'Stealthy' Justice Stephen Breyer had a big impact on abortion. That legacy is now in jeopardy

John Fritze

WASHINGTON – Associate Justice Stephen Breyer wrote some of the Supreme Court's most important decisions on abortion over the course of his tenure, knocking down a series of barriers erected in conservative states that limited access to the procedure. 

But as Breyer prepares to step down this year, his legacy on abortion may go with him.

The senior-most liberal on the Supreme Court has announced he will retire nearly three decades after President Bill Clinton nominated him in 1994. Breyer's reputation as a justice who at times could bridge the court's ideological divide led him to write opinions that built on the 1973 Roe v. Wade decision that established a constitutional right to abortion.

"He's had a giant impact on how we have understood access to abortion," said Fatima Goss Graves, president of the National Women's Law Center. "It makes me wonder what it must be like for him in this moment – to step down in this year."

Breyer arrived at the Supreme Court at a time when seven of the nine justices were appointed by Republican presidents – one more than the current 6-3 split – though many would be unrecognizable as conservatives today. Two years before Breyer was confirmed, a plurality of GOP-picked justices affirmed the central holding of Roe.

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This year, as the court considers a challenge to Mississippi's ban on most abortions after 15 weeks of pregnancy, a majority of the justices appear to be headed toward at least undermining Roe, if not overruling it entirely. In December, in a separate case, the court let stand a Texas law banning abortion after six weeks of pregnancy while litigation challenging it continues in the lower courts.

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Because the justices are expected to rule in the Mississippi dispute in early summer, there's a chance the case will be Breyer's last – an outcome that would underscore just how much the nation's highest court has shifted on abortion during his tenure.

"Justice Breyer’s retirement comes at a moment of crisis for reproductive rights in America," said Nancy Northup, president of the Center for Reproductive Rights, which represented a Texas abortion clinic at the Supreme Court last year.   

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On that much, at least, abortion rights and anti-abortion groups agree. 

"The news of this vacancy comes as we await the court’s ruling in (the Mississippi case) this summer followed by the pivotal midterm elections," said Marjorie Dannenfelser, president of the anti-abortion group Susan B. Anthony List. "The stakes have never been higher in the fight to secure legal protections for unborn children."

Supreme Court Associate Justices Ruth Bader Ginsburg, left, and Stephen Breyer talk prior to a ceremonial swearing-in ceremony for new Supreme Court Justice Samuel Alito in the East Room of the White House, Feb. 1, 2006.

Breyer's 'undue burden'  

In 1992, a fractured court ruled in Planned Parenthood v. Casey that states could regulate abortion if they didn't create an "undue burden" on a person's right to end a pregnancy. The vague language prompted a flurry of laws testing the boundaries of what, exactly, an "undue burden" is.

In 2000, in an opinion written by Breyer, the court struck down a Nebraska law banning a common method to terminate a pregnancy in the second trimester. The law, Breyer wrote, violated the Casey standard by "unduly burdening the right to choose abortion itself." Sixteen years later, the court invalidated a Texas law that required abortion providers to have admitting privileges at nearby hospitals. Writing for the majority again, Breyer said the law put a "substantial obstacle in the path" of people seeking the procedure.

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The court took up the issue again two years ago, striking down a similar Louisiana law requiring doctors who perform abortions to have admitting privileges at nearby hospitals. Chief Justice John Roberts cast the deciding vote, though he did not sign on to the lead opinion – which was once again written by Breyer.

"The law consequently imposes an 'undue burden' on a woman’s constitutional right to choose to have an abortion," Breyer wrote.

Breyer may not be the first justice abortion rights groups point to when they think about the court's jurisprudence but experts say he managed to "give teeth" to the loosely defined undue burden standard. He did so through a series of opinions that delved deeply into the legal weeds, rather than the politics of the divisive issue.

"He was, in a kind of stealthy way, one of the most important figures on abortion," said Mary Ziegler, a law professor at Florida State University who is also a visiting professor at Harvard Law School. "Breyer is less given to high-flown rhetoric about abortion. He has tended to write much more earthy, really fact-based opinions." 

Post-Breyer court 

Breyer has spent years strengthening the undue burden standard. But as he prepares to leave the court his colleagues are considering a request to blow it up.

In the blockbuster Mississippi abortion case, Dobbs v. Jackson Women’s Health Organization, the state is asking the Supreme Court to overturn Roe v. Wade. If that doesn't happen, the state's next request is for the court to redefine the undue burden standard as a collective burden on society rather than one that applies to an individual. 

In other words, Mississippi argues its ban on abortions after 15 weeks of pregnancy can't be an undue burden because it doesn't affect that many people. The state's only abortion clinic already declines to perform the procedure after 16 weeks. Moving the goal post back one week, the state has argued, would affect only about 4.5% of people who obtained an abortion. 

"The act reduces by only one week the time in which abortions are available in Mississippi," the state's attorneys told the high court in legal papers in July. "Under no sound measure of the act’s facial validity does it impose an unconstitutional burden."

But that isn't how constitutional rights or the undue burden standard should work, the clinic counters, and it would flip the way Breyer and others have conceptualized the undue burden standard for decades. It isn't about how a regulation or law burdens a society, they say. It's about the obstacles that are placed in the path of any single individual.  

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"The state’s brute number crunching is at odds with the recognition of constitutional rights in general," the clinic told the court last year in legal papers. "The very essence of a constitutional right is that the government cannot outright prohibit a certain subset of people, no matter how small, from exercising that right."

It's unlikely Breyer could have stopped the shift on abortion had he remained on the court, just as it's unlikely anyone nominated by President Joe Biden will have a significant influence on the court's direction in the near term. Breyer was a reliable vote for the court's liberal bloc on abortion issues.

His replacement presumably will be too.