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Justice Breyer Says Court's Dobbs Decision Leaves ‘Too Many Questions’

The U.S. Supreme Court’s decision to overturn abortion as a constitutional right was naive and leaves “too many questions,” former Justice Stephen Breyer reportedly said in a recent interview that characterized the court as taking a wrong turn but a restorable one.

“There are too many questions,” Breyer told The New York Times about the lingering effects of the court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which entrusted states with the right to outlaw or reduce access to the medical procedure. Breyer was among three justices who dissented on the ruling immediately before his retirement.

“Are they really going to allow women to die on the table because they won’t allow an abortion which would save her life? I mean, really, no one would do that. And they wouldn’t do that. And there’ll be dozens of questions like that,” he said while discussing the ruling and the March 26 release of his book, “Reading the Constitution: Why I Chose Pragmatism, Not Textualism.”

“The Dobbs majority’s hope that legislatures and not courts will decide the abortion question will not be realized,” he’s quoted by the Times in an excerpt of his book.

Then-Supreme Court Justice Stephen Breyer is seen shortly before his retirement in 2022.
Then-Supreme Court Justice Stephen Breyer is seen shortly before his retirement in 2022. via Associated Press

The book, as the title suggests, critiques the current conservative-leaning court as being too focused on determining and enforcing the Constitution’s original meaning, no matter how archaic and contrasting the law, written in 1787, may be to modern society, according to the Times’ review.

Justice Samuel Alito, in writing for the court’s majority in the Dobbs ruling, reasoned that abortion is not “deeply rooted in this Nation’s history and tradition,” and, therefore, it is not protected as a right.

Breyer reportedly laid out three large problems with originality in his book, the first being that judges are not necessarily historians and able to adequately interpret the Constitution as it was understood at the time it was adopted.

By focusing on originality, they’re also not considering “the practical consequences of the constitutional rules they propound” or “the ways in which our values as a society evolve over time as we learn from the mistakes of our past,” he wrote.

Breyer reportedly did not accuse any of the judges of being partisan or acting in bad faith. Pictured from the left, bottom row: Justice Sonia Sotomayor, Justice Clarence Thomas, Chief Justice of the United States John Roberts, Justice Samuel Alito and Justice Elena Kagan. Top row, from left: Justice Amy Coney Barrett, Justice Neil Gorsuch, Justice Brett Kavanaugh and Justice Ketanji Brown Jackson.

Breyer reportedly did not accuse any of the justices of being partisan or acting in bad faith. Without stating names, he did appear to caution three Supreme Court justices appointed by then-President Donald J. Trump — Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — against rushing any ruling in any major court case.

“Major changes take time, and there are many years left for the newly appointed justices to decide whether they want to build the law using only textualism and originalism,” he wrote.

The Supreme Court’s next major abortion case is scheduled for March 26, the same day as Breyer’s book is to be released. The court will decide on access to a commonly used abortion pill, mifepristone.

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