“I’ll add one more ‘very,’ ” the liberal Justice told NPR in an interview published Thursday. “And I wrote a dissent. And that’s the way it works.”
Breyer’s comments build on his pointed dissent in the Supreme Court’s 5-4 ruling that allowed the Texas law — which is one of the strictest in the nation and bans abortion before many people know they are pregnant — to remain on the books.
In an unsigned opinion, the majority wrote that while the abortion providers had raised “serious questions regarding the constitutionality of the Texas law,” they had not met a burden that would allow the court to block it at this time due to “complex” and “novel” procedural questions.
All three of former President Donald Trump’s appointees — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — voted with the majority to let the Texas law remain in effect.
Under the law, abortion is prohibited when a fetal heartbeat is detected, and there is no exception for rape or incest — although there is an exemption for “medical emergencies.”
“Texas’s law delegates to private individuals the power to prevent a woman from obtaining an abortion during the first stage of pregnancy,” Breyer wrote in dissent. “But a woman has a federal constitutional right to obtain an abortion during that first stage.”
He told NPR that the Texas case should not have been decided on an emergency basis, but said, “We’ll see what happens in that area when we get a substantive matter in front of us” in the future.
Still, by letting the law take effect, the conservative majority may already have tipped its hand on whether it is poised to reverse or at least undercut Roe v. Wade, the ruling that declared women’s constitutional right to end a pregnancy.
The Biden Justice Department on Thursday sued the state of Texas over the new six-week abortion ban, calling it unconstitutional.
Announcing the lawsuit at a news conference in Washington, Attorney General Merrick Garland said the Texas law’s “unprecedented” design seeks “to prevent women from exercising their constitutional rights by thwarting judicial review for as long as possible.”
“The act is clearly unconstitutional under longstanding Supreme Court precedent,” Garland said.