Bench Memos

Law & the Courts

Seventh Circuit Panel Divides on How Marks Rule Applies to June Medical Abortion Ruling

Last Friday in Planned Parenthood v. Box, a divided panel of the Seventh Circuit affirmed a district court’s preliminary injunction against a provision of Indiana law that requires that a minor’s parents be notified that she is seeking judicial authorization for an abortion, unless the judge authorizing the abortion finds that parental notice is not in the minor’s best interests. Judge David F. Hamilton wrote the majority opinion, which Judge Ilana D. Rovner joined. Judge Michael S. Kanne dissented.

The Supreme Court remanded the case to the Seventh Circuit after issuing its opinion last June in June Medical Services v. Russo. In June Medical, Chief Justice Roberts issued an opinion concurring in the judgment that explained his critical fifth vote against a Louisiana law regulating abortion providers. A major question for the Seventh Circuit panel on remand was how to apply the “narrowest ground” rule in Marks v. United States (1977) for discerning the precedential force of Supreme Court decisions issues without a majority opinion.

I will not try to summarize the extensive arguments between Judge Hamilton and Judge Kanne on how Marks applies but will instead try to distill the essence of the disagreement.

Hamilton argues that the Marks rule requires a court to find the “narrow, common ground” between the June Medical plurality and the Chief Justice’s concurrence. He identifies that ground as the proposition that the Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt “has stare decisis effect on essentially identical facts.” Because Whole Woman’s Health hasn’t been overruled, Hamilton stands by the panel’s earlier decision applying a balancing test of benefits and burdens to bar enforcement of Indiana’s parental-notification requirement.

Kanne agrees with Hamilton on what the Marks rule requires. But he determines that the “common denominator” between the June Medical plurality and the Chief’s concurrence is the “finding of a ‘substantial obstacle.’” He points out that the Chief “explicitly rejected” the “added weighing of benefits” that the original panel decision engaged in. He highlights in particular these two sentences by the Chief:

Under principles of stare decisis, I agree with the plurality that the determination in Whole Woman’s Health that Texas’s law imposed a substantial obstacle requires the same determination about Louisiana’s law. Under those same principles, I would adhere to the holding of Casey, requiring a substantial obstacle before striking down an abortion regulation. [Emphasis added.]

Kanne also notes that the Sixth Circuit and the Eighth Circuit have reached the same conclusion he did.

As I read June Medical, Kanne clearly has the better of the argument. The plurality and the Chief disagreed on what Whole Woman’s Health meant and on how to read it consistent with Planned Parenthood v. Casey (1992), which it said it was abiding by and which (as the Chief notes) all parties in June Medical “agree[d] … provides the appropriate framework to analyze Louisiana’s law.” Of a passage in Whole Woman’s Health that seems to contemplate an inquiry into benefits and burdens, the Chief writes:

Read in isolation from Casey, such an inquiry could invite a grand “balancing test in which unweighted factors mysteriously are weighed.” Under such tests, “equality of treatment is . . . impossible to achieve; predictability is destroyed; judicial arbitrariness is facilitated; judicial courage is impaired.”

In this context, courts applying a balancing test would be asked in essence to weigh the State’s interests in “protecting the potentiality of human life” and the health of the woman, on the one hand, against the woman’s liberty interest in defining her “own concept of existence, of meaning, of the universe, and of the mystery of human life” on the other. There is no plausible sense in which anyone, let alone this Court, could objectively assign weight to such imponderable values and no meaningful way to compare them if there were. Attempting to do so would be like “judging whether a particular line is longer than a particular rock is heavy.” Pretending that we could pull that off would require us to act as legislators, not judges, and would result in nothing other than an “unanalyzed exercise of judicial will” in the guise of a “neutral utilitarian calculus.”


To be sure, the Court [in Whole Woman’s Health] at times discussed the benefits of the regulations, including when it distinguished spousal notification from parental consent. But in the context of Casey’s governing standard, these benefits were not placed on a scale opposite the law’s burdens. Rather, Casey discussed benefits in considering the threshold requirement that the State have a “legitimate purpose” and that the law be “reasonably related to that goal.” So long as that showing is made, the only question for a court is whether a law has the “effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

Yet more:

Whole Woman’s Health held that Texas’s admitting privileges requirement placed “a substantial obstacle in the path of women seeking a previability abortion,” independent of its discussion of benefits. Because Louisiana’s admitting privileges requirement would restrict women’s access to abortion to the same degree as Texas’s law, it also cannot stand under our precedent.

(Various citations omitted.)


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