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Justice Breyer calls Supreme Court decision on Texas abortion law ‘very, very, very wrong’

In this Feb. 13, 2017, file photo, Supreme Court Justice Stephen G. Breyer listens during a forum called From the Bench to the Sketchbook at the French Cultural Center in Boston. (Steven Senne/AP)

Supreme Court Justice Stephen G. 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 antiabortion 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 week “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 A. Alito Jr., plus President Donald Trump’s nominees to the court, Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — said they would let the Texas law stand ahead of lower-court battles over whether it is constitutional.

After Texas’s 6-week abortion ban went in to effect, other Republican-led states implemented similar laws to spur test cases for challenging Roe v. Wade. (Video: Blair Guild/The Washington Post)

Chief Justice John G. Roberts Jr. joined the court’s three liberals, including Breyer, who argued to keep the law from being implemented as litigation plays out. 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 if the suing party prevails in court.

“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.”

What to know about the Texas abortion law

The court’s move drew sharp criticism from President 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 or anyone who provided transportation to a woman, or counseled or referred a woman for an abortion.

Breyer, the optimistic justice, shakes off defeats but warns of threats to Supreme Court’s authority

In recent years, Republican-led states have passed a wave of restrictive abortion laws, many of which have been blocked by courts while legal battles play out over whether they violate Roe v. Wade, the 1973 Supreme Court decision that said a woman has a constitutional right to abortion until viability, usually about 22 to 24 weeks.

The Texas law took effect Sept. 1, effectively ending most abortions in the nation’s second-most-populous state. The Texas law provides no exceptions to the six-week rule for victims of rape, sexual abuse or incest.

The Justice Department sued Texas, declaring that the law is unconstitutional and asking for an injunction blocking its enforcement. At a news conference, Attorney General Merrick Garland said he was committed to exploring legal avenues to challenge the ban.

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A Supreme Court review of a Mississippi abortion law could pave the way for many other state laws that restrict or ban the procedure. (Video: Joshua Carroll/The Washington Post, Photo: Melina Mara/The Washington Post)