This absolute right effectively means that the Court has determined that the fetus is not a human being prior to viability. Therefore, the effects on a fetus cannot be considered when deciding whether or not an abortion procedure is legal. The fact is that, pre-viability, even if a doctor where to completely deliver an intact fetus, it would be unable to survive outside of the womb. Therefore, a doctor performing a partial-birth abortion is not committing infanticide, as suggested by the dissent, because Roe has established that non-viable fetuses are not yet human beings. Furthermore, while Roe and Casey recognize that states have an interest and protecting potential human life, a statute limiting partial-birth abortion does not further a state's interest in protecting potential human life. The statute in question does not proscribe abortion, but merely limits the methods by which a woman may have an abortion. Therefore, Nebraska cannot argue that the statute protects potential human life. On the...

Given that the statute may have the effect of impeding a woman's right to choose an abortion by denying her access to the safest and most painless method of abortion, without furthering a state's interest in protecting potential human life, the statute places an undue burden on a woman's right to choose and is unconstitutional.
Conclusion

The Court affirmed the decision of the appellate court, and held that Neb. Rev. Stat. Ann. 28-328(1) (Supp. 1999), was unconstitutional.

Roe v. Wade, 410 U.S. 113 (1973).

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).

Neb. Rev. Stat. Ann. 28-328(1) (Supp. 1999).

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

Stenberg v. Carhart, 530 U.S. 914 (2000), dissent, Kennedy.

Stenberg v. Carhart, 530 U.S. 914 (2000), dissent, Scalia.

Stenberg v. Carhart, 530 U.S. 914 (2000), dissent, Scalia; dissent,…