U.S. Supreme Court Justice Stephen Breyer: Author of Leading Decisions Protecting Abortion Rights
Serving on the Court for 28 years, Justice Breyer also helped advance gender equality, LGBTQ rights, and non-discrimination principles.
U.S. Supreme Court Justice Stephen Breyer has announced his retirement from the bench after serving nearly 28 years as a reliable champion of reproductive rights and gender equality.
Justice Breyer’s legal decisions protected reproductive rights and access in the U.S. and helped to advance gender equality. Writing for the Court, Justice Breyer authored decisions in June Medical Services v. Russo and Whole Woman’s Health v. Hellerstedt — two significant victories for abortion rights in cases brought by the Center for Reproductive Rights.
“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,” said Nancy Northup, President and CEO for the Center for Reproductive Rights in a statement issued January 26. “Today, we are deeply grateful for Justice Breyer’s tenure on the Court and his dedication to equal rights under law,” added Northup.
“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,” added Northup.
Breyer also recently joined notable dissents in Whole Woman’s Health v. Jackson, the Center’s case challenging Texas’s blatantly unconstitutional ban and “vigilante” scheme on abortion after six weeks of pregnancy.
Court to Rule Soon on Most Consequential Abortion Rights Case in Generations
Justice Breyer plans to retire after the end of the current Supreme Court term, presuming his successor has been nominated and confirmed by that time. As such, Justice Breyer will join the other justices ruling on Dobbs v. Jackson Women’s Health Organization, the most consequential abortion rights case in generations.
In the case, Mississippi has asked the Court not only to uphold its 15-week abortion ban, but to also overturn Roe v. Wade and almost 50 years of precedent and rule that there is no right to abortion in the U.S. Constitution. The Court recognized the right to abortion in its 1973 Roe v. Wade decision and has repeatedly affirmed that right ever since.
The Court heard oral arguments in December 2021 in Dobbs v. Jackson Women’s Health—which was brought by the Center to challenge Mississippi’s ban. The case reached the Supreme Court after Mississippi appealed a Circuit Court ruling striking down the state’s ban as unconstitutional and marks the first time the Court will rule on the constitutionality of a pre-viability abortion ban since Roe. The Court will consider the question of whether all pre-viability prohibitions on abortion are unconstitutional, calling into question the future of the abortion rights in the U.S. Read more about Dobbs v. Jackson Women’s Health Organization here.
Justice Breyer Secured Protections for Sexual and Reproductive Health and Rights and Access to Health Care
Justice Breyer’s opinions demonstrated his commitment to protecting sexual and reproductive rights, including abortion, and increasing access to health care.
In Whole Woman’s Health v. Hellerstedt in 2016, Justice Breyer authored a majority opinion striking down two Texas laws that would have shut down three-quarters of the state’s clinics. Justice Breyer concluded: “Both the admitting-privileges and the surgical-center requirements place a substantial obstacle in the path of women seeking a pre-viability abortion, constitute an undue burden on abortion access, and thus violate the Constitution.”
Writing for the Court, Justice Breyer affirmed that the undue burden legal standard requires that “courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.” In other words, unless benefits outweigh burdens, the law is unconstitutional. The decision also “reaffirmed that real-world impacts of abortion restrictions—particularly on marginalized communities—matter in the undue burden analysis.”
Justice Breyer’s opinion in Whole Woman’s Health has been consistently applied by courts as a bulwark against laws restricting access to abortion care.
Justice Breyer also authored the plurality opinion in June Medical Services v. Russo in 2020 affirming the Court’s undue burden legal standard, reiterating that courts must “weigh the law’s asserted benefits against the burdens.” The decision struck down a Louisiana law, preventing doctors from providing abortion services in the state unless they secured admitting privileges at a hospital within 30 miles, that would have devastated access to abortion in the state.
In the decision joined by Justices Ruth Bader Ginsberg, Elena Kagan, and Sonia Sotomayor, Justice Breyer wrote, “We apply the constitutional standards set forth in our earlier abortion-related cases, and in particular in Casey and Whole Woman’s Health” and “We consequently hold that the Louisiana statute is unconstitutional.”
In Whole Woman’s Health v. Jackson in 2021—which challenged Texas’s unconstitutional law banning abortion after six weeks and incentivized individuals to bring costly and harassing lawsuits against anyone who provides abortion care or assists someone in obtaining an abortion—Justice Breyer joined Justices Sonia Sotomayor and Elena Kagan in dissenting from the Court’s majority opinion refusing to block the law.
The dissent warned about the impact of the Court’s ruling on federal rights, the Constitution, and the Court itself, stating, “For nearly three months, the Texas Legislature has substantially suspended a constitutional guarantee: a pregnant woman’s right to control her own body. . . . The Court should have put an end to this madness months ago, before S. B. 8 first went into effect. It failed to do so then, and it fails again today.”
Also in 2021, Breyer wrote the majority opinion in California v. Texas, which upheld the Affordable Care Act (ACA) in the latest challenge to the law and ensured millions of people could keep their health care coverage. The Court ruled that neither the states nor the individual plaintiffs who sought to challenge the ACA, had standing to sue.
A Committed Supporter of Gender Equality and Non-discrimination Principles
For nearly three decades on the Court, Justice Breyer joined decisions that advanced non-discrimination principles, gender equality, and equal rights for all people.
In nearly every sex discrimination case he heard, Justice Breyer voted to advance gender equality. In U.S. v. Virginia (1996), Justice Breyer joined the Court’s majority decision holding that the Virginia Military Institute’s males-only admissions policy violated the Equal Protection Clause. Justice Breyer joined Justice Ruth Bader Ginsburg’s majority opinion, which broadly rejected sex-based classifications and emphasized that such classifications should never be used “to create or perpetuate legal, social, and economic inferiority of women.”
In Young v. United Parcel Service (2015), Justice Breyer authored the majority opinion which held that a pregnant employee may bring a pregnancy discrimination claim under the Pregnancy Discrimination Act. The case involved an employer that refused to provide accommodations that were given to other employees with similar restrictions.
Justice Breyer has also been a consistent supporter of LGBTQ rights, voting in almost every case to advance LGBTQ equality. He joined the majority of the Court in Obergefell v. Hodges (2015), holding that the Due Process Clause of the Fourteenth Amendment guarantees the right to marry as one of the fundamental liberties that applies to same-sex couples in the same manner as it does to heterosexual couples.
Justice Breyer’s Long Career in Law
Justice Breyer was confirmed by the U.S. Senate to serve on the Supreme Court in July 1994 after being nominated by President Bill Clinton to replace retiring Justice Harry Blackmun. On August 3, 1994, he was sworn in as the 108th Justice to serve on the Court.
Prior to his nomination to the Court, Breyer was appointed to serve on the U.S. Court of Appeals for the First Circuit in 1980 and was named Chief Judge in 1990. Before that, he served as Special Assistant to the Assistant U.S. Attorney General for Antitrust (1965-1967), Assistant Special Prosecutor of the Watergate Special Prosecution Force (1973), and Special Counsel and Chief Counsel to the Senate Judiciary Committee (1974-1980).
Biden Expected to Nominate New Justice Soon
At a White House press conference with Justice Breyer on January 27, 2022, President Joe Biden called it a “bittersweet day” and praised Justice Breyer for his “remarkable career of public service and his clear-eyed commitment to making our laws work for the people.”
President Biden added that he expects to nominate a replacement for Justice Breyer by the end of February – a nominee who will be the first Black woman nominated to the Supreme Court.
The Center will be monitoring the positions of the new nominee, especially on issues pertaining to reproductive rights, gender equality, and access to health care. Watch for more information from the Center after the nomination is announced.
Read more:
Dobbs v. Jackson Women’s Health Organization
Whole Woman’s Health v. Jackson
