This educational guide is based on the linked primary sources. It is not a Court publication, is not affiliated with the Court, and is not legal advice.
In brief
Overview
According to U.S. Solicitor General (General Clement), according to U.S. Solicitor General (General Clement), according to U.S. Solicitor General (General Clement), according to U.S. Solicitor General (General Clement), congress held six hearings over four different Congresses and heard from dozens of witnesses who concluded that partial‑birth abortions are never medically necessary, pose health risks, and should be banned.
Background and question before the Court
Justice Ginsburg asked whether a similar record could be made for the more common dilation and extraction (D&E) procedure.
According to Justice Kennedy, justice Kennedy questioned which doctors testified about not fully dilating the cervix and in which courts those testimonies occurred.
Justice Breyer asked whether greater deference should be given to congressional findings than to state legislatures.
Justice Stevens questioned whether some congressional findings, such as the claim that no medical schools teach the procedure, were clearly erroneous.
What each side argues
Petitioner – Alberto R. Gonzales Attorney General
According to U.S. Solicitor General (General Clement), according to U.S. Solicitor General (General Clement), according to U.S. Solicitor General (General Clement), according to U.S. Solicitor General (General Clement), congress’s hearings concluded that partial‑birth abortions are never medically necessary, pose health risks, and should be banned.
According to General Clement, the Government proposes a pre‑enforcement, as‑applied challenge, arguing that a doctor with standing could show the procedure is useful for conditions such as preeclampsia or placental previa.
According to Solicitor General, testimony indicates that doctors who intend to perform a D&E generally intend a lesser degree of cervical dilation, not an intact delivery.
Respondent – Leroy Carhart
According to Ms. SMITH, the term “necessary” is confused; it should refer to the safest procedure that significantly reduces serious complications, not merely minor ones.
What happened at oral argument
Justice Ginsburg asked whether a record similar to that for partial‑birth abortions could be made for the more common D&E procedure.
According to Justice Kennedy, justice Kennedy inquired which doctors testified about incomplete cervical dilation and in which courts those testimonies occurred.
According to Justice Breyer, justice Breyer questioned the level of deference owed to congressional findings versus state legislatures.
Justice Stevens asked whether some congressional findings, such as the claim that no medical schools teach the procedure, were clearly erroneous.
Justice Ginsburg later asked whether Congress could have written the statute to protect physicians performing a D&E.
Justice Souter asked the Government to focus on a particular problem implicated by the case.
According to Justice Souter, justice Souter questioned whether doctors could control dilation to produce less rather than more dilation.
- [1] 385555cf3a2f83cbbea2-r1-bbb93ce1dc3950ea.pdf, p. 4
- [2] 385555cf3a2f83cbbea2-r1-bbb93ce1dc3950ea.pdf, p. 7
- [3] 385555cf3a2f83cbbea2-r1-bbb93ce1dc3950ea.pdf, p. 8
- [4] 385555cf3a2f83cbbea2-r1-bbb93ce1dc3950ea.pdf, p. 10
- [5] 385555cf3a2f83cbbea2-r1-bbb93ce1dc3950ea.pdf, p. 38
- [6] 385555cf3a2f83cbbea2-r1-bbb93ce1dc3950ea.pdf, p. 38
- [7] 385555cf3a2f83cbbea2-r1-bbb93ce1dc3950ea.pdf, p. 41
What the Court decided
Why it matters
Terms to know
No glossary terms are available for this guide.
Primary sources
Read the source materials on the official site or open the immutable repository copy used for this guide.
- 385555cf3a2f83cbbea2-r1-bbb93ce1dc3950ea.pdforal argument transcript
Guide generated September 21, 2026. Automated validation accepted this version.