Statement from Nancy Northup, President and CEO of the Center for Reproductive Rights:
Today, it was reported that Justice Stephen Breyer, the author of some of the most important abortion cases in recent history, will retire at the end of this term. During his nearly twenty-eight years on the U.S. Supreme Court, Justice Breyer has been one of the Court’s great champions of reproductive rights and gender equality, demonstrating a deep awareness of the real-life implications of his judicial decisions in cases ranging from abortion rights to access to Family Medical Leave to educational opportunities for women.
Justice Breyer’s retirement comes at a moment of crisis for reproductive rights in America. The Supreme Court has allowed Texans to be denied abortion access for almost five months now, against blistering dissents that justice Breyer joined. By June, the Court will decide whether to overturn Roe v. Wade, which would likely lead to half of the states banning abortion. The ruling in that case— Dobbs v. Jackson Women’s Health Organization — is anticipated to come at the end of this term, and may be the last case decided during Justice Breyer’s tenure on the Court.
In abortion rights cases, Justice Breyer’s opinions laid out the facts and evidence to cut through the spurious justifications for restrictive abortion laws. He authored the majority opinion in the landmark decision Whole Woman’s Health v. Hellerstedt (2016), which blocked two laws that would have closed three-quarters of the abortion clinics in Texas. Four years later, Justice Breyer authored the plurality opinion in June Medical Services v. Russo (2020), striking down a Louisiana law nearly identical to the Texas law at issue in Whole Woman’s Health v. Hellerstedt, reiterating that these laws impose severe burdens on abortion access for no legitimate medical reason.
He also joined and authored dissents criticizing rulings and laws that throw obstacles in the way of people seeking abortions, and highlighted the harmful impacts these decisions would have on women in those states. He joined Justice Ginsburg in dissenting in Gonzales v. Carhart (2007) which condemned the majority’s “effort to chip away at a right declared again and again by this Court” and criticized the majority opinion for “reflect[ing] ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited.” In NIFLA v. Becerra (2018), he wrote a strong dissent from the Court’s opinion striking down a California law requiring anti-abortion fake pregnancy centers to post a notice informing women of their public health care options.
Justice Breyer has framed the Court’s reproductive rights jurisprudence as striking a careful balance in a country with diverse views on abortion. In Stenberg v. Carhart (2000), his majority opinion for the Court defended the landmark abortion decisions Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) as acts of consensus-building by the Court. On March 4, 2020, during oral argument in June Medical Services, he said that the Court’s abortion precedents from Casey to Whole Woman’s Health were attempting to answer the question of “what kind of rule of law do you have in a country that contains both sorts of people” with differing moral views on whether people have the right to control their own reproductive autonomy.
In sex discrimination cases, Justice Breyer voted to advance the cause of gender equality and empower mothers in the workplace. He joined the majority in U.S. v. Virginia (1996) which rejected sex-based classifications, especially those which “create or perpetuate legal, social, and economic inferiority of women.” He voted to uphold the Family Medical Leave Act, authored a majority opinion defending the rights of an employee who had suffered pregnancy discrimination in the workplace, and repeatedly pushed back on the government’s use of stereotypes about women and motherhood in lawmaking.
Today, we are deeply grateful for Justice Breyer’s tenure on the Court and his dedication to equal rights under law.
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