Indiana Law Review


Indiana Law Review
Volume 35 2002 Number 3

NOTES

The Development of the Undue Burden
Standard in Stenberg v. Carhart: Will
Proposed RU-486 Legislation Survive?

Hilary Guenther*

Introduction

On June 28, 2000, the U.S. Supreme Court ruled on yet another divisiye facet
of the abortion issue. In Stenberg v. Carhart,

1

the Court held that a Nebraska

statute banning partial-birth abortions was unconstitutional.2 In its analysis, the
Court applied the undue burden test from Planned Parenthood v. Casef and
concluded that the Nebraska statute placed a substantial obstacle in the path of

a woman seeking to terminate her pregnancy.4

The Carhart decision marks the Court's first direct application ofthe Casey

holding, which dramatically revamped abortion analysis in 1992. The Casey
Court abandoned the rigid trimester framework set forth in Roe v. Wade5 in favor
ofthe undue burden standard.

6
The Court viewed the standard as a compromise

between state interests in regulating abortion and the fundamental rights of

women to choose to terminate a pregnancy.7 The Court determined that a state
could regulate previability abortion procedures provided that the state had a

compelling interest and that the regulation did not unduly burden the woman's
right to choose.

8 On its face, the undue burden standard appeared to be a fair
way to balance the competing interests. But in practice, the standard has proven
to be vague, difficult to apply, and easily manipulated. The Carhart opinion
provides an example of the difficulties presented by Casey's undue burden

standard.

This Note examines the Carhart opinion in detail, focusing on the individual

* J.D. Candidate, 2002, Indiana University School of Law—Indianapolis; B.A., 1999,

DePauw University.

1. 530 U.S. 914(2000).

2. Id at 922.

3. 505 U.S. 833 (1992).

4. Carhart, 530 U.S. at 930, 945-46.

5. 410 U.S. 113(1973).

6. Casey, 505 U.S. at 873-74.

7. Id at 876.

8. Id at 877-78.



1022 INDIANA LAW REVIEW [Vol. 35:1021

viewpoints of the Justices who wrote the majority, concurring and dissenting
opinions. Part I describes the development of the standards the Court has used

to evaluate abortion legislation. The two central cases on this point are
discussed: Roe and Casey. Part II focuses on the application of the undue
burden standard to the "partial birth abortion" question presented in Carhart.

Part III explores the criticisms surrounding the undue burden standard and the
inconsistencies that exist between the spirit of the Casey decision and the
application of the undue burden standard in Carhart. Finally, Part IV attempts
to consolidate the lessons of Casey and Carhart and apply them to the current
debate over the recently FDA-approved RU-486. This Note also assesses the
constitutionality of proposed state and federal legislation designed to regulate

and limit the drug's availability. Specifically, this Note addresses the
constitutionality of the "RU-486 Patient Health and Safety Protection Act,"9

which is now before both houses of Congress, and the constitutionality of a
similar proposed regulatory statute in Oklahoma.

I. The Standards: From Roe to Casey

The two primary cases setting forth the standards courts have used in
evaluating abortion legislation are Roe v. Wade10 and Planned Parenthood v.
Casey.

u
In Roe, the Court acknowledged that a woman's right to terminate her

pregnancy is part of the fundamental right to privacy found in the Due Process
Clause of the Fourteenth Amendment.

12
Under Roe, any state regulation that

limited this right was subject to a heightened level of scrutiny.
13

The Court
acknowledged that the state had important and legitimate interests in regulating

two areas, the health of the mother and the protection of potential life.
14

These

interests became compelling at different stages in the pregnancy.
15 The state's

9. H.R. 482, 1 07th Cong. (200 1 ).

10. 410 U.S. 113(1973).

11. 505 U.S. 833 (1992).

12. Roe, 410 U.S. at 153. "This right of privacy [found] in the Fourteenth Amendment's

concept of personal liberty and restrictions upon state action ... is broad enough to encompass a

woman's decision whether or not to terminate her pregnancy." Id. Justice Rehnquist wrote a

dissenting opinion in which he argued that a "right" to abortion should not be based on the Due

Process Clause of the Fourteenth Amendment because the "right . . . was apparently completely

unknown to the drafters of the Amendment." Id. at 174 (Rehnquist, J., dissenting). Justice

Rehnquist noted that at the time the Fourteenth Amendment was adopted, "at least [thirty-six] laws

[had been] enacted by state or territorial legislatures limiting abortion," suggesting that "[t]here

apparently was no question concerning the validity of [these statutes] when the Fourteenth

Amendment was adopted. The only conclusion possible from this history is that the drafters did

not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with

respect to this matter." Id. at 175.

13. /</.atl54.

14. Id. at 163-64.

15. Id. at 162-63.



2002] STENBERG v. CARHART 1023

interest in protecting the health ofthe mother became "compelling" at the end of

the first trimester.
16 The Court stated that after this point, a state could regulate

abortion procedures to the extent reasonably necessary to protect maternal

health.
17

Under the Roe scheme, the state's interest in protecting potential human life
did not become compelling until after fetal viability.

18 The Court explained that

at this point in the pregnancy "the fetus . . . presumably has the capability of

meaningful life outside the mother's womb. State regulation protective ofviable
life after viability thus has both logical and biological justifications."

19
Thus, the

Court found that a state could altogether prohibit abortion after a fetus reached

viability, provided that legislation allowed for the procedure to be performed

where it was necessary to preserve the life or health of the mother.
20 To guide

states in their attempt to balance their interests with those ofwomen seeking to
terminate their pregnancies, the Court established a trimester framework:

(a) For the stage prior to approximately the end ofthe first trimester, the

abortion decision and its effectuation must be left to the medical

judgment of the pregnant woman's attending physician.

(b) For the stage subsequent to approximately the end of the first

trimester, the State, in promoting its interest in the health ofthe mother,

may, if it chooses, regulate the abortion procedure in ways that are

reasonably related to maternal health.

(c) For the stage subsequent to viability, the State in promoting its

interest in the potentiality ofhuman life may, if it chooses, regulate, and
even proscribe, abortion except where it is necessary, in appropriate

medical judgment, for the preservation of the life or health of the

mother.
21

In 1992, the Supreme Court revisited the abortion issue in Planned

Parenthood v. Casey.
22

In this decision, the Court dramatically revamped the

standards for evaluating the constitutionality ofabortion legislation. Two factors
contributed to this change in standards. First, by the time Casey was decided, the
Court had lost all but one ofthe members whojoined the majority in Roe v. Wade
and gained new Justices with more socially conservative viewpoints.23 Second,

16. Id. at 163.

17. Id.

18. Id.

19. Id.

20. Id. at 163-64.

21. Id. at 164-65.

22. 505 U.S. 833(1992).

23. In 1 973, the Roe Court consisted ofChiefJustice Burger and Justices Douglas, Brennan,

Powell, Stewart, White, Marshall, Blackmun, and Rehnquist. By 1992, when Casey was decided,

the only remaining members were ChiefJustice Rehnquist and Justices White and Blackmun. The

remaining six seats were filled by Justices Stevens, O'Connor, Scalia, Kennedy, Souter, and

Thomas.



1024 INDIANA LAW REVIEW [Vol. 35:1021

Roe had come under sharp criticism that the application ofits holding had created
a system of "abortion on demand," where the state's interest in protecting the

potentiality of human life had been all but forgotten in the battle to protect a
woman's right to choose.

24
In Casey; the Court was presented with an

opportunity to overturn Roe; instead, the Court sought to effectuate a

compromise between a state's legitimate interest in regulating abortion and a
woman's right to terminate her pregnancy.

25

The Pennsylvania statute at issue in Casey imposed regulations on abortions
through informed consent, parental consent, spousal notification, and recording

and record-keeping requirements.
26

In evaluating these provisions, the Court set

forth a new guideline for determining the constitutionality of abortion
legislation.

27 The Court reaffirmed the essential holding ofRoe, but abandoned
its rigid trimester framework stating that "[t]he trimester framework suffers from

these basic flaws: in its formulation it misconceives the nature of the pregnant

woman's interest; and in practice it undervalues the State's interest in potential
life, as recognized in Roe"29 In its place, the Court adopted the "undue burden"
standard, which allows a state to recognize its interests in the previability stages

ofa woman's pregnancy, provided that the regulation does not have the "purpose
or effect of placing a substantial obstacle in the path of a woman seeking an
abortion of a nonviable fetus."

29
The Court emphasized what it saw as the

essential holding ofRoe: that a woman has a fundamental right to terminate her
pregnancy before viability, and that a state has a legitimate interest in protecting

the potentiality ofhuman life and the health ofthe mother.30 The Court retained
the Roe notions that after the fetus reaches viability, a state may altogether
prohibit abortion so long as a valid health exception is present in the statute, and

that a state "may not prohibit any woman from making the ultimate decision to
terminate her pregnancy before viability."

31

However, under Casey, states have the ability to regulate previability

abortions provided that the regulation does not place an undue burden on a

woman's right to choose.32 The Court gave little guidance on the subject ofwhat

24. See Casey, 505 U.S. at 87 1 . The Casey Court acknowledged that several cases decided

after Roe gave too little weight to legitimate state interests in regulating abortion: "[I]t must be

remembered that Roe v. Wade speaks with clarity in establishing not only the woman's liberty but

also the State's 'important and legitimate interest in potential life.'" Id at 871 (quoting Roe, 410

U.S. at 163). "That portion ofthe decision in Roe has been given too little acknowledgment and

implementation by the Court in its subsequent cases." Id.

25. See id. at 869-79.

26. Id. at 844.

27. Id. at 877.

28. Id. at 873.

29. Id. at 877.

30. Id. at 877-78.

31. Id. at 879.

32. Id. Based on these standards, the Court determined that the informed consent, parental

consent, and record-keeping portions ofthe Pennsylvania statute did not place an undue burden on



2002] STENBERG v. CARHART 1 025

constitutes a "substantial obstacle in the path ofa woman seeking an abortion,"33

but the Court did note that a regulation designed to encourage a woman to choose
not to terminate her pregnancy would be acceptable.

To promote the State's profound interest in potential life, throughout
pregnancy the State may take measures to ensure that the woman's
choice is informed, and measures designed to advance this interest will

not be invalidated as long as their purpose is to persuade the woman to
choose childbirth over abortion. These measures must not be an undue

burden on the right.
34

The Casey decision does not reflect a unified consensus of the Court: the
undue burden standard was set forth in a joint opinion authored by Justices
O'Connor, Kennedy, and Souter. Justices Blackmun and Stevens concurred in

part and dissented in part, taking issue with the plurality's adoption ofthe undue

burden standard. Justice Blackmun wrote:

Strict scrutiny of state limitations on reproductive choice still offers the

most secure protection of the woman's right to make her own
reproductive decisions, free from state coercion. . . . The factual

premises ofthe trimester framework have not been undermined, and the

Roe framework is far more administrable, and far less manipulable, than
the "undue burden" standard adopted by the joint opinion.

35

Further, he argued that the trimester system should be retained because "[n]o

other approach has gained a majority, and no other is more protective of the

woman's fundamental right."
36

Chief Justice Rehnquist, along with Justices White, Scalia, and Thomas,

concurred in thejudgment in part, but also dissented in part, maintaining that Roe
should have been overturned.

37
In a separate opinion, Justice Scalia offered sharp

criticism of the undue burden standard, stating that not only was the standard

easily manipulated, but that it had no foundation in constitutional law: "The

ultimately standardless nature ofthe 'undue burden' inquiry is a reflection ofthe

underlying fact that the concept has no principled or coherent legal basis."
38

a woman's right to choose to have an abortion. Id. at 881-87, 899-901 . The spousal notification

requirement, however, did create an undue burden because of the significant risk of spousal abuse

that could arise if the woman was required to disclose her status to her husband. Id. at 887-98.

33. Id at 878.

34. Id.

35. Id. at 930 (Blackmun, J., concurring in part and dissenting in part) (citation omitted).

36. Id. at 934 (Blackmun, J., concurring in part and dissenting in part).

37. Id. at 944 (Rehnquist, C.J., concurring in part and dissenting in part).

38. Id. at 987 (Scalia, J., concurring in part and dissenting in part).



1026 INDIANA LAW REVIEW [Vol. 35: 1021

II. Applying Casey: Stenberg v. Carhart

A. The Majority Opinion

Casey's undue burden standard came under criticism once again in the latest
U.S. Supreme Court case dealing with yet another controversial facet of the
abortion issue: the "partial birth abortion" debate.

39
In Stenberg v. Carhart,

40
the

Supreme Court invalidated a Nebraska statute banning "partial birth abortions"
on the grounds that the statute placed an undue burden on a woman's right to
choose and that the statute lacked a valid health exception.

41
The majority found

that the statute was broad enough to encompass the two most common types of
second trimester abortion procedures.

42 One ofthe procedures, the dilation and
evacuation method, also known as "D & E," accounts for approximately ninety-
five percent of second trimester abortions.

43 A D & E abortion generally
involves "(1 ) dilation ofthe cervix; (2) removal ofat least some fetal tissue using
nonvacuum instruments; and (3) (after the [fifteenth] week) the potential need for
instrumental disarticulation or dismemberment ofthe fetus orthe collapse offetal

39. The case decided the partial birth abortion issue, which Congress had attempted to

handle several times. In June 1995, Congress introduced a bill designed to ban a type of partial

birth abortion procedure. See Partial-Birth Ban Abortion Act of 1995, H.R. 1833, 104th Cong.

(1995). Both houses passed the bill, but President Clinton vetoed it. H.R. 1 833, 142 Cong. Rec.

D304 (1996). Two years later, Congress passed the Partial-Birth Abortion Ban Act of 1997, but

President Clinton again vetoed it. See H.R. 1 122, 105th Cong. (1997); 143 CONG. Rec. H8892

(1997).

40. 530 U.S. 914 (2000).

41. Id. at 930.

42. Id. at 939-40. The Nebraska statute, in relevant part, stated: "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." Id. at 921-22

(quoting NEB. REV. STAT. ANN. § 28-328(1) (Supp. 1999)). The statute defined partial birth

abortion: "an abortion procedure in which the person performing such abortion partially delivers

vaginally a living unborn child before killing the unborn child and completing the delivery." Id.

(quoting Neb. Rev. Stat. Ann. § 28-326(9) (Supp. 1 999)). The statute further defined partial birth

abortion as a procedure in which the person performs the abortion by "deliberately and intentionally

delivering into the vagina a living unborn child, or a substantial portion thereof, for purposes of

performing a procedure that the person performing the procedure knows will kill the unborn child

and does kill the unborn child." Id.

43. Carhart, 530 U.S. at 924 (citing CTRS. FOR DISEASE CONTROL AND PREVENTION,

Abortion Surveillance—UnitedStates, 1 996, at 4 1 ( 1 999)). It is important to note that ninety

percent of all abortions are performed during the first trimester utilizing the "vacuum aspiration"

method. Id. at 923. The remaining ten percent generally occur during the second trimester

(between twelve and twenty-four weeks), when vacuum aspiration is no longer an effective means

of pregnancy termination due to the fetus' size. Id. at 924.



2002] STENBERG v. CARHART 1 027

parts to facilitate evacuation from the uterus."
44

Another second trimester

procedure is the "D & X."45 The D & X involves the dilation of the cervix, and
the removal of the intact fetus in one of two ways, depending upon the position

ofthe fetus.
46 The D & E and D & X procedures involve collapsing the skull and

evacuating its contents so that the entire fetal mass can pass through the cervix.
47

The State ofNebraska argued that the statute was intended to ban only the more
controversial D & X procedure, not the more commonly employed D & E
procedure.

48

Before evaluating Nebraska's statute, the majority opinion began by

reiterating the Casey analysis. The Court acknowledged that a woman has a
constitutional right to terminate her pregnancy, and that a state has interests in

protecting the health of the mother and the potentiality of human life.
49

The

Court stated that it would apply the undue burden test to evaluate Nebraska's

statute.
50

If the statute placed an undue burden on a woman's right to terminate
her pregnancy in the previability stages, the statute would be declared

unconstitutional.
51

The Court also emphasized the importance of the health
exception requirement in abortion-regulating legislation: "Since the law requires

a health exception in order to validate even a postviability abortion regulation,

it at a minimum requires the same in respect to previability regulation."
52

With this framework in mind, the Court declared Nebraska's statute

unconstitutional.
53

With respect to its invalidation on health exception grounds,

44. Id. at 925 (citing W. HERN, ABORTION PRACTICE 146-56 ( 1 984) and M. Paul et al., A
Clinicians Guide to Medical and Surgical Abortion 133-35 (1999)).

45. The Court also refers to a procedure known as the "intact D & E." Id. at 927. Although
there are technical differences between the intact D & E and the D & X (also known as the dilation
and extraction method) both procedures involve the vaginal removal of an intact fetus, as opposed

to the D & E method which involves the vaginal removal ofdismembered fetal parts. Id. at 927-28
(citations omitted). The Court thus uses "D & X" and "intact D & E" interchangeably. Id.
(citations omitted). For the purposes of this Note, reference to the D & X procedure encompasses
both the D & X and intact D & E procedures.

46. Id.

47. Id.

48. Id. at 938-39. The D & X procedure is the more controversial of the two because,
according to some, it more closely resembles infanticide. Id. at 1006-07 (Thomas, J., dissenting).

Justice Thomas quoted the statement of a nurse who observed the performance of a D & X: "The
baby's little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor

stuck the scissors in the back ofhis head, and the baby's arms jerked out " Id. at 1007 (quoting

Partial-Birth Abortion Ban Act of 1995: Hearing on H.R. 1833 Before the Senate Comm. on the

Judiciary, 104th Cong. 18 (1995) (statement of Brenda Pratt Shafer)).

49. Carhart, 530 U.S. at 921.

50. Id.

51. Id.

52. /d. at 930.

53. Id. at 929-30.



1028 INDIANA LAW REVIEW [Vol. 35:1021

the Court found that the "health exception" language
54
found in the statute was

insufficient to truly protect a woman's right to an abortion.
55

Based on the

record, the Court found that there was evidence that the D & X would, at times,
be the safest form of second trimester abortion.

56
The standard for drafting an

acceptable health exception is that the procedure must be permitted when "'it is
necessary, in appropriate medical judgment for the preservation of the life or

health ofthe mother,' for this Court has made clear that a State may promote but
not endanger a woman's health when it regulates the methods ofabortion."

57
The

Court further stated that "a State cannot subject women's health to significant
risks [where the pregnancy itselfcreates a threat to the mother's health], andalso
where state regulations force women to use riskier methods ofabortion."58 Thus,
the possibility that the D & X procedure might be safer for some women than the
D & E procedure requires that a woman should have access to the D & X when
it is, in fact, the safest abortion procedure for her, as determined by her

physician.
59

After determining that the statute was unconstitutional due to its lack of a
valid health exception, the Court turned to the undue burden analysis. The Court
found that the language ofthe statute was broad enough to impose a ban on both
the D & E and D & X procedures:

Even ifthe statute's basic aim is to ban D & X, its language makes clear
that it also covers a much broader category ofprocedures. The language
does not track the medical differences between D & E and D &
X—though it would have been a simple matter, for example, to provide
an exception for the performance of D & E and other abortion
procedures.

60

The effect of such an interpretation meant that the statute severely constrained

a woman's right to obtain a second trimester abortion:

54. See supra note 42.

55. Carhart, 530 U.S. at 930-3 1

.

56. Id. at 932-38.

57. Id. at 931 (quoting Planned Parenthood v. Casey, 505 U.S. 833, 879 (1992)) (citation

omitted); see also Thornburgh v. Am. Coll. of Obstetricians and Gynecologists, 476 U.S. 747

(1986); Colautti v. Franklin, 439 U.S. 379 (1979); Planned Parenthood v. Danforth, 428 U.S. 52

(1976); Doe v. Bolton, 410 U.S. 179 (1973).

58. Carhart, 530 U.S. at 93 1 (emphasis in original).

59. See id. at 937-39. "[W]here 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.'" Id. at 938 (quoting Casey, 505 U.S. at

879). In determining that the D & X may be a safer procedure in some instances than the D & E,
the Court pointed to the fact that the D & X poses less of a risk to woman's health because fewer
"passes" with sharp instruments need to be made in the woman's uterus in the D & X procedure,
thus lessening the risk of uterine perforation and infection. Id. at 936.

60. Carhart, 530 U.S. at 939.



2002] STENBERG v. CARHART 1 029

[U]sing this law some present prosecutors and future Attorneys General
may choose to pursue physicians who use D & E procedures, the most
commonly used method for performing previability second trimester
abortions. All 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.
61

Thus, the Nebraska statute was found unconstitutional on the basis of an
insufficient health exception and because the statute placed an undue burden in

the path of a woman seeking a second trimester abortion.62

B. The Concurrences

Casey's undue burden standard was followed and applied, but not without
criticism from six members of the Court. Although Justices Stevens and
Ginsburg concurred in the result, Justice Stevens' concurrence,joined by Justice

Ginsburg, illustrated the concern that the undue burden standard could limit a

woman's right to an abortion in a manner inconsistent with the Fourteenth
Amendment:

[T]he word "liberty" in the Fourteenth Amendment includes a woman's
right to make this difficult and extremely personal decision[,] mak[ing]
it impossible ... 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.

63

Additionally, Justice Stevens did not agree that a state's interest in protecting

the potentiality ofhuman life could be served effectively by banning one second
trimester procedure but not the other: "For the notion that either of these two
equally gruesome procedures performed at this late stage of gestation is more

61

.

Id. at 945-46. It is important to note that although the D & E and the D & X are the
most common and safest forms ofsecond trimester abortions, other forms have been used, such as

a labor-inducing procedure that involves the injection of saline into the uterus. See id. at 924

(citing Cms. for Disease Control Prevention, Abortion Surveillance—United States,
1996, at 8 (1999)).

62. It is significant that at the time of this decision, thirty states had statutes similar to the

one at issue in Carhart. Richard W. Garnett, The Courts and Abortion, if the Supreme Court

Overturns Nebraska 's Ban on Partial-birth Abortion, the Rationale Could Be Even Scarier Than

the Decision, The Wkly. Standard, June 12, 2000, at 23. Immediately following the decision,

statutes prohibiting "partial birth abortions" were struck down in several states, including Louisiana

(see Causeway Med. Suite v. Foster, 221 F.3d 811 (5th Cir. 2000)); New Jersey (see Planned
Parenthood v. Farmer, 220 F.3d 127 (3rd Cir. 2000)); Ohio (see Women's Med. Prof 1 Corp. v.

Taft, 162 F. Supp. 2d 929 (S.D. Ohio 2001)); and Virginia (see Richmond Med. Ctr. for Women
v. Gilmore, 224 F.3d 337 (4th Cir. 2000)).

63. Carhart, 530 U.S. at 946 (Stevens, J., concurring).



1030 INDIANA LAW REVIEW [Vol. 35:1021

akin to infanticide than the other, or that the State furthers any legitimate interest

by banning one but not the other is simply irrational."
64

Thus, he implied that

there is no room for states' interests in regulating previability abortions, even
though the undue burden standard provides for courts to take those interests into

account.
65

Justice Ginsburg, in a concurring opinion joined by Justice Stevens, stated
that the Nebraska statute was designed to chip away at the rights protected by
Roe v. Wade and modified by Casey.** Her concurrence endorsed a restatement
ofthe undue burden standard as formulated by ChiefJudge Posner ofthe Seventh
Circuit: "[I]fa statute burdens constitutional rights and all that can be said on its

behalf is that it is the vehicle that legislators have chosen for expressing their

hostility to those rights, the burden is undue."
67

Justice O'Connor's concurrence sought to clarify the positions set forth in

the majority opinion and defended the Casey undue burden standard.
68
Although

the Nebraska statute offered language resembling a "health exception," Justice
O'Connor reiterated the point that it was not broad enough to adequately protect
a woman's right to choose:

Because even a postviability proscription of abortion would be invalid

absent a health exception, Nebraska's ban on previability partial-birth

abortions, under the circumstances presented here, must include a health
exception as well, since the State's interest in regulating abortions before

viability is "considerably weaker" than after viability. The statute at
issue here, however, only excepts those procedures "necessary to save

the life of the mother whose life is endangered by a physical disorder,
physical illness, or physical injury." This lack of a health exception

necessarily renders the statute unconstitutional.
69

With respect to the undue burden standard, she stated that banning both the
D & E and the D & X procedures placed an undue burden on a woman's ability
to choose to terminate her pregnancy.

70
She then took the analysis one step

further, offering guidance to states thatmaywish to proscribe a particular method
of partial birth abortion:

Ifthere were adequate alternative methods for a woman safely to obtain
an abortion before viability, it is unlikely that prohibiting the D & X
procedure alone would "amount in practical terms to a substantial
obstacle to a woman seeking an abortion." Thus, a ban on partial-birth

64. Id. at 946-47 (Stevens, J., concurring).

65. See id. (Stevens, J., concurring).

66. Id. at 951-52 (Ginsburg, J., concurring).

67. Id. at 952 (Ginsburg, J., concurring) (quoting Hope Clinic v. Ryan, 1 95 F.3d 857, 881

(7th Cir. 1999) (Posner, C.J., dissenting)).

68. See id. at 947 (O'Connor, J., concurring).

69. Id. at 948 (O'Connor, J., concurring) (citations omitted).

70. See id. (O'Connor, J., concurring).



2002] STENBERG v. CARHART 1 03

1

abortion that only proscribed the D & X method of abortion and that
included an exception to preserve the life and health ofthe mother would

be constitutional in my view.71

C. The Dissents

In his dissent, Justice Scalia sharply criticized the Carhart majority opinion.

He began by expressing his wish that this case someday be placed in the same
category as Korematsu v. UnitedStates

11
and DredScott v. Sanford.

13 He stated
that this case represents a valid application of Casey's undue burden standard,

74

but pointed out that the standard represents nothing more than the value
judgments ofthe Justices.

75
In so doing, he ultimately criticized the foundation

of Casey:

In the last analysis, my judgment that Casey does not support today's
tragic result can be traced to the fact that what I consider to be an "undue

burden" is different from what the majority considers to be an "undue

burden"—a conclusion that can not be demonstrated true or false by
factual inquiry or legal reasoning. It is a value judgment, dependent

upon how much one respects ... the life of a partially delivered fetus,
and how much one respects ... the freedom of the woman who gave it
life to kill it.

76

In contrast, Justice Kennedy's dissenting opinion, joined by Chief Justice

Rehnquist, suggests that the undue burden standard may be a workable test;
however, he believed that the court misapplied Casey's holding.

77
Justice

Kennedy stated that "[t]he Court's decision . . . invalidates] a statute advancing
critical state interests, even though the law denies no woman the right to choose
an abortion and places no undue burden upon that right. The Nebraska statute
"expresse[d] a profound and legitimate respect for fetal life," and left open

several other avenues for women seeking to obtain abortions—the ban did not
mean that women could not obtain abortions, but merely that they could not
obtain a specific type of procedure.

78
According to Justice Kennedy, Casey

explicitly authorized states to use the legislative process in order to display moral

concerns; such an expression is not unconstitutional so long as the woman's right

71. Id. at 951 (O'Connor, J., concurring) (quoting Casey, 505 U.S. at 884 (citation

omitted)).

72. 323 U.S. 214 (1944).

73. 60 U.S. 393 (1857). Both Korematsu and Dred Scott are now viewed as two of the

Court's most infamous missteps.

74. Carhart, 530 U.S. at 953 (Scalia, J., dissenting).

75. Id. at 954-55 (Scalia, J., dissenting).

76. Id. (Scalia, J., dissenting).

77. See id. at 957 (Kennedy, J., dissenting).

78. Id. at 956-57 (Kennedy, J., dissenting).



1032 INDIANA LAW REVIEW [Vol. 35:1021

to choose is not unduly hampered.
79

In this instance, a woman's right to choose
was not unduly hampered because the language of the Nebraska statute clearly
operated to ban only the D & X procedure.80 "The legislation is well within the
State's competence to enact."

81
Justice Kennedy also argued that the rules of

statutory construction would show that the statute was meant to apply to only the
more gruesome and disturbing D & X procedure, not the D & E procedure.82 He
emphasized the point that according to Casey, states have a valid interest in

expressing concern for unborn life.
83

States also have an interest in forbidding

medical procedures that may cause the medical profession to become disdainful
of life.

84
Thus, according to Justice Kennedy, Nebraska had the right to draw a

moral distinction between the two procedures and prohibit the more gruesome D
& X.85 In his view, simply because the D & E is also a disturbing procedure does
not mean that the state accomplishes nothing in banning the D & X: "D & X's
stronger resemblance to infanticide means Nebraska could conclude the
procedure presents a greater risk of disrespect for life and a consequent greater

risk to the profession and society, which depend for their sustenance upon

reciprocal recognition of dignity and respect."
86

Justice Kennedy then criticized the "health exception" ground for
invalidating the statute, stating that giving physicians the broad latitude to escape

application ofa statute simply by exercising "medical judgment" would in effect
vitiate the legislature's purpose in enacting the statute: "Requiring Nebraska to

defer to [the physician's]judgment is no differentthan forbidding Nebraska from

enacting a ban at all; for it is now [the physician] who sets abortion policy for the
State ofNebraska, not the legislature or the people."

87

Justice Thomas also disliked this case's application ofthe standards set forth
in Casey. Joined by Chief Justice Rehnquist and Justice Scalia, he began by

stating that Casey's undue burden standard has no constitutional roots and is not

the appropriate standard for determining the constitutionality of abortion

legislation.
88 Thomas continued that, even ifthe undue burden standard must be

applied, the Court misapplied it in this instance.
89

Justice Thomas maintained
that majority ignored the rules of statutory construction: "The majority . . .

rejected] the plain language of the statutory definition, refuse[d] to read that

definition in light of the statutory reference to 'partial birth abortion,' and

79. See id. at 979 (Kennedy, J., dissenting).

80. See id. at 989-97 (Kennedy, J., dissenting).

81. Id. (Kennedy, J., dissenting).

82. See id. at 973-77 (Kennedy, J., dissenting).

83. Id. at 961 (Kennedy, J., dissenting).

84. Id. at 961-62 (Kennedy, J., dissenting).

85. Id. at 962 (Kennedy, J., dissenting).

86. Id. at 963 (Kennedy, J., dissenting).

87. Id. at 965 (Kennedy, J., dissenting).

88. Id. at 982 (Thomas, J., dissenting).

89. Id. at 982-83 (Thomas, J., dissenting).



2002] STENBERG v. CARHART 1 033

ignorefd] the doctrine of constitutional avoidance."
90

Furthermore, Justice

Thomas assumed that states have an interest in regulating or banning the D & X
procedure. He relied on the detailed and graphic description ofthe procedure91

to make his point: "The question whether States have a legitimate interest in
banning the procedure does not require additional authority."

92
Thus, because the

statute did not prohibit the D & E procedure and the state had an obvious
compelling interest in banning the D & X, there was no undue burden on the
woman's ability to choose abortion.

93

III. The Undue Burden Standard: The Lessons of Casey and Carhart

The undue burden standard, as set forth in Casey and applied in Carhart, has

been criticized sharply not only by individual members of the U.S. Supreme
Court, but also by legal scholars on both sides of the abortion issue.

Conservative, pro-life activists have stated that the undue burden standard is

unworkable and too easily manipulated by thejudges who apply it, thus limiting
states' abilities to express their interests in fetal life.

94
They take the position that

it is a vague standard that calls for judicial value judgments rooted in ethics

rather than law.
95

Pro-choice activists are also critical of the standard. Many
take the position that the undue burden standard as presented in Casey represents

an attempt by moderates and conservatives to chip away at a woman's
fundamental right to choose how to terminate her pregnancy.96

However, the undue burden standard is not without its supporters. Some
commentators applaud the standard as a reasonable compromise between the

interests ofwomen and the states. They note that Casey's undue burden standard
presents an opportunity for states to express their interests and ensures that

women can make fully informed choices, thus encouraging their informed
consent to the procedure.

97 Some argue that the Casey standard encourages
political speech and allows the state to help women "structure" their decision-
making process.

98

In trying to reconcile the lessons of Casey and Carhart, it is difficult to

predict what types of regulations the Court will strike down in the future. It is
important to note that the Carhart opinion did not present a united court. Rather,

it was a 5-4 decision in which the Casey undue burden standard was criticized by

90. Id. at 997 (Thomas, J., dissenting).

9 1

.

See supra note 48.

92. Carhart, 530 U.S. at 1007 (Thomas, J., dissenting) (internal citation omitted).

93. See id. at 1005-06 (Thomas, J., dissenting).

94. Valerie J. Pacer, Note, Salvaging the Undue Burden Standard—Is It a Lost Cause? The

Undue Burden Standard and Fundamental Rights Analysis, 73 Wash. U. L.Q. 295, 295 (1995).

95. Id.

96. Id.

97. Robert D. Goldstein, Reading Casey: Structuring the Woman's Decisionmaking

Process, 4 Wm. & MARY BILL Rts. J. 787, 797 (1996).
98. See id.



1034 INDIANA LAW REVIEW [Vol. 35:1021

a majority of the Justices, suggesting that the issue of how to evaluate abortion
regulations will continue to be contentious. Most scholars have interpreted
Casey as an affirmation or recognition ofstates' interests in protecting the health
of the mother and the potential life of the unborn fetus." However, as
commentators have pointed out, the Casey Court failed to firmly set forth a set
of state interests that would justify interference with a woman's right to choose:
"One might expect that before the Court would so fundamentally depart from
traditional due process analysis, it would have a firm grasp of the state interest
that led it to do so. But the Casey opinion contains many conclusions with little
analysis."

100

The Carhart majority decision does little to clarify the situation. An
attempted synthesis ofthe Casey and Carhart decisions suggests that the Court
acknowledges that states have a compelling interest in protecting fetal life.

However, an examination of the majority opinion shows that the Justices gave
little weight to Nebraska's interest. The Court simply stated in a somewhat
conclusory fashion that the statute placed an undue burden on a woman's right
to choose.

101 The Court also failed to present states with any guidance on how
to draft legislation that expresses their interests without placing an undue burden

on a woman's right to choose. The Stevens concurrence suggests that there is
absolutely no valid state interest that can justify regulating previability
abortions.

102
Justice O'Connor's concurrence offers a little help, stating that a

statute that banned just one and not both of the second trimester procedures

would be constitutional.
103

On the other hand, it is important to remember that the holding of Casey
mandates that courts give at least some weight to state interests in evaluating
abortion legislation.

104
The Carhart majority barely mentioned the interests that

led Nebraska to enact this statute. Thus, the Carhart decision did little to clarify

the murky and malleable undue burden standard set forth in Casey. States are
left with little guidance in drafting abortion legislation.

Nonetheless, Carhart does seem to stand for the proposition that an outright

prohibition on certain methods of abortion is unconstitutional if those methods

are the only ones available to a woman at a certain time in her pregnancy. 105

However, such a rule seems obvious and offers little help to states drafting

legislation that falls somewhere short of expressing an outright ban on an

abortion procedure. Alternatively, the Carhart decision may be read to

99. Mark H. Woltz, A Bold Reaffirmation? Planned Parenthood v. Casey Opens the Door

for States to Enact New Laws to Discourage Abortion, 71 N.C. L. Rev. 1 787, 1806 (1993).

1 00. Annette E. Clark, Abortion and the Pied Piper ofCompromise, 68 N.Y.U. L. REV. 265,

321 (1993) (footnote omitted).

101

.

See Stenberg v. Carhart, 530 U.S. 914, 922 (2000).

1 02. See id. at 946 (Stevens, J., concurring).

1 03

.

See id. at 950-5 1 (O'Connor, J., concurring).

104. See Planned Parenthood v. Casey, 505 U.S. 833, 843 (1992).

1 05. See Carhart, 530 U.S. at 945-46.



2002] STENBERG v. CARHART 1 03 5

invalidate any state ban on a particular previability abortion procedure.
106

From the holdings of Casey and its pre-Carhart progeny, it appears that
regulations designed to aid women in the informed consent process, regulations
dealing with parental consent and notice, and regulations dealing with record-

keeping requirements are constitutional.
107 On the other hand, under Casey and

Carhart, statutes dealing with spousal notification and statutes prohibiting

particular types of second-trimester abortion procedures fail to pass the undue

burden test.
108

IV. CARHARTAND THE RU-486 DEBATE

It is difficult to predict what types of regulations in the future will represent

a state's valid furtherance ofa compelling interest and what types of regulations

will present undue burdens. Carhart left a number of questions unanswered.
Does the banning ofa particular previability method ofabortion always place an
undue burden in the path of a woman seeking an abortion, as Justice Stevens
suggests?

109
Or is an undue burden presented only where the method in question

is the only safe method available, as Justice O'Connor suggests?
110

It is unclear

which path the Court will adopt. The next section will focus on proposed RU-
486 legislation and will assess the constitutionality ofthese bills using the undue
burden framework presented in Casey and Carhart. Additionally, this section

will show how important the resolution ofthis dilemma created by Carhart is to
the unique issues presented by RU-486.

A. How RU-486 Works

On September 28, 2000, the United States Food and Drug Administration
approved the drug mifepristone,

111 commonly known as RU-486, for use as an
abortifacient.

112 The drug was approved for use in France in 1988, but it has met
with considerable opposition in the United States.

113 The FDA's approval ofRU-

106. See id. at 940-41.

107. See id.; see also Casey, 505 U.S. 833 (1992); Majurek v. Armstrong, 520 U.S. 968

(1997).

1 08. See Carhart, 530 U.S. at 922; Casey, 505 U.S. at 877.

1 09. See Carhart, 530 U.S. at 946 (Stevens, J., concurring).

1 10. See id. at 951 (O'Connor, J., concurring).

111. "In the United States, the brand name for mifepristone is Mifeprex™, which is

manufactured by Danco Laboratories, LLC " Mifepristone: Expanding Women's Options
for Early Abortions, Mifepristone Fact Sheet, at http://www.plannedparenthood.org/

library/ABORTION/Mif_fact.html (last visited Nov. 1 1 , 2001 ) [hereinafter EXPANDING WOMEN'S

Options].

112. Id.

113. See Daniel S. Levy, A Long Journey, Time, Oct. 9, 2000, at 42. In June 1 989, President

Bush issued a ban on the import ofthe drug, which was lifted in 1 993 when President Clinton came

into office. In 1996, the Population Council filed a new-drug application with the FDA, and the

drug was approved in 2000. Id.



1036 INDIANA LAW REVIEW [Vol. 35:1021

486 contains relatively few restrictions on its distribution.
114

The drug's label
states that

[treatment with Mifeprex and misoprostol for the termination of

pregnancy requires three office visits by the patient. Mifeprex should be

prescribed only by physicians who have read and understood the
prescribing information. Mifeprex may be administered only in a clinic,
medical office, or hospital, by or under the supervision of a physician,

able to assess the gestational age of an embryo and to diagnose ectopic
pregnancies. Physicians must be able to provide surgical intervention in

cases of incomplete abortion or severe bleeding, or have made plans to
provide such care through others, and be able to assure patient access to

medical facilities equipped to provide blood transfusions and

resuscitation, if necessary.
115

Additionally, the drug has been approved for use only through the first forty-nine

days ofpregnancy; thereafter, a woman seeking to terminate her pregnancy must
opt for a surgical abortion.

116

B. The Significance ofRU-486 as New Technology

To fully understand the dimension RU-486 adds to the abortion debate, it is
necessary to set forth the characteristics that make it fundamentally different
from surgical abortion. There is a compelling argument that new regulations will
place an undue burden on a woman's right to choose to terminate her pregnancy,
due in large part to the unique nature of this particular method of abortion.

Although medical abortion requires three visits to the doctor's office, as opposed

to the one visit necessary for surgical abortions, medical abortion is a non-

invasive means of pregnancy termination requiring significantly less expertise
than that required ofsurgical abortions.

1 17 The difference is between taking a pill

1 1 4. Mifeprex Tablets Label at http://www.fda.gov/cder/foi/label/2000/20687lbl.htm (last

visited Nov. 11,2001).

115. Id. The "medical abortion'* (rather than "surgical abortion") occurs after the

administration of two different drugs. At the healthcare provider's office, the patient is given

600mg of mifepristone in a single oral dose. Two days later, the patient returns to the health care

provider and is evaluated to determine whether the embryo has been expelled. If not, then 400mcg

of misoprostol are administered orally. This dosage is necessary for most patients. Soon after the

administration of the misoprostol, the embryo is expelled in what amounts to a "heavy period."

About fourteen days after mifepristone is administered, the patient is required to return to her health

care provider for a check-up to determine whether a complete termination of the pregnancy has

occurred. Thus, according to the FDA, a total of three office visits are required for a complete

medical abortion. Id.

116. See id.

117. Expanding Women's Options, supra note 1 1 1 . See also Elizabeth A. Si I verberg, Note,

Looking BeyondJudicial Deference to Agency Discretion: A Fundamental Right ofAccess to RU-

486?, 59 Brook. L. Rev. 1551, 1559 (1994).



2002] STENBERG v. CARHART 1 03 7

and undergoing surgery. That fundamental difference is the attraction and the

advantage of RU-486."
8

It allows women to terminate their pregnancies
discreetly, with the actual expulsion of the embryo occurring in the privacy of
their own homes. 119 Another major attraction is RU-486's availability through
virtually any gynecologist or family practitioner.

120
These means are far more

available than surgical abortions.
121

According to women who participated in the clinical trials for RU-486 prior
to the drug's approval, the major lure ofthe drug was privacy and control.

122 One
woman, who had undergone a surgical abortion several years prior to her
experience with RU-486 stated, "The whole experience was much less traumatic
than my surgical abortion. ... I felt much more in control and calmer being at
home It made all the difference." 123 Another woman found her experience
with the RU-486 clinical trials to be more positive than surgical abortion: "I
didn't want to just lie back on a table and have something done to me When
you have an unplanned pregnancy, control is really important. I wanted to be
involved."

124

Thus, although the complete "medical abortion" requires three trips to the

doctor's office, women involved in the clinical trials found that the extra trips far
outweighed the "baggage" associated with obtaining a surgical abortion.

125

Because the drug can be prescribed and administered in the doctor's office ofany

physician meeting the FDA requirements—most general practitioners and
gynecologists are qualified

126—the pills can be obtained discreetly, conveniently,
and without the necessity ofcrossing the picket lines surrounding most abortion
clinics.

127
In effect, the drug could bring about what some commentators term

"anonymous abortions."
128 Women with access to the drug may not be faced

with the potential public condemnation associated with surgical abortions.
129

1 1 8. See Silverberg, supra note 11 7, at 1 559.

119. Id.

1 20. See EXPANDING WOMEN'S OPTIONS, supra note 111.

121. Id.

1 22. Id. See also Dana Hudepohl, RU-486: Not Just an Abortion Drug. Could It Save Your

Life? Glamour, Jan. 2001, at 126.

123. Id. at 194.

1 24. Noelle Howey, What You Can Learnfrom MyRU-486 Abortion, SELF, Apr. 2000, at 97.
1 25. Hudepohl, supra note 1 22, at 1 27.

1 26. See Nancy Gibbs, The Abortion Pill, TIME, Oct. 9, 2000, at 40.

1 27. Hudepohl, supra note 1 22, at 1 27.

1 28. David Whitman & Stacey Schultz, A Little Pill but a Big Dispute, U.S. News&World
Report, Oct. 9, 2000, at 18, available at LexisNexis, U.S. News & World Report File.

129. Id. One commentator stated that

[t]he abortion pill may also lessen the stigma of abortion and public qualms about the

procedure. In many cases, drug-induced abortions will take place in patients' homes

after they take RU-486 and misoprostol, and they will generally occur earlier in the

pregnancy than surgical abortions. Opinion polls consistently show that Americans find

abortions in the first few weeks of pregnancy less troubling than those performed in the



1038 INDIANA LAW REVIEW [Vol. 35:1021

The convenience of RU-486 attracts other women, especially those in rural
areas.

130 Due to pro-life protests, the number of abortion clinics has decreased,
making it difficult for many women to obtain surgical abortion. "Protesters can
now easily identify abortion providers, and the picketing, harassment, and
incidents ofviolence—including the murders ofthree doctors—have thinned the
ranks of clinics, hospitals, and physicians offering abortions in recent years."

131

Furthermore, women in rural areas typically have to drive long distances to
obtain surgical abortions.

132
RU-486, on the other hand, may be obtained through

a local family practitioner or gynecologist.

An additional difference between surgical abortions and RU-486 is that
medical abortions can be performed earlier in pregnancy than surgical

abortions.
133

Thus, a woman with access to RU-486 need not delay her decision
until surgery can be performed.

134

C. Proposed Regulatory Statutes and Undue Burden Analysis

The approval of RU-486 places the abortion debate on an entirely different
plane than it was at the time Casey and Carhart were decided. The undue burden
analysis was developed with only surgical abortions in mind. The privacy and
control associated with the drug and its potential widespread availability make
RU-486 an attractive option for women seeking to terminate an early pregnancy.
With access to this new technology as open as many anticipate it will be,

135
will

any regulation place an undue burden on a woman's right to choose? The answer
depends in large part upon how one reads the Carhart opinion. Ifone adopts the
O'Connor view, 136 then a ban on RU-486 would not place an undue burden on a
woman's right to choose. However, ifthe Carhart opinion is interpreted to mean
that a ban on any form of previability abortion places an undue burden on a

woman's right to choose, then proposed RU-486 legislation will not survive.
The Supreme Court had an opportunity to determine whether denial ofaccess

to RU-486 placed an undue burden on a woman's right to choose to terminate her
pregnancy in Benten v. Kessler.

131
This case came before the Court in 1992,

before the FDA approved RU-486. 138 In Benten, a woman tried to import the

second or third trimesters.

Id.

130. See id.

131. Id. "Nationwide, the number of abortion facilities fell from 2380 in 1992 to 2042 in

1996 . . . ." Id.

132. Id.

133. See id.

134. Id.

135. A survey conducted found that "44 percent of gynecologists and 3 1 percent of family
practitioners would be at least 'somewhat likely' to prescribe RU-486." Id.

136. See Stenberg v. Carhart, 530 U.S. 914, 951 (2000) (O'Connor, J., concurring).

1 37. 505 U.S. 1084 (1992) (application to vacate stay denied).

138. Id.



2002] STENBERG v. CARHART 1039

drug from Europe in order to terminate her pregnancy.'
39

Federal officials

confiscated the supply of the drug, and the Supreme Court upheld the

confiscation.
140 However, Justice Stevens argued that the government's

confiscation ofthe drug placed an undue burden on the woman's constitutionally
protected right to abort her pregnancy.'

41
In response, the majority stated that it

expressed "no view on the merits of this assertion."
142

Thus, the question of

whether regulating a woman's access to the drug places an undue burden on her
right to choose is still open.

On October 4, 2000—mere days after the drug's FDA approval—politicians
introduced a bill in both houses of Congress designed to "require the Food and

Drug Administration to establish restrictions regarding the qualifications of
physicians to prescribe the abortion drug commonly known as RU-486."143 The
proposed statute, known as the "RU-486 Patient Health and Safety Protection
Act," reads in pertinent part:

With respect to the application that was submitted under section

505(b) of the Federal Food, Drug, and Cosmetic Act for the drug

mifepristone (commonly referred to as RU-486, to be marketed as
MIFEPREX), and that was approved on September 28, 2000, the
Secretary of Health and Human Services, acting through the
Commissioner ofFood and Drugs, shall promptly modify the conditions

of the approval of such drug to establish the additional restriction that

the drug may not be prescribed by any person other than a licensed
physician who meets the following requirements:

( 1

)

The physician is qualified to handle complications resulting from
an incomplete abortion or ectopic pregnancy.

(2) The physician has been trained to perform surgical abortions and

has met all applicable legal requirements to perform such abortions.

(3) The physician is certified for ultrasound dating ofpregnancy and
detecting ectopic pregnancy.

(4) The physician has completed a program regarding the prescribing

of such drug that uses a curriculum approved by the Secretary.

(5) The physician has admitting privileges at a hospital to which the
physician can travel in one hour or less, determined on the basis of

starting at the principal medical office of the physician and traveling to

the hospital, using the transportation means normally used by the
physician to travel to the hospital, and under the average conditions of

139. Id. at 1084.

140. Id. at 1084-85.

141. Id. at 1 085-86 (Stevens, J., dissenting).

142. Id. at 1085.

143. RU-486 Patient Health and Safety Protection Act, H.R. 482, 107th Cong. (2001); S.R.

25 1 , 1 07th Cong. (200 1 ). This bill was referred to the House Committee on Energy and Commerce

on February 7, 2001.



1040 INDIANA LAW REVIEW [Vol. 35:1021

travel for the physician.
144

Under the undue burden standard presented in Casey and applied in Carhart,
it is likely that such a bill would survive a constitutional challenge, given its
emphasis on procedural safety. This statute sets forth what appear to be
reasonable guidelines aimed at protecting women's safety.

Under Justice O'Connor's view in Carhart, the bill will not place an undue
burden on a woman's right to choose.

145 An argument could be made that these
regulations fall into the same category as those rules upheld in Casey:
regulations aimed at informed consent, parental notification, and waiting

periods.
146 Those regulations upheld in Casey were designed to ensure that

women received adequate information about their choice; additionally, none of
the restrictions had the effect of placing the woman's health in jeopardy. 147

Similarly, the guidelines set forth in the proposed congressional bill are aimed

at protecting a woman's health by placing additional requirements on the treating
physician, not by placing additional burdens on a woman seeking an abortion. 148

Additionally, these requirements merely duplicate many of the requirements
already in place upon physicians who perform surgical abortions. 149 Thus, at the
very least, it would be no more difficult for a woman to obtain an abortion under
this bill than it ever has been, indicating that the proposed regulations do not

place an undue burden on a woman's right to choose to terminate her pregnancy.
However, if Justice Stevens' position in Carhart

150
is followed, then these

regulations could be seen as an undue burden on a woman's right to choose. The
advantages ofRU-486—control, privacy, and availability in rural areas 151—may
be negated by a bill ofthis sort. The drug is currently available through general
practitioners, many of whom may not meet the requirements of the bill. If the
bill passes, then it could strike a major blow to the availability of the drug and

place an undue burden on a woman's ability choose terminate her pregnancy,
especially in rural areas. A woman who would have had access to the drug
though her family doctor would then have to travel to an abortion clinic where
her privacy and control will be compromised. For many rural women, the

144. Id.

145. Under Casey and Carhart, this proposed bill would place an undue burden on a

woman's right to choose to terminate her pregnancy only if the restrictions have the purpose or

effect of placing a substantial obstacle in the path of a woman seeking an abortion. See Planned

Parenthood v. Casey, 505 U.S. 833, 879 (1992); CarharU 530 U.S. at 947-52.

1 46. See Casey, 505 U.S. at 879.

147. See id.

148. See RU-486 Patient Health and Safety Protection Act, H.R. 482, 107th Cong. (2001).

1 49. See Expanding Women's Options, supra note 111.

1 50. See Carhart, 530 U.S. at 946 (Stevens, J., concurring). Justice Stevens suggested that

there was no room for states' interests in regulating previability abortions, even though the undue

burden standard provides for courts to take those interests into account. Id. (Stevens, J.,

concurring).

151. See Expanding Women's Options, supra note ill.



2002] STENBERG v. CARHART 1 04

1

prospect of traveling to an abortion clinic may place a substantial obstacle in
their paths to terminate their pregnancies.

Furthermore, RU-486 can be used earlier than most surgical abortions can be
performed.

152
This bill could limit prescription privileges of the drug to

essentially the same individuals who are licensed to perform surgical abortions.
Women who wish to terminate their pregnancies early but cannot obtain access
to the drug will be forced to wait until the pregnancy has proceeded to the point

where only a surgical abortion may be performed.
153

Therefore, a bill limiting

the drug's availability may place an undue burden on a woman's ability to choose
when to terminate her pregnancy. However, even if a court accepts that the
regulations may make it more difficult for women to get RU-486, the compelling
state interest of protecting the health of the mother will probably be cited as a

reason for justifying the regulations imposed by Congress.

Another type of proposed regulation offered from states appears in the form

ofan outright ban ofthe drug. On January 4, 2001 , a bill banning the distribution
of RU-486 in the state of Oklahoma was presented before the Oklahoma
legislature:

A. It shall be unlawful for any person to prescribe, dispense,

distribute, or otherwise make available mifepristone (RU-486) in this
state.

B. Any person violating the provisions of this section, upon
conviction thereof, shall be guilty of a felony.

C. Any person, authorized by the laws of this state to prescribe,
dispense, or distribute medicine in this state, prescribing, dispensing,

distributing, or otherwise making available mifepristone (RU-486) in this

state, in violation of the provisions of this section, shall be subject to

license suspension, revocation, or other administrative penalties by the

state administrative licensing entity.
154

When faced with a ban on a particular abortion procedure, it becomes evident
through Carhart that the undue burden standard is not the best vehicle for

analyzing the constitutionality ofthis proposal. Under the trimester framework

ofRoe, such an outright ban clearly would have been unconstitutional. Because

the drug has been approved only for use during the first forty-nine days of

pregnancy—well within the first trimester

—

Roe would have unconditionally
protected a woman's right to terminate her pregnancy using RU-486.

Under Casey and Carhart however, the constitutionality of Oklahoma's
proposed statute is less clear.

155 The Casey Court abandoned the trimester system

1 52. Howey, supra note 1 24, at 97-98.

153. See id.

154. H.B.I 038, 48th Leg., 1 st Sess. § 1 (Okla. 200 1 ). This bill was referred to the Oklahoma

House Committee on Public Health on February 6, 2001

.

1 55. Although this discussion is limited to the statute's constitutionality according to Casey's

and CarharVs undue burden standards, the state's outright ban may have other constitutional

problems in terms ofeffectively "overruling" the FDA where it appears that the FDA has preempted



1042 INDIANA LAW REVIEW [Vol. 35:1021

and held that states may regulate previability abortions to achieve a compelling
state interest provided that the regulation does not present an undue burden on

a woman's right to choose.
156 The Carhart majority opinion, which also

considered an outright ban on a particular abortion procedure, provided little

guidance in setting forth standards for states wishing to establish abortion

regulations. At the very least, the Court appears to have held unconstitutional

any outright ban on partial birth abortion procedures in the absence of other

available means of pregnancy termination.
157

This statement reflects Justice

O'Connor's concurrence. Thus, a logical corollary to this rule might be as

follows: Where other means ofpregnancy termination are available to a woman
seeking a particular abortion procedure, the state may prohibit that procedure if
it has a compelling state interest. Because RU-486 is merely one type ofabortion
method, banning RU-486 would be constitutional if the state had a compelling
interest.

Under Justice O'Connor's view, it would be permissible for a state to ban the
use of RU-486 if it could show a compelling state interest for doing so. 158 Such
an action would not unduly burden a woman's right to choose to terminate her
pregnancy because surgical abortions would still be available to her. The two
primary interests states use to justify abortion regulations are protecting the

health of the mother and protecting fetal life.
159 Oklahoma could argue that the

ban on RU-486 furthers the state interest of protecting the health ofthe mother,
an interest that the Supreme Court has recognized as compelling.

160
Because the

actual expulsion of the embryo occurs without medical supervision,
161

the state

could argue that an abortion induced by RU-486 places the mother's safety at
risk. Additionally, because most general practitioners can prescribe the drug

under the FDA guidelines, the state could argue that the woman risks obtaining
the drug from a physician not qualified to handle the complications that could

arise from the induced miscarriage. Although the Court would probably

recognize these interests, it is important to note that they may be achieved in a
less restrictive way through a regulatory statute such as the RU-486 Patient
Health and Safety Protection Act.

162

The state also may argue that the interest of protecting fetal life would
validate the ban on RU-486. However, such an argument was not accepted in
Carhart, where the interest in fetal life was arguably more compelling because
the abortion procedure in question affected more fully developed fetuses. 163

Studies have shown that individuals find early abortions more "acceptable" than

state action. Silverberg, supra note 1 17, at 1600.

1 56. Planned Parenthood v. Casey, 505 U.S. 833, 872 ( 1 992).

157. See Stenberg v. Carhart, 530 U.S. 914, 951 (2000) (O'Connor, J., concurring).

1 58. Id. at 947-52 (O'Connor, J., concurring).

159. See id. (O'Connor, J., concurring).

160. See id. (O'Connor, J., concurring).

161. See Expanding Women's Options, supra note 111.

162. H.R.482, 107th (2001).

1 63. See Carhart, 530 U.S. at 922.



2002] STENBERG v. CARHART 1043

late term abortions, reflecting the societal view that the interest in fetal life

becomes more compelling as the pregnancy progresses.
164

Thus, it is unlikely

given the Court's decision in Carhart not to uphold Nebraska's partial birth

abortion statute that it would uphold Oklahoma's statute. Nonetheless, under

Justice O'Connor's view* this statute would probably be constitutional because

other means offirst trimester abortions would still be available to women seeking
to terminate a pregnancy.

However, the Carhart majority opinion might be interpreted to mean that any
outright ban on a particular method of previability abortion is unconstitutional

as placing an undue burden on a woman's right to choose, consistent with Justice
Stevens' position.

165
If this interpretation is adopted, then Oklahoma's ban on

RU-486 would be unconstitutional regardless of the proposed compelling state
interest. Even though surgical abortions are available to women, a ban on RU-
486 would unduly burden a woman's right to choose because RU-486 operates
before most surgical abortions can be performed.

166
Therefore, a ban on RU-486

would unduly burden a woman's right to choose when to have her abortion. Such
a ban would have the purpose and effect of placing a substantial obstacle in the

path ofa woman seeking an early pregnancy abortion. For women in many rural
parts ofthe country, surgical abortions are difficult to obtain.

167
In contrast, RU-

486 will allow virtually every American woman easy access to early pregnancy
abortions.

168
Placing a ban or heavily regulating the availability of the drug

would place a substantial obstacle in the path of a woman in rural America
seeking an abortion. Additionally, RU-486 allows women a large degree of
privacy; they can obtain the drug from their family practitioner and undergo

much of the "procedure" in the privacy of their own homes.
169

Thus, these

women can avoid the stigma and trauma that accompanies obtaining a surgical
abortion at an abortion clinic.

170
Denying women access to such a private means

of pregnancy termination unduly burdens their ability to choose abortion.
171

Thus, although the state may convey a compelling state interest in regulating the
availability of the drug, a court adopting Justice Stevens' view may find one of
the above arguments viable and hold that the regulation of the drug places an

undue burden on a woman's right to choose the manner to terminate her
pregnancy. Consequently, the regulation would be found unconstitutional if

Justice Stevens' view were adopted.

1 64. See Whitman & Schultz, supra note 1 28.
165. Carhart, 530 U.S. at 946 (Stevens, J., concurring).

166. Howey, supra note 124.

1 67. See EXPANDING WOMEN'S OPTIONS, supra note 111.

168. See id.

169. See id.

170. See id.

171. See id.



1044 INDIANA LAW REVIEW [Vol. 35:1021

Conclusion

The primary criticism ofCasey, used by both sides ofthe abortion debate, is
that the undue burden standard is vague, mushy, malleable, and too easily

manipulated. It provides an unworkable framework for evaluating abortion

issues. Carhart did little to clarify the murkiness surrounding the undue burden

standard and left open the question of whether a ban on a particular previability

abortion procedure was an undue burden per se, or whether a particular method
could be banned provided that other methods of abortion remained available.

After Carhart, the boundaries of the undue burden standard are unclear. The
emerging debate over RU-486 provides another venue for testing the undue
burden standard, and the question presented in Carhart must be answered in

order to properly assess this new proposed legislation.