Stephen Breyer on Abortion

Supreme Court Justice (nominated by Pres. Clinton 1994)


Don't require admitting privileges for abortionists

The Supreme Court blocked Louisiana from enforcing a law that women's groups said would leave only a single doctor legally allowed to perform abortions in the state. By a 5-4 vote, the court said the restrictions must remain on hold while challengers appeal a lower court decision in favor of the law.

The vote signaled that a majority of the justices have doubts about the constitutionality of the LA law, which requires any doctor offering abortion services to have admitting privileges at a hospital within 30 miles. Plaintiffs argued that it was identical to a Texas law the Supreme Court struck down in 2016, in which the court said Texas imposed an obstacle on women seeking access to abortion services without providing them any medical benefits. It was the most important abortion ruling in 25 years and blocked similar restrictions in AL, MS, OK, TN, and WI.

Plaintiffs said Louisiana's law would leave only one doctor at a single clinic in New Orleans to perform the procedure

Source: NBC News on 2019 SCOTUS case: "June Medical vs. Louisiana" , Feb 7, 2019

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

Parental notification is lower priority than maternal health

In Ayotte v. Planned Parenthood of Northern New England, a challenge to a New Hampshire law that prohibits doctors from performing an abortion on a minor until 48 hours after a parent has been notified is heard. The Supreme Court rules that the government cannot restrict abortions when one is required during a medical emergency.

OnTheIssues explanation: The court did not rule against "parental notification" in general; in other words, states can decide if and when a minor girl's maternal health is the higher priority (a pro-choice stance); justices in the minority say that parental notification has the higher priority (a pro-life stance).

Opinions: O`Connor wrote majority opinion; all 8 other justices concurred.

Source: InfoPlease.com on 2006 SCOTUS docket #04-1144 , Jan 18, 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(since 2006)
Amy Coney Barrett(since 2020)
Stephen Breyer(since 1994)
Neil Gorsuch(since 2017)
Ketanji Brown Jackson(nominated 2022)
Elena Kagan(since 2010)
Brett Kavanaugh(since 2018)
John Roberts(since 2005)
Sonia Sotomayor(since 2009)
Clarence Thomas(since 1991)

Former Justices:
Merrick Garland(nominated 2016)
Ruth Bader Ginsburg(1993-2020)
Anthony Kennedy(1988-2018)
Antonin Scalia(1986-2016)
John Paul Stevens(1975-2010)
David Souter(1990-2009)
Sandra Day O'Connor(1981-2006)
William Rehnquist(1975-2005)

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Page last updated: Mar 21, 2022