WASHINGTON — Supreme Court Justice Stephen Breyer is criticizing the high court’s refusal to block a Texas abortion statute that bans the procedure as early as six weeks into pregnancy, allowing the red state to implement the strictest anti-abortion law in the nation.
In an interview with NPR, the 83-year-old justice appointed by President Bill Clinton said the Supreme Court’s unsigned opinion last Wednesday “was very, very, very wrong — I’ll add one more very.”
In a 5-to-4 decision, the court’s most consistent conservatives — Justices Clarence Thomas and Samuel Alito, plus President Donald Trump’s nominees to the court Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — said they would let the Texas law stand ahead of lower court battles over whether it is constitutional.
Chief Justice John Roberts joined the court’s three liberals, including Breyer, who argued against keeping the law from being implemented as it plays out in court. The law allows private citizens to take legal action against anyone who helps a woman terminate her pregnancy — setting a $10,000 award to be paid by the defendant for any successful lawsuit to stop an abortion.
“We thought that, that particular case should not be decided just on an emergency basis,” Breyer said in the interview, “but it’s a procedural matter and so we’ll see what happens in that area when we get a substantive matter in front of us.”
The court’s move drew sharp criticism from President Joe Biden, who said the court’s action “unleashes unconstitutional chaos.” House Speaker Nancy Pelosi, D-Calif., pledged to call a vote on legislation that would enshrine a woman’s right to an abortion into federal law.
Abortion providers say the ban effectively eliminates the guarantee in Roe v. Wade and subsequent Supreme Court decisions that women have a right to end their pregnancies before viability, and that states may not impose undue burdens on that decision.
The Texas law is novel for incentivizing private citizens to police abortions. It empowers anyone living in the state of Texas to sue an abortion provider or anyone else they suspect is “aiding and abetting” abortions after the six-week mark. Those opposing the law say this may be far-ranging and could include the abortion provider, to anyone who drove, counseled or referred a woman for an abortion.
In recent years, Republican-led states have passed a wave of restrictive abortion laws. Two states this year — Montana and New Hampshire — have banned abortion after 12 weeks, and 17 others tried.
The Texas law took effect Sept. 1, effectively ending most abortions in the nation’s second-most-populous state. There are also currently no exceptions to the six-week rule for victims of rape, sexual abuse or incest.
On Thursday, the Justice Department sued Texas, declaring the law unconstitutional and asked for an injunction blocking its enforcement. At a news conference, Attorney General Merrick Garland said he was committed to explore legal avenues to challenge the ban.