Stephen Breyer on Abortion

Supreme Court Justice (nominated by Pres. Clinton 1994)

Apply context & history to original Constitution

When we get in a tussle, we appeal to the Founding Fathers and the Constitution’s ratifiers to give direction. Some, like Justice Scalia, conclude that the original understanding must be followed and if we obey this rule, democracy is respected.

Others, like Justice Breyer, insist that sometimes the original understanding can take you only so far--that on the truly big arguments, we have to take context, history, and the practical outcomes of a decision into account.

I have to side with Justice Breyer’s view of the Constitution--that it is not a static but rather a living document and must be read in the context of an ever-changing world.

I see democracy as a conversation to be had. According to this conception, the genius of Madison’s design is not that it provides a fixed blueprint for action. It provides us with a framework and rules, but all its machinery are designed to force us into a conversation.

Source: The Audacity of Hope, by Barack Obama, p. 89-92 , Oct 1, 2006

Wrote opinion upholding partial-birth abortion

On several large issues (with federalism a notable exception), Justice O'Connor & Justice Stephen Breyer were solidly together. Their growing judicial kinship was evidenced most proactively on partial-birth abortion, the most controversial social-issues case of recent years. Along with 30 other states, Nebraska had outlawed this particularly grisly abortion method. [In 2000], the Court still overturned Nebraska's ban. The states were to be severely limited in their regulation of specific medical procedures used in the abortion context.

On the subject of partial-birth abortion, it was altogether natural that the writing assignment fell to Justice Breyer (made by the senior justice in the majority, Justice Stevens) to write the deeply controversial majority opinion invalidating the state law prohibiting the procedure. No one else would so likely win the vote of Justice O'Connor (to the dismay of Justice Kennedy) on this wrenching subject.

Source: First Among Equals, by Kenneth Starr, p. 31&41 , Oct 10, 2002

Roe v. Wade is “settled law”

The court, in its rulings since Roe, has demonstrated its reluctance to overturn what Justice Stephen Breyer during his confirmation hearings called “settled law.”
Source: News-star.com , Jan 18, 1998

Other Justices on Abortion: Stephen Breyer on other issues:
Samuel Alito
Stephen Breyer
Ruth Bader Ginsburg
Elena Kagan
Anthony Kennedy
John Roberts
Antonin Scalia
Sonia Sotomayor
Clarence Thomas

Former Justices:
David Souter
Sandra Day O'Connor
William Rehnquist
John Paul Stevens

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Page last updated: Jul 13, 2015