On Abortion Cases, Breyer's Is a Harsh Legacy

The retirement of Supreme Court Justice Stephen Breyer has just been announced. From the perspective of the ideological makeup of the court, it is of little consequence. Whomever is nominated by Joe Biden — or those tasked with doing his work for him now that he appears incapable — will hold the same extreme views on abortion — and a host of other issues — as the retiring justice.

In other words, the Democrats will nominate someone just as bad, or worse, than Breyer. Those of us dedicated to ending abortion in our country will be ready and able to expose the extremism of the nominee, immediately and unceasingly, and will oppose the confirmation. Moreover, we will hold each U.S. senator accountable at the voting booth for how they vote on the nomination.

Breyer’s retirement will not impact the decision in the Dobbs case, which will decide the constitutionality of Mississippi’s law to protect babies after 15 weeks in the womb and could overturn Roe v. Wade.

There’s no doubt that Breyer has already cast his erroneous vote in the case, and it doesn’t take a clairvoyant to predict which way it went. It may well be argued that Breyer leaves behind a brutal legacy thanks to his opinions on abortion cases brought before the high court. The most egregious examples were his support of partial-birth abortion both in the Stenberg v. Carhart case (2000) and the Gonzales v. Carhart case (2007).

Partial-birth abortion uses a horrendous birth process to end the life of the baby after he or she has been partially delivered, and is still alive. Breyer wrote the Stenberg decision, in which he noted the description of the barbaric abortion technique “may seem clinically cold or callous to some, perhaps horrifying to others.”

To whom would such a death not seem horrifying? Apparently though, it was something Breyer could live with so as not to impose an “undue burden” on a mother seeking a late-term abortion by any means necessary.

In 2016’s Whole Woman’s Health v. Hellersdtedt, and again in 2019’s June Medical Services v. Russo, Breyer voted against safeguarding the health of women and in favor of allowing abortion providers to continue providing shoddy medical care in unsafe facilities.

Breyer also erroneously and offensively held, in his dissent in the 2018 NIFLA v. Becerra case, that the state could force pregnancy centers, which are founded to provide alternatives to abortion, to notify their clients as to how they can obtain abortions.

In the Dobbs case, which was argued Dec. 1, Breyer talked about the importance of the court upholding previous precedents — in this case the wrongly decided Roe v. Wade decision of 1973 — if it would appear the gang of nine were surrendering to political pressure. The irony was lost on no one that by upholding Roe, the court would be caving to political pressure from the left, with abortion activists ready to burn down the country and Democrats waiting to pack the court with justices who share their abortion extremism.

Biden has promised to nominate a Black woman for the next Supreme Court post, and now Breyer’s strategic retirement gives him that opportunity. But it doesn’t matter whom he nominates, because we know how they will deal with abortion, that it’s a societal good and that every woman should have one.

A Supreme Court justice nominated by a Democrat has no freedom and no choice when it comes to abortion. They must toe the party line or step back into obscurity.

And this, of course, raises the overall problem that the Democrat nominees, in their judicial philosophy and practice, don’t seem to feel any obligation to stay rooted in the Constitution, its structure or its history. That is a fundamental debate in which the nation, on the occasion of another Supreme Court vacancy, would be well advised to engage in a substantive way.