The Nine [75]
Everyone in the courtroom was waiting for O’Connor to tip her hand. Finally, she broke her silence to say: “Mr. Stenberg, let me ask you a question. There is no exception under this statute, as I read it, for exceptions for the health of the woman, is that correct?” He answered, “That is correct, Your Honor, and it’s not necessary.”
That, of course, was a matter of opinion. The question illustrated O’Connor’s priorities when it came to abortion. She was all for limitations and restrictions, but not at the cost of women’s health. She didn’t care if laws were designed to talk women out of having abortions, but the choice ultimately had to belong to the women themselves.
The issue in Stenberg was not simple. The medical testimony about the kinds of procedures outlawed by the Nebraska law, and the effect of the bans on women’s health, was closely and inconclusively debated at the oral argument and in the briefs. The result of the conference on Friday, April 28, was similarly ambiguous. Four justices—Rehnquist, Scalia, Kennedy, and Thomas—wanted to uphold the law. Four others—Stevens, Souter, Ginsburg, and Breyer—wanted to strike it down as a violation of Roe and Casey. O’Connor said she would vote to strike the law down if it did in fact jeopardize women’s health.
The result left Stevens as the senior justice in a tenuous majority. The customary route in these circumstances would have been for Stevens to give the opinion to O’Connor, who was the shakiest member of the coalition. But Stevens gave it to Breyer instead. O’Connor was such a reluctant member of the majority that there was a possibility that she might find, as justices sometimes did, that an opinion “wouldn’t write”—that is, trying to explain the law’s unconstitutionality might push her to an opposite conclusion. Breyer and O’Connor had become close friends, and Breyer had the political skills to keep his senior colleague on board. Moreover, Breyer had the technical expertise to assemble the complex medical evidence in support of invalidating the law. So, with the days in the term slipping away, Breyer set out to save his majority in what would certainly be his most important opinion in six years on the Court.
“Steve,” a friend once told Breyer, “you think like an eagle, but you write like a turkey.” Yet his plodding, antirhetorical style served Breyer well in the Stenberg assignment. He determined to make almost no reference to Roe, Casey, and the right to privacy; of those two cases, Breyer wrote, “We shall not revisit those legal principles. Rather, we apply them to the circumstances of this case.” To do so, he focused on the question O’Connor asked in oral argument. He set out to show that the Nebraska law deprived women of the right to the best medical choices for their health. Or, as Breyer put it in his gnarled prose, “The State fails to demonstrate that banning [this kind of abortion] without a health exception may not create significant health risks for women, because the record shows that significant medical authority supports the proposition that in some circumstances, [it] would be the safest procedure.”
Breyer had his law clerk on the case check almost daily with the O’Connor chambers about whether she was with him on the case. At any moment, she might pull out of the majority and write an opinion merely concurring in the judgment; that would make her opinion, not Breyer’s, the controlling authority on abortion law. For this reason, in his politically savvy way, Breyer persuaded Stevens and Ginsburg not to circulate their concurring opinions until he had O’Connor’s commitment to the majority; Breyer feared that their more liberal views might sour O’Connor on the whole issue. Breyer and O’Connor were both fundamentally more