During his nearly three-decade tenure, Supreme Court Justice Stephen Breyer has authored a number of important opinions. His style is straightforward, without rhetorical flourish and marked by a tendency toward numbered points.
A former law professor, he readily delves into the intricacies of federal statutes. But he also has demonstrated a pragmatism and tried to show in his opinions an understanding of how the words of the court would impact the lives of individual Americans. Here are some of Breyer’s most notable writings to date: Abortion Stenberg v. Carhart. A 2000 case testing a Nebraska prohibition on an abortion procedure labeled «partial birth» and medically known as dilation and evacuation (D&E). Breyer wrote for the majority in what would become the first of a series of abortion opinions he authored over the next two decades. Before assessing the Nebraska law in light of cases that forbid government from placing an «undue burden» on women seeking abortion, Breyer addressed the dueling public interests. «We again consider the right to an abortion. We understand the controversial nature of the problem. Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child; they recoil at the thought of a law that would permit it. Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering.» «Taking account of these virtually irreconcilable points of view, aware that constitutional law must govern a society whose different members sincerely hold directly opposing views, and considering the matter in light of the Constitution’s guarantees of fundamental individual liberty, this Court, in the course of a generation, has determined and then redetermined that the Constitution offers basic protection to the woman’s right to choose….» «The question before us is whether Nebraska’s statute, making criminal the performance of a ‘partial birth abortion,’ violates the Federal Constitution, as interpreted in Planned Parenthood of Southeastern Pa. v. Casey (1992), and Roe v. Wade (1973). We conclude that it does for at least two independent reasons. First, the law lacks any exception ‘for the preservation of the… health of the mother.’ Second, it ‘imposes an undue burden on a woman’s ability’ to choose a D&E abortion, thereby unduly burdening the right to choose abortion itself.» Twenty years later, in June Medical Services v. Russo, Breyer authored the judgment of the majority striking down a Louisiana law that required physicians who perform abortions in clinics to obtain «admitting privileges» at a local hospital. (Such credentialing can be difficult for clinic physicians to obtain, and lower court judges have found that they do not ensure greater health benefits for women.) Breyer’s opinion, however, was penned only for a plurality of the court, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Chief Justice John Roberts cast the fifth vote to strike down the Louisiana regulation but wrote separately to explain that his rationale differed from Breyer’s. Much of Breyer’s decision was tied to his 2016 decision for a majority (with Justice Anthony Kennedy still on the court) in Whole Woman’s Health v. Hellerstedt that invalidated a similar Texas law. Breyer began with the legal standard derived from past Supreme Court cases highlighting a woman’s constitutional right to end a pregnancy and that government may not unduly burden that right. A key precedent is the 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey. «In Whole Woman’s Health v. Hellerstedt (2016), we held that ‘[u]nnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right’ and are therefore ‘constitutionally invalid.’ We explained that this standard requires courts independently to review the legislative findings upon which an abortion-related statute rests and to weigh the law’s ‘asserted benefits against the burdens’ it imposes on abortion access. The Texas statute at issue in Whole Woman’s Health required abortion providers to hold ‘active admitting privileges at a hospital’ within 30 miles of the place where they perform abortions….» «In this case, we consider the constitutionality of a Louisiana statute, Act 620, that is almost word-for-word identical to Texas’ admitting-privileges law. As in Whole Woman’s Health, the District Court found that the statute offers no significant health benefit.
