Prior Ruling: 8^th Circuit Court of Appeals (192 F.3d 1142).

In June 1997, the Governor of Nebraska signed into law a bill prohibiting "partial birth" abortions. Specifically, the statute provided that "[n]o 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."

Leroy Carhart, a doctor who worked in a Nebraska abortion clinic, immediately challenged the statute in U.S. District Court as unconstitutionally vague. He also argued that the law placed a severe burden upon himself and his patients seeking abortions in violation of the "undue burden" test the Supreme Court established in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). Carhart maintained that not only would women who, for whatever reason, needed access to the dilation and extraction procedure (the clinical term for partial-birth abortions) be prohibited from doing so, the most common method of abortion (dilation and evacuation) used in the second trimester would be banned as well under this statute. The practical effect, he argued, would be to ban most abortions undertaken after the first trimester.

The U.S. District Court agreed and struck down the law whereupon the state of Nebraska appealed the case to the U.S Court of Appeals for the Eighth Circuit. The State of Nebraska argued there that the law did not ban all second trimester abortions and thus could not be considered as creating an undue burden on anyone. It also suggested that the law recognized partially born fetuses differently than those still in the womb. In other words, while acknowledging that states could not place excessive restrictions on most abortions, it had a right to protect those fetuses who were at least partially born before being aborted. In April 1999, the Appeals Court rejected these arguments and affirmed the lower court’s decision.

However, just a few months later, the Seventh Circuit Court of Appeals upheld a ban on partial-birth abortions within its jurisdiction. The conflict between the circuits on this issue virtually guaranteed the Supreme Court would take up its first abortion case since 1992. The U.S. Supreme Court granted certiorari on January 14, 2000. The inherent controversy of this issue coupled with the President’s veto (twice) of legislation dealing with partial-birth abortions, and the fact that some 30 states have passed laws banning partial-birth abortions (although many have been declared unconstitutional) testify to the broad significance of this case.
 

1. Do state legislatures have the authority to ban partial-birth abortions?
2. Did the Eighth Circuit Court properly apply the "undue burden" provisions of Casey when it affirmed the lower court ruling striking down the Nebraska law?

Moot court will be held on May 15, 2000 during regular class hours. The deadlines and page requirements of papers will differ depending on the role you choose below. Attorney and amici briefs will be due the day of oral argument before arguments are heard.

** Counsel for each side will submit one joint brief, the length of which should be between 12 and 15 double-spaced pages. Each side will, in turn, offer 30 minute oral arguments before the Court.

** Justices’ opinions will be due May 22, 2000. In these opinions, each justice should, to the extent possible, summarize the jurisprudence of the Justice he or she is playing and then devote the remainder (the majority of the paper) to deciding the questions presented here. The length of these opinions should be between 10 and 13 double-spaced pages. Those role-playing the Justices are expected to be aggressive in their questioning of counsel.

** Amici will submit papers of 12-15 double-spaced pages.

Members of the Supreme Court: Chief Justice William H. Rehnquist, and Associate Justices John Paul Stevens, Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, David H. Souter, Clarence Thomas, Ruth Bader Ginsburg, and Stephen Breyer.

Counsel: Appellant (3) and Respondent (3). This is a joint assignment and all three attorneys on each side will share the same grade.

Amicus Curiae: Amicus briefs are, literally, "friend of the court" briefs. They are filed by third parties (often interest groups or others interested in the outcome of a case) to offer additional information of importance to the Justices that may not be included in the briefs of the two parties. Amici are only expected to file a brief and not actively participate in the oral arguments.