, the second was the minority opinion in Gonzales v. Carhart.
“At his vacation home in Florida, he was John from Arlington, better known for his world-class bridge game than his world-changing judicial opinions,” Obama said at a White House ceremony on Tuesday as he awarded Stevens the Medal of Freedom.
“Even in his final days on the bench, Justice Stevens insisted he was still ‘learning on the job,’" Obama said. "But in the end, we are the ones who have learned from him.”
The official citation for Steven’s Medal of Freedom lauds him for his commitment to “the noble vision of our nation’s founders.”
“And as a Supreme Court Justice, he dedicated his long and distinguished tenure to applying our Constitution with fidelity and independence,” says the citation. “His integrity, humility, and steadfast commitment to the rule of law have fortified the noble vision of our nation’s founders.”
On April 25, 2000, the Supreme Court heard arguments in the case of Stenberg v. Carhart. The question was whether the state of Nebraska could prohibit the practice of “deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child.”
On June 28, 2000, the court delivered a 5-4 decision in Stenberg, with the majority ruling that the U.S. Constitution protected the right of woman to hire a doctor to partially deliver her child and then kill that child.
Justice Stevens was one of the five justices in the majority. Justice Stephen Breyer wrote the majority opinion, but to make his own views plain Stevens wrote a concurrence in which Justice Ruth Bader Ginsburg joined.
In the majority opinion, Justice Breyer argued that a partial-birth abortion (or dilation and extraction, D&X) was too similar in practice to a dilation and evacuation abortion (D&E) for Nebraska’s law to stand. A doctor's fear of being prosecuted for a D&X while in fact he was performing a D&E placed an “undue burden” on the constitutional right of the women to have her child aborted.
“Our earlier discussion of the D&E procedure … shows that it falls within the statutory prohibition,” wrote Breyer. “The statute forbids ‘deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child.’ We do not understand how one could distinguish, using this language, between D&E (where a foot or arm is drawn through the cervix) and D&X (where the body up to the head is drawn through the cervix). Evidence before the trial court makes clear that D&E will often involve a physician pulling a “substantial portion” of a still living fetus, say, an arm or leg, into the vagina prior to the death of the fetus. Indeed D&E involves dismemberment that commonly occurs only when the fetus meets resistance that restricts the motion of the fetus: ‘The dismemberment occurs between the traction of . . . [the] instrument and the counter-traction of the internal os of the cervix.’ And these events often do not occur until after a portion of a living fetus has been pulled into the vagina.”
In concurring in Breyer’s opinion, future Medal of Freedom winner Stevens said that preserving the right to dismember what he called a “potential life” partially removed from his or her mother’s womb was really a question about the “liberty” protected by the 14th Amendment as recognized in the 1973 case of Roe v. Wade.
“Although much ink is spilled today describing the gruesome nature of late-term abortion procedures, that rhetoric does not provide me a reason to believe that the procedure Nebraska here claims it seeks to ban is more brutal, more gruesome, or less respectful of 'potential life' than the equally gruesome procedure Nebraska claims it still allows,” said Stevens.
“The rhetoric is almost, but not quite, loud enough to obscure the quiet fact that during the past 27 years, the central holding of Roe v. Wade, has been endorsed by all but 4 of the 17 Justices who have addressed the issue. That holding— that the word 'liberty' in the Fourteenth Amendment includes a woman’s right to make this difficult and extremely personal decision—makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty.
“But one need not even approach this view today to conclude that Nebraska’s law must fall," Stevens continued. "For the notion that either of these two equally gruesome procedures performed at this late stage of gestation is more akin to infanticide than the other, or that the State furthers any legitimate interest by banning one but not the other, is simply irrational.”
Six years later, partial-birth abortion returned to the Supreme Court in the case of Gonzales v. Carhart. This time the issue was a federal ban enacted by Congress in 2003. In crafting the federal ban, members of Congress were careful to define a partial-birth abortion—i.e. a D&X abortion—in a way the distinguished it from a D&E abortion.
Specifically, Congress prohibited when a health-care practitioner “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 performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.”
On April 18, 2007, the Supreme Court issued its decision in Gonzales v. Carhart. It again decided the issue 5-4. But this time it ruled in favor of the ban on partial-birth abortion.
Justice Anthony Kennedy wrote the majority opinion, joined by Chief Justice John Roberts, and Justices Clarence Thomas, Samuel Alito, and Antonin Scalia.
This time it was Justice Ruth Bader Ginsburg he wrote a dissenting opinion for the minority in which Justices Stevens, Souter and Breyer joined.
In this dissent in which Stevens joined, Ginsburg quoted Stevens concurrence in Stenberg and echoed his conclusion by calling "irrational" the majority's determination that the state had in interest in protecting a child against a partial-birth abortion.
“In sum, the notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational," Ginsburg wrote.
"The court's defense of the statute provides no saving explanation," she said. "In candor, the Act, and the Court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court and with increasing comprehension of its centrality to women's lives.”
According to the White House blog, the Medal of Freedom was established by President John F. Kennedy in 1963 and is awarded to people who have made “an especially meritorious contribution to the security or national interests of the United States, world peace, cultural or other significant public or private endeavors.”
In addition to what it says about his judicial career, the Medal of Freedom citation for retired Justice John Paul Stevens notes that he won a Bronze Star for his service in the Navy during World War II, before he became a lawyer.
Republican President Gerald Ford appointed Stevens to the Supreme Court in 1975, two years after the court had issued its Roe v. Wade decision. No member of the U.S. Senate voted against Stevens’ confirmation.
“Justice Stevens applied, throughout his career, his clear and graceful manner to the defense of individual rights and the rule of law, always favoring a pragmatic solution over an ideological one,” President Obama said on Monday as he bestowed the Medal of Freedom on the justice.