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What Stephen Breyer’s Replacement Won’t Have


Justice Stephen Breyer is scheduled to leave the Supreme Court just as his conservative colleagues are poised to dismantle a key part of his legacy: the court’s approach to a right to choose abortion.

Breyer’s name might not immediately come to mind when anyone thinks about abortion rights. Justice Ruth Bader Ginsburg, the late feminist icon, was arguably the court’s most eloquent defender of reproductive rights. Justice Sonia Sotomayor has taken on that role in the current court. Justice Anthony Kennedy, who long cast the swing vote in abortion cases, helped both to save abortion rights in 1992 and to water down protections for them, holding that abortion regulations would be unconstitutional only if they created an “undue burden.”

But it was Breyer, a liberal justice known for seeking compromise with his conservative colleagues, who arguably did the most to make the undue burden test mean something. He took the abstraction out of the phrase: He used data to provide a window into what abortion restrictions actually mean in different parts of America and for different demographic groups, and into what an “undue burden” actually looks like.

With Breyer’s departure, President Joe Biden has promised to nominate a Black woman to the court. It is too early to know who that nominee will be, much less what she will say about abortion. But she will likely share his perspective on a right to choose abortion, and likely his awareness that abortion regulations have uneven effects on different groups of people. But his replacement might lack his obsession with hard data and other details — precisely what made Breyer so effective at reaching out to and connecting with conservatives.

Breyer wrote the majority opinion in every major win for the abortion rights movement over the last two decades — striking down a Nebraska ban on a specific procedure that opponents labeled partial-birth abortion in 2000, invalidating a Texas law requiring clinics to have admitting privileges at local hospitals and to comply with the rules governing ambulatory surgical centers in 2016, then undoing an identical Louisiana law four years later (Chief Justice John Roberts, who did not join Breyer’s opinion, voted with his liberal colleagues to strike down the law).

On and off the bench, Breyer has sometimes struck his progressive detractors in his writing and public statements as a starry-eyed romantic, a naïve believer in compromise and a federal judiciary that could rise above politics. But in his majority opinions on abortion, Breyer was a realist, willing to dive into the data on what neutral-seeming laws meant in the real world.

It was a Breyer majority that gave the “undue burden” test real bite. That decision, Whole Woman’s Health v. Hellerstedt, dwelled on the nitty gritty — the distances people had to travel to get abortions, the number of clinics that would be forced to close, the safety of abortion procedures and alternatives, the capacity of facilities to expand to meet patient demand. Breyer used a balancing test to get at what an undue burden was — asking courts to determine if restrictions actually delivered any benefit, and to dive into the numbers to see whether restrictions were doing any harm.

In cases like Whole Woman’s Health and June Medical Services v. Russo, the 2020 case, Breyer was able to convince one of his more conservative colleagues to join opinions striking down abortion regulations. And this Breyer was not the silly-seeming idealist arguing that the court could rise above the partisan fray. In his writings on abortion, Breyer asked his colleagues to see and care about how abortion in the United States really worked.

Abortion jurisprudence has long pitted constitutional rights against one another. The court’s opinions on a right to choose were known for their high-flown rhetoric — so much so that the late Justice Antonin Scalia made a career of poking fun at his more liberal colleagues’ attempts at poetry. But Breyer showed that the shortest distance between conservatives and liberals on the bench might not be appeals to emotion or legacy — it might instead be encyclopedic detail about how regulations affected real people.

Breyer’s opinions on abortion made no mention of the racial disparities that define abortion in the United States: People of color are disproportionately likely to have abortions and be affected by abortion restrictions. That’s a striking omission, given Breyer’s focus on how abortion restrictions affect specific demographics differently — but it’s one that his replacement will hopefully correct.

What is clear is that the Court’s conservative supermajority is ready to undo Breyer’s legacy — and not just by reversing Roe. At oral argument in December, the Court considered a Mississippi law banning abortion at 15 weeks, before viability, the point set by Roe.

Most of the court’s conservative majority seemed uninterested in viability; they zeroed in instead on whether the Constitution recognizes any abortion right at all. The court’s conservatives touched on a wide variety of topics — such as the history of the Fourteenth Amendment or the idea that the Constitution was neutral on abortion. Strikingly absent was any sense of what such a decision would mean in the real world. Justice Amy Coney Barrett, who came the closest to considering this issue, suggested that reversing Roe would have little practical effect because women who did not want to raise children could simply surrender them, using Safe Haven Laws, and avoid parenting altogether.

Stephen Breyer, the court’s abortion-law realist, made no attempt to fill his colleagues in when it came to the real-world effects of abortion bans. He understood that such an argument probably wouldn’t work with the court’s current majority. Breyer, it turns out, is sometimes a realist when it comes to the internal politics of the court, too.

The court now seems convinced that these people are not the concern of judges interpreting the Constitution. It would be fitting if in his last dissent on the bench, Breyer — the dispassionate reporter of facts on abortion — were once more to tell his colleagues that they were wrong.

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