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Michele Grant: Why did Stephen Breyer, not Anthony Kennedy, write the opinion in the Texas abortion ruling?

Why did Justice Stephen Breyer, not the longer-serving Justice Anthony Kennedy, write the “Whole Woman’s Health” opinion, which threw out Texas’ undue burdens on abortion access?

The Supreme Court follows a seniority-based rule for assigning writing duties for its opinions. In a case where the Court is divided, the most senior justice holding the majority view ascribes authorship.

He or she can choose to write the opinion him- or herself; or he or she can give the task to a more junior justice.

Justice Kennedy has served on the Court longer than any of the other so-called liberal justices. In fact, he’s the longest-serving justice on the Court, bar none.

So when the votes were in on Whole Woman’s Health and the liberals had won, why didn’t Kennedy write the opinion?

After all, Kennedy is the last remaining Justice from the Planned Parenthood v. Casey (1992) plurality, confirming a right to abortion. And he wrote the majority opinion in Gonzales v. Carhart (2007), upholding the federal ban on a particular abortion procedure, intact dilation, and extraction.

Why not write Whole Woman’s Health, the first Supreme Court decision on abortion since 2007?

Here’s one of the reasons Justice Kennedy gave in 2007 to allow the government to ban a particular procedure: “While we find no data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”

This is an appeal to emotion, without evidence; a lawyer would call it an assertion, without proof.

Here’s one of the reasons Justice Breyer gave to throw out Texas’s abortion clinic restrictions this week: “[W]hen directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”

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Maybe Justice Kennedy gave the writing duties to Justice Breyer because he did not want to have to eat his own words.

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Michele Grant is an attorney in Philadelphia.

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