Justice Breyer: A formidable defender of reproductive rights

justice breyer gesturing with palm raised toward ceiling

Justice Breyer pronounces an opinion from the bench in 2018. (Artwork Lien)

This text is a part of a symposium on the jurisprudence of Justice Stephen Breyer.

Michele Goodwin is a chancellor’s professor on the College of California, Irvine, and the creator of Policing the Womb: Invisible Ladies and the Criminalization of Motherhood.

Justice Stephen Breyer’s retirement from the Supreme Court docket on the finish of this time period will mark the top of an period. Each he and Justice Ruth Bader Ginsburg — who premature handed early within the 2020-21 time period — shared related ideological views, approaches to judicial assessment, and paths to the Supreme Court docket. Each justices have been appointed in the identical 12 months to federal circuit courts of appeals in 1980 by President Jimmy Carter. Later, each acquired nominations to the Supreme Court docket by President Invoice Clinton — Ginsburg in 1993 and one 12 months later, virtually to the day, Breyer, sworn in on Aug. 3, 1994.

Collectively, Breyer and Ginsburg formed the courtroom’s jurisprudence on reproductive rights within the period after Deliberate Parenthood v. Casey. Each defenders of abortion rights, Breyer authored analytically wealthy majority opinions in Stenberg v. Carhart, Complete Girl’s Well being v. Hellerstedt, and June Medical Providers v. Russo, defending abortion rights, whereas Ginsburg penned nuanced concurrences, in addition to rigorous dissenting opinions in circumstances diluting or threatening reproductive liberties, resembling Gonzales v. Carhart, Burwell v. Pastime Foyer Shops, and notably shortly earlier than her demise, Little Sisters of the Poor Saints Peter and Paul Residence v. Pennsylvania

Regardless that Breyer and Ginsburg have been contemporaries who shared related ideological views on the substantive questions associated to reproductive privateness, their jurisprudence can’t be conflated or reductively framed as being of 1 voice. One may say that Breyer wrote for right now and Ginsburg preserved the data for the long run — a jurisprudence in exile. For instance, it’s value noting that Breyer’s dedication to judicial independence is mirrored in circumstances the place he and Ginsburg parted methods, resembling in Little Sisters, in addition to the place they agreed, resembling in Stenberg v. Carhart, the place he wrote the bulk opinion and Ginsburg penned a concurrence.

An in depth studying of Stenberg v. Carhart, a 5-4 determination in 2000, underscores this level. In that case, Breyer led the bulk in hanging down a Nebraska felony statute that made it illegal to carry out dilation-and-evacuation and related abortion procedures although the dangers of mortality and morbidity to the pregnant particular person are considerably decrease than induced-labor procedures. Breyer framed the query as whether or not the regulation violated the “Federal Structure as interpreted in Deliberate Parenthood v. Casey and Roe v. Wade” and concluded that it did for 2 clear, impartial causes. First, the regulation made no “exception for the preservation of the … well being of the mom.” Second, Breyer defined that the regulation imposed “‘an undue burden on a girl’s capacity’ to decide on” abortion.

Breyer is meticulous, combing by the district courtroom file, elevating empirical information, canvassing science, and interrogating the authorized requirements utilized by the decrease courtroom. Like Justice Harry Blackmun earlier than him, he centered how such legal guidelines will finally affect the lives and constitutional rights of pregnant individuals, explaining, “[f]irst, earlier than ‘viability … the lady has a proper to decide on to terminate her being pregnant,’” and “[s]econd, ‘a regulation designed to additional the State’s curiosity in fetal life which imposes an undue burden on the lady’s determination earlier than fetal viability’ is unconstitutional.” He punctuated these rules by explaining that “[a]n undue burden is shorthand” for state laws which have “the aim or impact of putting a considerable impediment within the path of a girl in search of an abortion of a nonviable fetus.” This opinion epitomizes Breyer’s considerate however arguably secure strategy to reproductive rights, counting on precedent, and like a professor, mounting proof to assist the final word conclusion.

By refined distinction, Ginsburg, in her Stenberg v. Carhart concurrence, reminded the courtroom — and arguably all folks involved about defending reproductive rights — that for “all of the emotional uproar” and handwringing concerned with the Nebraska regulation, the courtroom “shouldn’t lose sight of the character of Nebraska’s” regulation. In different phrases, the regulation was not about fetal well being, security, or termination — and positively not about defending ladies’s well being — however finally sought “to chip away on the personal alternative shielded by Roe v. Wade.” The place Breyer interpreted Deliberate Parenthood v. Casey’s main holding to use to the Nebraska regulation, Ginsburg foreshadowed states enacting varied restrictive legal guidelines to undermine abortion rights (underneath the proxy of defending fetal well being) — a foreshadowing that has come to fruition.

That stated, Breyer’s reproductive rights jurisprudence will probably be most related along with his compelling, even masterful, 5-3 opinion in Complete Girl’s Well being v. Hellerstedt, which struck down two Texas anti-abortion provisions. The case have to be understood in context: Even whereas a overwhelming majority of Individuals assist the suitable to terminate a being pregnant, between 2011 and 2013 extra anti-abortion legal guidelines have been enacted on the state degree than in all of the years a decade earlier than — mixed.

Complete Girl’s Well being v. Hellerstedt involved the constitutionality of an “admitting-privileges requirement” that mandated “[a] doctor performing or inducing an abortion … should, on the date the abortion is carried out or induced, have energetic admitting privileges at a hospital that … is situated not additional than 30 miles from the placement at which the abortion is carried out or induced” and a “surgical-center requirement,” which offered that “an abortion facility have to be equal to the minimal requirements … [required for] ambulatory surgical facilities.”  

As in Stenberg, Breyer canvased medical research, scrutinized the district courtroom’s fact-finding, reviewed and cited medical research, and grounded the choice in holdings from Casey and Roe v. Wade. He famous, “[i]n Casey, for instance, we relied closely on the District Court docket’s factual findings and the research-based submissions of amici in declaring a portion of the regulation at challenge unconstitutional.” In Complete Girl’s Well being v. Hellerstedt, Breyer once more gave appreciable weight to the district courtroom’s fact-finding, explaining “that the Court docket retains an impartial constitutional obligation to assessment factual findings the place constitutional rights are at stake.” Like Blackmun in Roe v. Wade, Breyer defined the grave harms that might materialize if the Texas legal guidelines have been allowed to take impact, together with the closure of the few remaining abortion clinics within the state, the “significantly excessive barrier[s] for poor, rural, or deprived ladies,” and the excessive dangers of morbidity and mortality. It’s value noting that on this case, Justice Anthony Kennedy joined the liberals on the courtroom.  

The case established an necessary precedent that Breyer in a number of quick years would return to in June Medical Providers v. Russo, hanging down a close to verbatim abortion provision requiring that docs receive admitting privileges as a situation to carry out abortions in Louisiana. In that case, Chief Justice Roberts joined the liberals in voting to strike down the requirement.

Breyer will probably be remembered for judicial independence whereas serving on the courtroom, a meticulous strategy to analyzing the file and drafting opinions, and a dedication to stare decisis, persistently drawing upon well-established rules. For instance, on issues associated to reproductive rights, he persistently turned to Deliberate Parenthood v. Casey and Roe v. Wade to tell his jurisprudence. By doing so, he drew a bridge with Kennedy and Justice Sandra Day O’Connor — the 2 Republican appointees who for years have been the courtroom’s swing justices. Notably, each Kennedy and O’Connor signed on to Breyer’s opinions in circumstances addressing abortion rights.

Breyer retires at a important second within the courtroom’s historical past; a time marked by pronounced ideological shifts on the courtroom, severe threats to reproductive liberties on the state degree, and an evident need amongst conservatives on the courtroom to dismantle the core holding of Roe v. Wade. After oral argument in Dobbs v. Jackson Ladies’s Well being Group in December, the way forward for Roe v. Wade just isn’t sure.

But, Breyer’s legacy will attain past his jurisprudence. His retirement additionally units the stage for what will probably be a monumental, historic first within the courtroom’s 233-year historical past. Breyer’s retirement presages the nomination of the primary Black lady to serve on the courtroom and to imagine the seat that he’ll vacate. Future historians might credit score the nomination and, if confirmed, the primary Black lady on the US Supreme Court docket, to President Joe Biden for fulfilling a marketing campaign promise. Nevertheless, it’s worthy contemplating how this second additionally displays Breyer’s independence, management, and philosophy. His retirement makes room for Biden’s nomination. As such, he builds one other bridge and dismantles a long-standing barrier that has existed for the reason that Supreme Court docket’s institution in 1789. 

Breyer leaves behind a storied and necessary legacy whereas paving the best way for a brand new period on the Supreme Court docket.

What do you think?

Written by colin


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