A Champion for Abortion: On Justice Breyer’s Retirement and Legacy

You’ve heard Justice Stephen Breyer is retiring, but did you know he has been a champion for abortion access for more than two decades? During his 26 years on the bench, Justice Breyer spoke for the majority every time the Supreme Court struck down an abortion restriction. He consistently employed artful pragmatism to cut through inaccurate and harmful narratives about abortion, and never shied away from calling out illogical arguments intended to strip away human rights. Justice Breyer’s legacy is one of reliability, practicality, thoughtfulness, and evidence-based decision making. Here is a glimpse at his legacy in upholding and reaffirming the right to abortion. 


Justice Breyer’s Legacy in the Court 

Justice Breyer has been characterized as a moderate Justice with a centrist interpretation of the law. As a new member of the legal field, I view his legacy as the opposite and have been a fan of Breyer and his forceful judicial opinions. Breyer’s opinion in Whole Woman’s Health v. Hellerstedt (2016) (WWH)—which clarified the existing undue burden standard for reviewing abortion restrictions—inspired me to go to law school. I found it inspiring to see how one person’s perception of existing laws could change the lives of many people seeking abortion access.

In WWH, Breyer clarified Casey’s undue burden standard as it applied to facts in the record, evidencing the insidiousness of Targeted Regulation of Abortion Provider (TRAP) laws passed by state legislators seeking to shut down abortion clinics. By considering evidence at face-value and the overall impact of regulations on abortion access, Breyer clarified a judicial review standard that weighed the benefits of abortion restrictions with their burdens on abortion access. Breyer found it is not for courts to “simply substitute its own judgment for that of the legislature… [rather to consider] the evidence in the record—including expert evidence, presented in stipulations, depositions, and testimony—in weigh[ing] the asserted benefits against the burdens.” Breyer’s approach in WWH clarified Casey’s undue burden standard—often criticized for a lack of focus on facts and facilitation of immense judicial discretionand forced legislators passing abortion restrictions under the guise of “protecting women’s health” to show proof

In the subsequent June Medical v. Russo (2020) decision, Breyer applied this balancing test in striking down a Louisiana hospital admitting privileges law that was identical to the one rejected by the Court in WWH. Ever unafraid to speak his mind, Breyer exasperatingly interrupted the Louisiana state attorney during oral arguments to ask how he expected the Court to blatantly reject precedent set in WWH, Casey, and at least eight cases on point, when the rule of law requires adherence to precedent. Justice Breyer rhetorically asked if the attorney general expected the Court to “go back and reexamine Marbury v. Madison—the 1803 Supreme Court case that defined the function of our federal courts system. Statements like that prove Justice Breyer was anything but a moderate or timid justice, particularly on reproductive rights

Justice Breyer also authored the dissent in NIFLA v. Becerra (2018), which struck down a California law seeking to curb misinformation about reproductive health care spread by anti-abortion individuals posing as medical professionals. Justice Breyer responded to this harmful decision by naming the majority’s hypocrisy: “If a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able…to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services?”  


What’s The Future of Our Highest Court? 

Justice Breyer’s retirement comes at a time when the legitimacy of the Supreme Court is being called into question and abortion access is at great risk, with SB8 in effect and Dobbs v. Jackson Women’s Health Organization pending before the Court. He spoke to this moment when, in referencing Lincoln’s Gettysburg address, he stated, “we have a country…based on human rights… [and] democracy. And we are now engaged in a great civil war to determine whether that nation or any nation so conceived and so dedicated, can long endure.

Justice Breyer’s retirement means we are losing a champion for abortion rights and access, and it’s critical President Biden fill his seat with another. Justice Breyer’s presence on the Court will be missed and we are grateful for his commitment to upholding the right to abortion access. As we honor his legacy, we also recognize the need to ensure our highest Court reflects our country’s diversity—only three of the 115 justices in history have been people of color. With Breyer retiring, President Biden must fulfill his promise to nominate the first Black woman to the Supreme Court, and it must be someone who will be clear that the law protects individual liberty and the right of all people to make personal decisions about their bodies, personal relationships, lives, and futures.