Justice Breyer Calls Out Supreme Court's Decision on Texas Abortion Ban

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Associate Justice Stephen Breyer said he opposes the Supreme Court’s 5-4 ruling not to block a Texas abortion ban.

The Supreme Court had voted not to block a Texas law that went into effect at the beginning of the month that prohibits virtually all abortions after a heartbeat is detected, which is typically after six weeks of pregnancy.

The Court denied an emergency appeal from abortion providers to block the legislation, saying they had not met the burden required for a stay of the law.

In remarks to NPR, Breyer called the decision not to block the law “very, very, very wrong.”

“I’ll add one more ‘very,’ ” he said. “And I wrote a dissent. And that’s the way it works.”

He noted that the court’s decision was a procedural one “and so we’ll see what happens in that area when we get a substantive matter in front of us.”

In his own dissent, Breyer noted that “Texas’s law delegates to private individuals the power to prevent a woman from obtaining an abortion during the first stage of pregnancy,” adding that “a woman has a federal constitutional right to obtain an abortion during that first stage.”

The news of the Supreme Court’s ruling prompted Senator Dick Durbin (D-Ill.), who is the Senate Judiciary Committee’s top Democrat, to announce that a panel will probe the Supreme Court’s practice of deciding weighty cases on an emergency basis.

“The Supreme Court must operate with the highest regard for judicial integrity in order to earn the public’s trust,” Durbin said in a statement. “This anti-choice law is a devastating blow to Americans’ constitutional rights — and the Court allowed it to see the light of day without public deliberation or transparency.”

He added: “At a time when public confidence in government institutions has greatly eroded, we must examine not just the constitutional impact of allowing the Texas law to take effect, but also the conservative Court’s abuse of the shadow docket.”

The use of shadow-dockets became more common under the Trump administration, when the balance of the court was tipped to the right.