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Divided Sixth Circuit Upholds Kentucky Abortion Regulations

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On Friday, in EMW Women’s Surgical Center, et al. v. Friedlander, a divided panel of the U.S. Court of Appeals for the Sixth Circuit vacated a permanent injunction against Kentucky’s requirement that abortion provides have transfer agreements with local hospitals. The opinion, by Judge Joan Larsen joined by Judge Chad Readler, concluded the district court was wrong to conclude enforcement of the rules would leave Kentucky without a licensed abortion provider. In the majority’s view, the plaintiffs could not show that Kentucky’s requirements would impose an “undue burden” on the right of a woman to obtain an abortion Judge Eric Clay dissented.

Of particular interest is Judge Larsen’s discussion of how to understand the “undue burden” standard in light of the Supreme Court’s decision in June Medical Services v. Russo, in which the Court invalidated Louisiana’s admitting privilege requirement for abortion providers, but without a controlling majority opinion. In June Medical Services, the Court split 4-1-4, with the Chief Justice providing the fifth vote to invalidate the Louisiana regulations while also rejecting the interpretation of “undue burden” adopted by the Court in Whole Women’s Health v. Hellerstedt. 

Here is how Judge Larsen evaluated how lower courts should apply June Medical Services.

Because no opinion in June Medical Services garnered a majority, we, as a lower court, have the “vexing task” of deciding which opinion controls. . . . In this situation, the Supreme Court has instructed us to treat the “position taken by [the Justice or Justices] who concurred in the judgment[] on the narrowest grounds” as “the holding of the Court.” Marks v. United States, 430 U.S. 188, 193 (1977). . . . We therefore “must follow the reasoning of the concurring opinion with the narrowest line of reasoning” that is “capable of supporting the Court’s judgment in that case.” Grutter v. Bollinger, 288 F.3d 732, 741 n.6 (6th Cir. 2002) (en banc), aff’d, 539 U.S. 306 (2003). “[T]he rationales supporting the Court’s judgment need not overlap on essential points in order to provide a holding that binds lower courts. Indeed, if the Justices agreed on essential points, the Marks analysis would be unnecessary.” Id. at 740. Instead, we are to look to the “results” that the rationales of the concurring opinions “will . . . produce” when applied in future cases. . . .

In a fractured decision where two opinions concur in the judgment, an opinion will be the narrowest under Marks if the instances in which it would reach the same result in future cases form “a logical subset” of the instances in which the other opinion would reach the same result. . . . This is so because in that subset of cases, a majority of the Court which issued the fractured decision would necessarily agree with the result. . . . In a fractured decision upholding the constitutionality of a law, that means the narrowest opinion is the one whose rationale would uphold the fewest laws going forward. . . .

Conversely, when a fractured decision strikes down a law as unconstitutional, the narrowest opinion is the one whose rationale would invalidate the fewest laws going forward. Memoirs v. Massachusetts, 383 U.S. 413 (1966), for instance, “revers[ed] the Massachusetts Supreme Court’s holding that a book depicting a prostitute’s life was suppressible obscenity.” Grutter, 288 F.3d at 739. “Justices Brennan and Fortas and the Chief Justice found the book was not suppressible obscenity because it was not ‘utterly without redeeming social value,’” whereas “Justices Black and Douglas did not reach the issue of whether the book was suppressible obscenity because they believed the First Amendment provides an absolute shield against government regulation of expression.” Id. (citations omitted). Anytime Justice Brennan’s opinion would conclude that a writing was not suppressible obscenity, Justices Black and Douglas would agree, but the reverse is not true. The Supreme Court thus held in Marks that Justice Brennan’s opinion controlled because it “provided the most limited First Amendment protection.” Id. at 739–40; see Marks, 430 U.S. at 194.

Turning now to June Medical Services, because the Court invalidated the Louisiana
statute at issue, the narrowest opinion concurring in the judgment is the one that would strike down the fewest laws regulating abortion in future cases. The Chief Justice read the rule laid down in the Court’s precedents to say that laws not “reasonably related” to a “legitimate purpose” or that impose a “substantial obstacle” are unconstitutional. . . . All other laws regulating abortion, however, “are valid.” . . . Like the Chief Justice, the plurality would invalidate any law with “the effect of placing a substantial obstacle in the path of a woman’s choice” to obtain a previability abortion. . . . But the plurality would also invalidate any law where “the balance” between the law’s benefits and its burdens “tipped against the statute’s constitutionality.” Presumably, this would include some laws that are reasonably related to a legitimate purpose and that do not impose a substantial obstacle, so long as the law’s burdens sufficiently outweighed its benefits.

Because all laws invalid under the Chief Justice’s rationale are invalid under the plurality’s, but not all laws invalid under the plurality’s rationale are invalid under the Chief Justice’s, the Chief Justice’s position is the narrowest under Marks. His concurrence therefore “constitutes [June Medical Services'] holding and provides the governing standard here.” Grutter, 288 F.3d at 741; see also Hopkins v. Jegley, 968 F.3d 912, 916 (8th Cir. 2020) (per curiam) (holding that “Chief Justice Roberts’s separate opinion in June Medical . . . is controlling”). “While ‘there is some awkwardness in attributing precedential value to an opinion of one Supreme Court justice to which no other justice adhered, it is the usual practice when that is the determinative opinion.’” Triplett Grille, 40 F.3d at 134  . . .

Under the Chief Justice’s controlling opinion, a law regulating abortion is valid if it satisfies two requirements. First, it must be “‘reasonably related’ to a legitimate state interest.” June Med. Servs., 140 S. Ct. at 2135 (Roberts, C.J., concurring in the judgment) (quoting Casey, 505 U.S. at 878 (joint opinion)). Because we are to apply “the ‘traditional rule’” of deference to the state’s “medical and scientific” judgments, id. at 2136 (quoting Gonzales, 550 U.S. at 163), this requirement is met whenever a state has “a rational basis to . . . use its regulatory power,” Gonzales, 550 U.S. at 158. Second, the law must not “ha[ve] the ‘effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.’” June Med. Servs., 140 S. Ct. at 2138 (Roberts, C.J., concurring in the judgment) (quoting Casey, 505 U.S. at 877 (joint opinion)). Under the law of our circuit, a woman faces a substantial obstacle when she is “deterred from procuring an abortion as surely as if the [government] has outlawed abortion in all cases.” Cincinnati Women’s Servs., Inc. v. Taft, 468 F.3d 361, 370 (6th Cir. 2006) (alteration in original) (quoting Casey, 505 U.S. at 894). Even if a law regulating abortion is unconstitutional in some applications, the law remains facially valid so long as it does not impose an undue burden “in a large fraction of the cases in which [the regulation] is relevant.” Casey, 505 U.S. at 895; accord Cincinnati Women’s Servs., 468 F.3d at 369. . .

The dissent faults us for treating “the entirety of Chief Justice Roberts’ concurring opinion” as authoritative and argues that we should instead look only to the reasoning that was “necessary to his vote to concur.” Dissenting Op. at 46–47. If this were the Marks rule, applying Marks would be pointless. The way we distinguish the “narrower” concurring opinion in a fractured decision from the “broader” one is by identifying differences in their reasoning. But because the narrower and broader opinions both concur in the judgment, the narrower opinion’s points of disagreement with the broader one—i.e. the very feature of the opinion that makes it “narrower”—are by definition not necessary to its ultimate conclusion that the judgment is correct. Thus, in any case where it matters which opinion has the narrower view, the dissent’s approach would have us set aside the narrower opinion’s points of disagreement as dictum, and the application of Marks would fail to provide a governing rule of law. Yet “[t]he principal objective of this Marks rule . . . requires that, whenever possible, there be a single legal standard for the lower courts to apply in similar cases.” Triplett Grille, 40 F.3d at 133 (citation omitted). It comes as no surprise, then, that binding precedent forecloses the dissent’s approach. . . .

Because the controlling opinion in June Medical Services clarified that the undue burden standard is not a balancing test, the district court erred in attempting to weigh the benefits of KRS § 216B.0435 and 902 KAR 20:360 § 10 against their burdens. In our review of the challenged provisions, we need only consider whether they are reasonably related to a legitimate state interest and whether they impose a substantial obstacle.

Whatever one thinks of the current state of abortion jurisprudence (or the Marks doctrine), it seems to me that Judge Larsen correctly applies Marks to June Medical Services. The U.S. Court of Appeals for the Eighth Circuit has adopted a similar interpretation of June Medical as well.

Given the composition of the Sixth Circuit, I doubt a petition for rehearing en banc will go anywhere. I also doubt they will seek certiorari, though time will tell.


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