Federal judge behind major abortion rulings reflects on controversial cases

Don Stenberg was sued by Dr. LeRoy Carhart in Nebraska Federal District Court. (Graphic: NET News)
Judge Richard Kopf speaks with Bill Kelly. (Photo: NET News)
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August 13, 2015 - 6:45am

Judge Kopf interview by NET News.

When the United States Supreme Court issued its opinion in Stenberg v. Carhart, blocking Nebraska’s anti-abortion law, opposing sides cheered and condemned the outcome. By any definition the decision in 2000 was a landmark ruling, advancing the American debate over abortion in the new millennium.

The case had its roots In 1997 when the Nebraska legislature banned the procedure known as partial-birth abortion, called by doctors “dilation and evacuation” or D&E. Then Attorney General Don Stenberg argued the state’s prohibition was correct and lawful, telling a news conference at the time “the state chose to forbid a procedure that many decent and civilized find so abhorrent as to be among the most serious crimes against human life.”

Dr. LeRoy Carhart, who periodically conducted the procedure in his clinic in Bellevue, filed the lawsuit in federal court in Nebraska because, as he explained at the time, “we saw a law that was clearly unconstitutional. It affected my practice. It affected the rights of every woman in Nebraska. It affected the rights of every woman in the United States.”

The opinion, written by Justice Breyer, concluded “because all those who perform abortion procedures using the D&E method must fear prosecution, conviction, and imprisonment, the Nebraska law imposes an undue burden upon a woman’s right to make an abortion decision.”

The case originated in the federal courthouse in Nebraska with Federal District Judge Richard Kopf presiding. After hearing arguments at trial Judge Kopf ruled Nebraska’s law was unconstitutional. It had less to do with the oft-cited ‘women’s right to choose’ than the language of the bill passed by the Legislature. Kopf wrote it was too vague to enforce.

In an interview with NET News, Judge Kopf spoke about the case now that he has recused himself from hearing any future abortion cases.


BILL KELLY, NET NEWS:  In the original case, in Carhart v. Senberg, you ruled Nebraska’s law banning the procedure partial-birth abortion was written in language so vague and broad as to make it unconstitutional.  How does vague language equate to being not in line with the Constitution?

JUDGE RICHARD KOPF: If you’re a doctor in an abortion clinic and you’re going to perform a procedure that requires, that allows you to manipulate the fetus in such a way as to be able to extract it more easily.  You do that because you’re very concerned about the woman’s health.  What people don’t understand is that it requires a certain skill to do this.  It’s unpleasant like any operation is. There’s blood, in this case, in an abortion there’s a fetus as well.  So if you’re in that clinic and you’re about to do this procedure and you ask yourself, “Am I violating the law?” So you call your lawyer and put scrubs on. He or she opens the book and says, “You know, I don’t know if that procedure’s going to pass or not.”  And guess what?  You can go to prison for it if you do it and you’re prosecuted and you’re convicted. You can go to prison.

KELLY: And you can’t use I didn’t understand the law as the defense?

KOPF: Generally speaking, that’s right. And so that’s why there’s the vague, the vagueness doctrine is especially in criminal cases because there’s the thought is that if you, if a person of ordinary understanding could have two reasonable interpretations, of the statute, you ought not to subject them to criminal liability if they guess wrong. 

(Read the Supreme Court’s full opinion HERE)

KELLY: Is it fair to say that your 1998 decision in (that) abortion case is your most notable ruling?  The one most important to you also?

KOPF: Well, I think probably the second case (Gonzalaz v. Carhart) was the most notable, which was the federal partial-birth abortion case.  In that case, I think my opinion was 476 pages long and I had like a 30-page index or appendix on top of it.

KOPF BACKS ABORTION PROTESTORS

In 2008 Sarpy County, Nebraska began enforcing a law aimed at limiting where protests could occur after complaints about the tactics used by pro-life groups bringing graphic photographs of abortions into residential neighborhoods. After two stinging defeats in the partial-birth abortion law cases, the anti-abortion movement found an ally in Judge Kopf when it came to free speech. A civil rights lawsuit filed by protestors ended with a negotiated agreement encouraged by the judge which all but ended the arrests.  Here Kopf reflects on how he made that decision.


KOPF: There’s a church in (Bellevue) that used to have a doctor that performed abortions.  The anti-abortion folks from Kansas picketed the church on the sidewalks with very graphic images of aborted fetuses.  The city council passed an ordinance basically stopping them from doing it by putting them across the street.  I said the city council ordinance was invalid. How did I come to that opinion?  Lawyers and judges reason by analogy.  By prior cases.  In that case there was what we call precedent, which really means a prior example.  You take the principles articulated by judges earlier, typically from the Court of Appeals or the Supreme Court. You’ll find methods of analysis that you should apply.  There’s a certain art and a certain science in doing that.  (In) the church case,  I went back through the Supreme Court cases that had to do with sidewalks and drew principles from those cases about street protests. I drew principles from those cases.

KELLY: Is the offensiveness of the content ever part of the equation.

KOPF: Almost never. You get to say just about anything except “Fire” in a crowded theater.   If the content of your speech is such that there would be demonstrable physical harm, that’s one thing. Generally speaking, you cannot regulate content.

 

Photo Courtesy Operation Rescue

KELLY:  I want to stop you there. Your first case (Carhart v Stenberg) was only like 70 pages.  Why on earth did you need 400-plus pages to get the point across (in the latter case)?

KOPF: Because I was engaging in a debate with Congress. The federal partial-birth abortion case specifically referred to my earlier decision.  For example, I summarized the testimony of every doctor that either testified before Congress or submitted information to Congress.  I reviewed every article that was submitted to Congress.  I believe that Congress had been just clearly wrong factually.  In order to avoid any doubt about what the facts were the opinion became longer than necessary. 

The legal analysis which comes later in the opinion is much less.  Is not a minor part, but it’s not nearly as long as the factual recitations. 

As a matter of fact, I apologized on the opinion to the Court of Appeals and anyone else who had to muddle through that long thing. 

KELLY:  The first case deals with Nebraska state law. The second one (which became Gonzalez v. Carhart before the U.S. Supreme Court) deals with a law that Congress has passed, signed by President Bush at the time.  Was there simply more at stake because it was federal legislation?

KOPF: I think there was. You’d have to ask the lawyers. And the lawyers in that case were wonderful, both for the federal government and Dr. Carhart. They were just superb lawyers. 

I think everybody knew that my case was the first one.  I enjoined the enforcement of the (Partial-Birth Abortion Ban Act) moments after it was signed.  Everybody knew because of the first Carhart decision and the fact that the Supreme Court had changed (its make-up), that it was possible the law would end up in the Supreme Court because the law applied not only to Nebraska, but to all the other states. 

I think there was the feeling that it was of great significance.  At least that’s the sense I got from the lawyers.

KELLY:  So they came to your court, the pro-abortion supporters or pro-choice supporters.  They choose your court because they had gotten a favorable ruling before.  What kind of position does that put you in as a judge when—I mean it was obvious that’s why that was happening.

KOPF: Well, they originally came here because of Dr. Carhart. There are a lot of doctors who perform abortions who do not want to be involved in litigation.

I’ll give you a very dramatic example.  In the second partial-birth abortion case, a doctor from another country, English-speaking country testified, but nobody knew about it.  We took his testimony at a place where no one could see what was going on.  He had a security detail and we had U.S. marshals there.  Two attempts had been made on his life.  He had been stabbed in the chest once at a hospital when he was going down the back stairway by somebody who was angry at him for his medical practice.  It’s hard to get a doctor in those circumstances to testify because your life becomes absolutely miserable. 

KELLY: And Dr. Carhart was willing (to file a second case in Nebraska).

KOPF: That’s right.  And so when they got their first decision (in the case filed by Dr. Carhart), it went up to the Supreme Court and it was affirmed. Dr. Carhart was willing again (to challenge the federal law) and that’s why I think it was filed in Nebraska.

I got (assigned) the second partial-birth abortion case because we have what’s called the ‘relatedness rule.’  It makes sense that if I have spent all my time learning about partial-birth abortions in one case, and our other judges have not, it makes sense for me to take the case. And that’s why I got it.

KELLY:  The United States has had Roe Vs. Wade.  The issue is settled.  You had two cases in your court. Both times, the issue is settled. But the issues is not settled. There’s going to be another round (of abortion-related cases) before the Supreme Court this year.  Are you surprised that this issue just doesn’t go away?

KOPF: No I’m not.  (U.S. Supreme Court) Justice Ruth Bader Ginsberg has suggested that perhaps Roe vs. Wade came too quickly.  I’m talking about the Supreme Court now.  The Supreme Court can make decisions that are that require public support.  If you don’t have public support for the decision, then you’re going to have this sort of abrasion that we see over this issue.  So I have no idea when this will end. 

KELLY:  It’s difficult for a number of people in relation to this issue to believe that a judge can’t have already made up their mind on the principles of the topic. They’ve got their mind made up even before the gavel falls in the trial. You hear criticism from conservatives on your end.  They’re liberals that are convinced the same thing about justices on the Supreme Court. Can you set aside your own personal opinions and still make a rational fair decision even if you have an opinion on the topic?

KOPF: I can only speak as a trial judge.  And the answer to your question is that’s not hard for me because so much of what I do is factually-based.  If there’s going to be an appeal to the Eighth Circuit Court of Appeals or the Supreme Court, they’re primarily going to be interested in the application of the law before me. My job is to assemble and find the facts. 

It’s just the same question that journalists face.  You have personal opinions.  I have no idea what you think about partial-birth abortion, for example.  I think you can ask me questions as a journalist fairly even though you may have certain very strong opinions.  And I think the same thing applies to trial judges.  If you do this long enough, you begin to have a very good sense of how to insulate yourself from your own biases. 

First of all, you state them to yourself.  You remind yourself that you have a certain bias.  And second of all, you are blessed with great law clerks.  These are experienced people and so you sit down and say to them, okay here’s my bias.  I’m trying my best.  We call it in our office, ‘dealing it straight up.’ You find the facts and the facts will lead you to an ultimate resolution.

KELLY: What’s it like when you realize that one of your rulings (is) going to be reviewed by the U.S. Supreme Court?

KOPF: This may be hard to believe, but when I’m writing, I don’t think about that very much. 

The two cases that went to the Supreme Court were both the so-called partial-birth abortion cases.  In the first case, I was affirmed at the 8th Circuit and then again in the Supreme Court.  In the second case, I was affirmed again in the 8th Circuit, but reversed by the Supreme Court.  Between those two decisions, the court’s composition changed. 

In any event, what I think about, I read the opinions of the court and my law clerks and I talk about the decisions and debate whether we would have written it this way or that way. 

I was happy to be affirmed and unhappy that I was reversed. You don’t become a judge without a certain amount of ego. And a pretty strong ego.  From that perspective, after you’re done writing it and you know it’s going to be reviewed, then I think your ego becomes more involved.  When you’re writing it, you’re so immersed in trying to get it right that extraneous things like this might end up in the Supreme Court and so forth are really beside the point. 

Discussion

 

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