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.