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The Supreme Court, Justice Breyer and Abortion

Susan Estrich on

It might just be a coincidence that former Justice Stephen Breyer's new book had its official publication date on the same day the court heard argument on the biggest abortion case since Dobbs v. Jackson Women's Health Organization, which overruled Roe v. Wade. In his important new book, "Reading the Constitution: Why I Chose Pragmatism, Not Textualism," and in published interviews, Breyer takes on the theories of originalism and textualism, which the new justices appointed by Donald Trump have adopted in interpreting the Constitution. Breyer does not question the good faith of these new members of the court. He does not argue that they are simply voting based on the partisan politics of the man who appointed them, a position which, I must admit, I sometimes think is sadly responsible for the extremism of this court. Rather, he gives them their due: that they are in fact guided by two theories of constitutional interpretation that are quite simply wrong.

Originalism means that the Constitution should be interpreted according to the intent and understanding of the white male property owners who wrote it, rather than in light of contemporary values and understanding, and the practical consequences of their decision. Textualism focuses on the actual words, including punctuation, of the Constitution, in their original context. The illusion of these theories is that they provide clear answers to hard case, thus limiting the extent to which a judge's personal politics and values dictate the answers. It's an illusion because judges aren't historians, and even if they were, the world has changed drastically, and in unimaginable ways, in the centuries since the Constitution was drafted. There was no internet in the 18th century, and neither originalism nor textualism can tell you how it should be regulated consistent with the First Amendment.

Breyer dissented in Dobbs, not because he is personally pro-choice, but because he believes in respect for established precedent and a living Constitution that is broad enough to recognize a right to privacy for women. The majority, he argues, wrongly assumed that in overruling Roe, the court would return abortion decision-making to the states and the political process, taking judges out of the process. But that is clearly not the case, nor will it be.

"The Dobbs majority's hope that legislatures and not courts will decide the abortion question will not be realized," he wrote.

He was more forceful in his interview with the New York Times. "There are too many questions," he said. "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."

 

One of those questions was before the court on Tuesday, when a majority of the justices expressed skepticism about what was clearly a partisan political effort to curtail the availability of medicated abortion. The suit was brought by a group of anti-abortion doctors, in a district in Texas with exactly one judge, an outspoken opponent of abortion, Judge Matthew J. Kacsmaryk, who, as they hoped, invalidated the FDA's approval of mifepristone. In August, a panel of conservative judges on the 5th circuit ruled that the medication should remain legal but imposed significant restrictions on access. The anti-abortion forces were hoping to reinstate the original ban, a position opposed by a 2-1 margin, or more, in public opinion polls. Justices Clarence Thomas and Samuel Alito were sympathetic to a position that, if adopted, would further reduce public trust in the court, as Dobbs did.

The court majority -- minus Thomas and Alito -- may be able to avoid another ruling as unpopular as Dobbs by focusing on the narrow ground of whether the plaintiff doctors have "standing" to challenge the mifepristone rules -- whether they can show that they suffer any harm as a result of it -- but no such obvious escape path will be open to them later next month when they face the unprecedented argument that Donald Trump should enjoy absolute immunity from criminal prosecution. Will partisan politics win out? Will the court purport to play historians in search of an answer? Trust in the court is at an all-time low. The rule of law demands as a precondition that even those who disagree with a particular result accept its force. That principle will be at stake. Breyer's pragmatic approach yields only one answer. It will be up to the three Trump appointees, and the chief justice, to decide. Hopefully, they will read Breyer's book before they do.

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