That’s exactly what happened Tuesday night when the Supreme Court refused to intervene to block Texas’ restrictive abortion law, making it the strictest of its kind to go into effect. The law, which was signed by Texas Gov. Greg Abbott in May, prohibits abortions once a fetal heartbeat is detected, which can occur before women even know they are pregnant. Opponents of the new law say it would ban 85% of abortions in the state.
The importance of the law – and the court’s early reluctance to step in to block it – extends far beyond Texas. As CNN wrote when it was passed in Texas, the legislation “could provide the Red States with a guide to enacting extreme abortion restrictions – without having to wait for the Supreme Court to reconsider Roe v. Wade “. The quirk of the law is that it allows any private citizen to sue an abortion provider who performs the procedure after six weeks – or anyone who helped perform that abortion.
The Texas news also emboldened the Liberals in their calls for Stephen Breyer, the court’s top liberal, to retire by the end of the 2022 session to ensure President Joe Biden is able to make a replacement choice while Democrats still control the Senate. .
Breyer, for his part, gave Democrats cause for hope last week in an interview with the New York Times.
“I don’t think I’m going to stay there until I die – I hope not,” Breyer, who turned 83 earlier this month, told The Times. Breyer recounted a conversation he had with the late Judge Antonin Scalia: “He said, ‘I don’t want someone appointed who will overthrow everything I have done for the past 25 years. “” Breyer noted that Scalia’s point would “inevitably be in the psychology” of his final decision.
It was a change from what Breyer told CNN’s Joan Biskupic earlier this summer. Breyer then said the factors in his decision were “primarily, of course, health. Second, the court.” But Breyer didn’t look like someone with one foot out. He told Biskupic he appreciated his new role as the court’s oldest liberal; [It] “Made a difference to me. … This is not a fight. It’s not sarcasm. It is a deliberation. “
Let’s be clear: a retirement of Breyer in 2022 would not fundamentally affect the calculation of a challenge of Roe vs. Wade. Even in this scenario, Biden would simply designate a liberal justice to replace a liberal justice – keeping the composition of the court unchanged at six conservatives against three liberals. But for the Liberals, making sure they don’t take another blow like they did in 2020 – when the seat of late Liberal Judge Ruth Bader Ginsburg was replaced by Tory Amy Coney Barrett – is essential.
Tuesday evening, (re) affirmed the issues at stake in the constitution of the Supreme Court. And will increase the pressure on Breyer to report his plans as soon as possible.
It remains to be seen whether he will bend under this pressure.