What this means is that if Nebraska's ban cannot reasonably be construed to ban only the intact dilation and extraction abortion procedure, it would be declared to be an "undue burden" on a woman's "right" to abortion because it would ban the most widespread technique used after the first trimester--dilation and evacuation (D&E).
Question #1: Does Nebraska's law ban only intact dilation and extraction abortions?
Partial-birth abortion bans clearly target this procedure, and legislative history dating back to the first congressional hearing in 1995 confirms that intact dilation and extraction was the sole target.
Applying these principles, the High Court could hold that the ban only applies to intact dilation and extraction procedures.
Justice Antonin Scalia was very active in resisting the efforts of Carhart's attorney, Simon Heller, to conflate D&E and intact dilation and extraction.
Circuit Court of Appeals upheld Wisconsin's and Illinois's bans on partial-birth abortion because it understood that these state laws banned only the intact dilation and extraction abortion procedure.
Circuit Court of Appeals also said it was reasonable to conclude the ban applied only to intact dilation and extraction.
Question #2: Would a ban on intact dilation and extraction procedures constitute an "undue burden" on a woman's "right to abortion"?
The nearest medical term that to some degree meets that definition is an
intact dilation and extraction, which involves the deliberate dilation of the cervix, usually over a sequence of days.
