Planned Parenthood of Indiana v. Kristina Box ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2428
PLANNED PARENTHOOD OF INDIANA
AND KENTUCKY, INC.,
Plaintiff-Appellee,
v.
KRISTINA BOX, Commissioner,
Indiana State Department of Health, et al.,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:17-cv-01636-SEB-DML — Sarah Evans Barker, Judge.
____________________
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
DECIDED MARCH 12, 2021
____________________
Before KANNE, ROVNER, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. This appeal returns to us on re-
mand from the Supreme Court of the United States. In 2019,
we affirmed the district court’s grant of a preliminary injunc-
tion against enforcement of a new Indiana statutory re-
striction on minors’ access to abortions. See Planned
2 No. 17-2428
Parenthood of Indiana & Kentucky, Inc. v. Adams, 258 F. Supp. 3d
929 (S.D. Ind. 2017), aff’d, 937 F.3d 973 (7th Cir. 2019), reh’g de-
nied, 949 F.3d 997 (7th Cir. 2019). The State defendants peti-
tioned for a writ of certiorari. The Supreme Court granted the
petition, vacated our decision, and remanded for further con-
sideration in light of June Medical Services LLC v. Russo, 140 S.
Ct. 2103 (2020), which struck down a Louisiana law regulat-
ing abortion providers, but without a single majority opinion.
We apply the predominant and most sound approach to
the “narrowest ground” rule in Marks v. United States, 430 U.S.
188 (1977), for assessing the precedential force of Supreme
Court decisions issued without a majority opinion. The opin-
ions in June Medical show that constitutional standards for
state regulations affecting a woman’s right to choose to termi-
nate a pregnancy are not stable, but they have not been
changed, at least not yet, in a way that would change the out-
come here.
The Chief Justice’s concurring opinion in June Medical of-
fered the narrowest basis for the judgment in that case, giving
stare decisis effect to Whole Woman’s Health v. Hellerstedt, 136
S. Ct. 2292 (2016), on the essentially identical facts in June Med-
ical. The Marks rule does not, however, turn everything the
concurrence said—including its stated reasons for disagree-
ing with portions of the plurality opinion—into binding prec-
edent that effectively overruled Whole Woman’s Health. That is
not how Marks works. It does not allow dicta in a non-major-
ity opinion to overrule an otherwise binding precedent. We
applied those binding standards from Whole Woman’s Health
in our earlier decision, and that decision has not been over-
ruled by a majority decision of the Supreme Court. We there-
fore again affirm the district court’s preliminary injunction
No. 17-2428 3
barring enforcement of the challenged law pending full re-
view in the district court.
I. Factual and Procedural Background
Given the lengthy opinions already issued in this case, we
summarize the issues leading up to this point. Indiana’s Sen-
ate Enrolled Act 404, enacted in 2017, included amendments
to Indiana’s judicial-bypass process. That process, required
by Bellotti v. Baird, 443 U.S. 622 (1979), creates a narrow legal
path for an unemancipated minor to obtain an abortion with-
out parental consent. The minor must first find her way to a
state trial court. She must then obtain a court order finding
either that the abortion would be in her best interests or that
she is sufficiently mature to make her own decision. Ind. Code
§ 16-34-2-4(e). Senate Enrolled Act 404 amended the process
in several ways, some of which the district court preliminarily
enjoined. Only one amendment is at issue in this appeal: a
new requirement that a minor’s parents be notified that she is
seeking an abortion through the bypass procedure—unless
the judge finds that such parental notice, as distinct from re-
quiring parental consent, is not in the minor’s best interests.
Ind. Code § 16-34-2-4(d). Maturity does not affect the new no-
tice requirement.
To support its motion for preliminary injunction, plaintiff
offered evidence on the likely effects of the new notice re-
quirement. The evidence took the form of affidavits from
seven witnesses familiar with the actual workings of the judi-
cial bypass process and the situations of and stresses upon
minors seeking abortions or advice on abortions. The State de-
fendants chose not to offer evidence at that stage of the case.
They also did not challenge the reliability or credibility of
plaintiff’s evidence.
4 No. 17-2428
The district court issued detailed findings of fact and con-
clusions of law finding that the new notice requirement was
likely to impose an undue burden on the right to obtain an
abortion for a significant fraction of minors for whom the re-
quirement would be relevant. 258 F. Supp. 3d 929, 939–40. We
affirmed, emphasizing the lopsided evidence showing both
the likely burden and the absence of appreciable benefit from
the new notice requirement. 937 F.3d at 989–90. We relied
heavily on Whole Woman’s Health, guided by its application of
the “undue burden” standard adopted in Planned Parenthood
of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). We
also relied on Whole Woman’s Health’s approval of a pre-en-
forcement injunction against challenged laws likely to impose
an undue burden. 937 F.3d at 979−80.
In Whole Woman’s Health, the Supreme Court affirmed a
district court decision striking down a so-called admitting
privileges requirement. The challenged Texas law required a
physician who performed an abortion to have admitting priv-
ileges at a hospital within thirty miles of the abortion site. The
Supreme Court based its decision on detailed factual findings
showing both the burdens imposed by that requirement and
the lack of accompanying benefits. 136 S. Ct. at 2310–14.
In June Medical in 2020, the Court held unconstitutional a
Louisiana admitting-privileges law that tracked nearly word-
for-word the Texas law struck down in Whole Woman’s Health.
A plurality of four Justices examined the detailed evidence
and findings on the likely burdens and benefits of the Louisi-
ana admitting privileges law, and, following the reasoning
and holding of Whole Woman’s Health, the plurality voted to
strike down the new law. 140 S. Ct. at 2122–32 (plurality opin-
ion of Breyer, J.). Four Justices dissented in four opinions.
No. 17-2428 5
Chief Justice Roberts also voted to strike down the Louisi-
ana law, concurring in the judgment in a separate opinion that
is the focus here on remand. He had dissented in Whole
Woman’s Health. He wrote that he still disagreed with that de-
cision, but he explained that principles of stare decisis called
for the Court to adhere to that earlier result on the essentially
identical facts. 140 S. Ct. at 2134, 2139 (Roberts, C.J., concur-
ring in judgment). He then explained that he believed Whole
Woman’s Health had erred by balancing the challenged law’s
benefits against its burdens in evaluating its constitutionality.
Id. at 2135–36. Both the plurality and the Chief Justice agreed,
however, that enforcement of the Louisiana law was properly
enjoined before it took effect.
Shortly after issuing June Medical, the Court issued its or-
der in this case granting the State defendants’ petition for a
writ of certiorari, vacating our decision, and remanding for
further consideration in light of June Medical. See Box v.
Planned Parenthood of Indiana & Kentucky, Inc., 141 S. Ct. 187,
188 (2020). Such a “GVR” order calls for further thought but
does not necessarily imply that the lower court’s previous re-
sult should be changed. Klikno v. United States, 928 F.3d 539,
544 (7th Cir. 2019). Pursuant to Circuit Rule 54, the parties
submitted their views on the remand.1
1 The State defendants at the same time petitioned for immediate en
banc consideration of this case. No member of this court has requested an
answer to or a vote on that petition. This decision on remand is being is-
sued by the panel that heard this appeal originally. The pending petition
is denied.
6 No. 17-2428
II. Marks v. United States and Narrow Opinions
A. Marks and its Variations
The remand poses questions about how to interpret and
apply decisions by the Supreme Court issued without major-
ity opinions. The Supreme Court’s leading guidance on the
question is one sentence in Marks: “When a fragmented court
decides a case and no single rationale explaining the result
enjoys the assent of five Justices, ‘the holding of the Court may
be viewed as that position taken by those Members who con-
curred in the judgments on the narrowest grounds.’” 430 U.S.
at 193, quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976)
(plurality opinion of Stewart, Powell, and Stevens, JJ.). In re-
cent decades, plurality decisions have become more frequent,
especially on some of the most controversial issues the federal
courts face. Lower courts have tried to follow the Marks in-
struction in a variety of scenarios, and scholars and lower
courts have identified several distinct models for applying
Marks.
A helpful guide comes from Professor Ryan Sullivan:
The first of these approaches interprets Marks as
limited to a narrow subset of plurality decisions
reflecting a clearly discernible “implicit consen-
sus” or “common denominator” among the Jus-
tices. The second approach understands Marks
as an instruction to lower courts to identify the
opinion in a plurality decision that reflects the
judgment-critical vote—typically the fifth con-
curring vote—and treat that opinion as the
Court’s holding. The third and final approach
looks for points of majority consensus among
No. 17-2428 7
different factions of concurring and dissenting
Justices on distinct legal issues raised by the
plurality decision.
Ryan Williams, Questioning Marks: Plurality Decisions and Prec-
edential Constraints, 69 Stan. L. Rev. 795, 806−07 (2017).
The parties’ positions here identify different approaches
and set the stage for our consideration. Relying on the first
model, which is predominant in precedent, plaintiff Planned
Parenthood contends that the June Medical plurality and con-
currence share the narrow, common ground that Whole
Woman’s Health has stare decisis effect on essentially identical
facts. Because that is all that they share, that is the holding of
June Medical, which thus did not produce a majority to over-
rule Whole Woman’s Health. Not having been overruled, the
standards and principles of Whole Woman’s Health still govern
here.
The State invokes both the second and third models for
applying Marks. Using the second model, the State says the
June Medical concurrence provided the swing vote and the
narrowest ground for the judgment—stare decisis for Whole
Woman’s Health on identical facts. That much is clear. The
State goes further, however, in asserting in effect that every
word of the concurrence must therefore be treated as the bind-
ing, precedential holding of June Medical, whether those addi-
tional portions support the judgment or not. Under that ap-
proach, we would give the concurrence the effect of overrul-
ing Whole Woman’s Health except as to virtually identical facts.
Invoking the third model, using all opinions to predict votes
in a future case, the State also argues that the June Medical con-
currence and the dissents agreed on enough common ground
to predict reliably that a majority of the Court would overrule
8 No. 17-2428
Whole Woman’s Health and strike down the Indiana statute
challenged here.
We first identify questions in applying Marks and then ad-
dress the variations argued by the parties, albeit in a different
order. We close by addressing a couple of additional argu-
ments raised in the briefs. The Supreme Court has observed
that the Marks rule is “more easily stated than applied” and
that it has “baffled and divided” lower courts. Grutter v. Bol-
linger, 539 U.S. 306, 325 (2003), quoting Nichols v. United States,
511 U.S. 738, 745−46 (1994). We hope here to avoid adding ev-
idence to support the “baffled” observation.
To identify a few of the problems baked into the Marks
rule, how do we measure narrow v. broad? Does Marks re-
quire common ground among opinions, and what if there is
none? What counts as a common ground? Is it simply the ex-
istence of a shared outcome or does it require a shared ap-
proach to resolving a given legal question? Is everything in
the narrowest opinion controlling, or just the portion support-
ing the judgment? Can a “narrow” non-majority opinion
overrule a previously controlling precedent? Do dissenting
opinions count at all in measuring precedential effect?
B. Dissenting Opinions and the Prediction Model of Precedent
The last question, about dissenting opinions, is the easiest
to answer, at least for a lower court like this one. The answer
resolves the State’s reliance on the third model, counting
votes among all opinions. Dissenting opinions do not count
in the Marks assessment. Marks itself wrote in terms of “those
Members who concurred in the judgments” 430 U.S. at 193,
No. 17-2428 9
quoting Gregg, 428 U.S. at 169 n.15. The weight of circuit and-
scholarly authority has taken the Court’s instruction at face
value.
We have rejected using dissents in Marks assessments:
“under Marks, the positions of those Justices who dissented
from the judgment are not counted in trying to discern a gov-
erning holding from divided opinions.” Gibson v. American
Cyanamid Co., 760 F.3d 600, 620 (7th Cir. 2014); accord, e.g.,
United States v. Heron, 564 F.3d 879, 884 (7th Cir. 2009) (stating
that Marks applies to opinions of those “Members who con-
curred in the judgment[]” of the Court); Manning v. Caldwell
for City of Roanoke, 930 F.3d 264, 280 n.13 (4th Cir. 2019) (en
banc) (same); United States v. Carrizales-Toledo, 454 F.3d 1142,
1151 (10th Cir. 2006) (same); United States v. Alcan Aluminum
Corp., 315 F.3d 179, 189 (2d Cir. 2003) (same); Rappa v. New
Castle County, 18 F.3d 1043, 1057 (3d Cir. 1994) (same); United
States v. Hughes, 849 F.3d 1008, 1012 (11th Cir. 2017), rev’d on
other grounds, 138 S. Ct. 1765 (2018) (”When determining
which opinion controls, we do not ‘consider the positions of
those who dissented.’”), quoting United States v. Robison, 505
F.3d 1208, 1221 (11th Cir. 2007); United States v. Epps, 707 F.3d
337, 348 (D.C. Cir. 2013) (“Stated differently, Marks applies
when, for example, ‘the concurrence posits a narrow test to
which the plurality must necessarily agree as a logical conse-
quence of its own, broader position.’”) (emphasis added and
removed), quoting King v. Palmer, 950 F.2d 771, 782 (D.C. Cir.
1991) (en banc); King, 950 F.2d at 783 (“[W]e do not think we
are free to combine a dissent with a concurrence to form a
Marks majority.”); cf. United States v. Davis, 825 F.3d 1014, 1025
(9th Cir. 2016) (en banc) (“[W]e assume but do not decide that
10 No. 17-2428
dissenting opinions may be considered in a Marks analysis.”);2
United States v. Johnson, 467 F.3d 56, 65 (1st Cir. 2006) (“[W]e
do not share the reservations of the D.C. Circuit about com-
bining a dissent with a concurrence to find the ground of de-
cision embraced by a majority of the Justices.”).
Scholars have generally agreed that dissenting opinions
do not actually count, while noting that courts are not entirely
consistent on this score. Michael L. Eber, When the Dissent Cre-
ates the Law: Cross-Cutting Majorities and the Prediction Model of
Precedent, 58 Emory L.J. 207, 218 (2008); Maxwell L. Stearns,
The Case for Including Marks v. United States in the Canon of Con-
stitutional Law, 17 Const. Comment. 321, 328 (2000); Nina
Varsava, The Role of Dissents in the Formation of Precedent, 14
Duke J. of Const. Law & Public Policy 285, 298−99 (2019); Jon-
athan H. Adler, Once More, with Feeling: Reaffirming the Limits
of Clean Water Act Jurisdiction, in The Supreme Court and the
Clean Water Act: Five Essays 81, 93−94 (L. Kinvin Wroth ed.,
Vt. Law Sch. 2007).3
2The Davis en banc majority did not decide this question, but concur-
ring and dissenting opinions disagreed on it. See 825 F.3d at 1029 (Chris-
ten, J., concurring) (Marks limits review to the opinions of Justices who
concurred in judgment); id. at 1031 (Bea, J., dissenting) (Marks permits
counting votes, including from dissenting Justices).
3To be sure, some of these scholars have urged a different approach,
arguing that lower courts should use a prediction model, taking dissenting
opinions into account to predict how the Supreme Court will decide the
next case, but they agree that the prediction model is rarely used by courts
and even more rarely acknowledged. See, e.g., Evan H. Caminker, Prece-
dent and Prediction: The Forward Looking Aspects of Inferior Court Deci-
sionmaking, 73 Tex. L. Rev. 1, 74 (1994) (arguing that “prediction has a
proper, albeit circumscribed, role to play in inferior court decisionmak-
ing,” but “conced[ing] that others will disagree with this conclusion”);
No. 17-2428 11
This aversion to dissenting opinions in applying Marks is
consistent with our more general approach to Supreme Court
precedent. We simply do not survey non-majority opinions to
count likely votes and boldly anticipate overruling of Su-
preme Court precedents. That is not our job. As we are fre-
quently reminded, only the Supreme Court itself can overrule
its own decisions. Rodriguez de Quijas v. Shearson/American Ex-
press, Inc., 490 U.S. 477, 484 (1989); accord, State Oil Co. v. Khan,
522 U.S. 3, 20 (1997) (“it is this Court’s prerogative alone to
overrule one of its precedents”); Agostini v. Felton, 521 U.S.
203, 237 (1997) (instructing courts of appeals to leave to the
Supreme Court “the prerogative of overruling its own deci-
sions”), citing Rodriguez de Quijas, 490 U.S. at 484; Scheiber v.
Dolby Laboratories, Inc., 293 F.3d 1014, 1019 (7th Cir. 2002)
(highlighting that in State Oil v. Khan, the Supreme Court
“pointedly noted” that the Seventh Circuit had been correct
in refusing to declare defunct the Court’s directly controlling
precedent). Accordingly, we decline the State’s invitation here
to add together the Chief Justice’s concurrence and the dis-
senting opinions and declare Whole Woman’s Health over-
ruled.4
Eber, When the Dissent Creates the Law, 58 Emory L. J. at 232 (acknowledg-
ing that “most judges do not endorse the prediction model of precedent,
at least openly”) (footnotes omitted); Varsava, The Role of Dissents, 14 Duke
J. of Const. Law & Public Policy at 321–22 (“Advocates of the predictive
approach generally exclude dissenting opinions from the process, but the
inclusion of dissents is a theoretical possibility.”) (footnotes omitted).
4 We recognize that parties may decide to adopt the prediction model
in making decisions about their conduct or in deciding how to litigate dis-
putes. The prediction model has a distinguished pedigree: “The prophe-
cies of what the courts will do in fact, and nothing more pretentious, are
what I mean by the law.” Oliver Wendell Holmes, The Path of the Law, 10
12 No. 17-2428
C. Logical Subsets and Nesting Dolls
We turn now to the first model of the Marks rule, argued
by plaintiff and consistent with the substantial weight of au-
thority: look for a “narrowest ground” that is a logical subset
of the reasoning in other opinions concurring in the judgment.
The Marks rule is easiest to apply when the fifth vote comes in
a concurrence that agrees with part of the plurality’s reason-
ing, so that the narrower opinion may be described as adopt-
ing a logical subset of a broader opinion’s reasoning. The of-
ten-cited metaphor is Russian nesting dolls. We and other
courts have often said that for the Marks rule to apply, there
must be a genuine common denominator underlying the rea-
soning of a majority of justices. E.g., Gibson, 760 F.3d at 619;
Heron, 564 F.3d at 884; Rappa, 18 F.3d at 1058; King, 950 F.2d at
781. That opinion—the narrowest one—“must represent a
common denominator of the Court’s reasoning; it must em-
body a position implicitly approved by at least five Justices
who support the judgment.” King, 950 F.2d at 781 (emphasis
added).
Under this approach, when the reasoning underlying the
decisive concurring opinion fails to fit within a broader logical
circle drawn by the other opinions, Marks simply does not ap-
ply. King, 950 F.2d at 782; accord, Alcan Aluminum Corp., 315
F.3d at 189 (explaining that where no single standard “consti-
tutes the narrowest ground for a decision on that issue, there
is then no law of the land”).
Harv. L. Rev. 457, 461 (1897). But in a hierarchical court system, lower
courts do not arrogate to themselves the task of overruling precedents of
higher courts.
No. 17-2428 13
In the simplest scenario, four Justices agree on two
grounds for the judgment, and the decisive vote is cast by a
concurring Justice who agrees with only one of those. In such
a case, the concurring opinion’s rationale provides the nar-
rowest ground and is deemed controlling.
If we were to depart from this predominant understand-
ing of Marks and applied it in the absence of a common de-
nominator, then a single approach to a given legal question
lacking majority support, perhaps lacking support from more
than one Justice, would become national law. See King, 950
F.2d at 782. This would be true even if that single approach
produced the critical fifth vote supporting the judgment of the
Court. Id.; see also Gaylor v. Mnuchin, 919 F.3d 420, 433 n.9 (7th
Cir. 2019) (stating that where one Justice’s concurring opinion
reached the same result as the plurality opinion, but did so
under a different constitutional clause, that concurring opin-
ion was not a “logical subset” of the plurality opinion), quot-
ing Gibson, 760 F.3d at 619; Heron, 564 F.3d at 884 (“When,
however, a concurrence that provides the fifth vote necessary
to reach a majority does not provide a ‘common denominator’
for the judgment, the Marks rule does not help to resolve the
ultimate question.”). If there is no common denominator, then
there is no binding reasoning, just facts and a result.
The Supreme Court itself appears to follow this approach.
In King, the District of Columbia Circuit illustrated this point
with Coolidge v. New Hampshire, 403 U.S. 443 (1971), where a
plurality of four Justices wrote that evidence could be seized
pursuant to the plain-view exception to the Fourth Amend-
ment’s warrant requirement only when the evidence was dis-
covered inadvertently. See King, 950 F.2d at 782. Four other
Justices wrote that inadvertence was not necessary for a valid
14 No. 17-2428
seizure of evidence in plain view. Coolidge, 403 U.S. at 492, 506,
510, 516 (four opinions, each concurring in part and dissent-
ing in part). Justice Harlan concurred in the judgment that the
challenged search was unconstitutional, but he offered no ra-
tionale for evaluating the inadvertence requirement laid out
by the plurality. Id. at 490 (Harlan, J., concurring in judgment).
In a later decision, Texas v. Brown, 460 U.S. 730 (1983), the
Supreme Court said that the Coolidge plurality’s inadvertence
requirement did not constitute binding precedent and should
be understood only as “the considered opinion of four Mem-
bers of this Court.” Brown, 460 U.S. at 737 (plurality opinion).
Eventually, the Supreme Court rejected the inadvertence re-
quirement altogether. King, 952 F.2d at 782, citing Horton v.
California, 496 U.S. 128 (1990).
In similar circumstances—where no opinion adopting a
narrowest common denominator of the Court’s reasoning can
be identified—this court and other circuits have explicitly de-
clined to apply Marks. See, e.g., Gibson, 760 F.3d at 619–20 (de-
clining to apply Marks to Eastern Enterprises v. Apfel, 524 U.S.
498 (1998)); Heron, 564 F.3d at 884 (declining to apply Marks
to Missouri v. Seibert, 542 U.S. 600 (2004)); Schindler v. Clerk of
Circuit Court, 715 F.2d 341, 345 (7th Cir. 1983) (declining to
apply Marks to Baldasar v. Illinois, 446 U.S. 222 (1980)); Davis,
825 F.3d at 1021–22 (declining to apply Marks to Freeman v.
United States, 564 U.S. 522 (2011));5 Alcan Aluminum Corp., 315
5
In Hughes v. United States, the Supreme Court explained that
in Freeman, “[n]o single interpretation or rationale commanded a
majority” of Justices. 138 S. Ct. 1765, 1768 (2018). The Court
acknowledged that some courts of appeals, including the Seventh
Circuit, in applying Marks had adopted the reasoning of Justice So-
tomayor’s solo opinion concurring in the judgment. Id. Other
No. 17-2428 15
F.3d at 189 (declining to apply Marks to Eastern Enterprises);
A.T. Massey Coal Co. v. Massanari, 305 F.3d 226, 237 (4th Cir.
2002) (also declining to apply Marks to Eastern Enterprises).
In other words, Marks does not command lower courts to
find a common denominator—to find an implicit consensus
among divergent approaches—where there is actually none.
Cf. Grutter, 539 U.S. at 325 (discussing division among federal
courts of appeals in applying Marks to Regents of the University
of California v. Bakke, 438 U.S. 265 (1978)); Nichols, 511 U.S. at
745 (discussing division among state and federal courts in ap-
plying Marks to Baldasar). It is not our duty or function to
bring symmetry to any “doctrinal disarray” we might en-
counter in our application of Supreme Court precedent.6
courts, however, also applying Marks, adopted the plurality’s rea-
soning. Id. Hughes resolved the sentencing issue in Freeman but ex-
plicitly declined “to reach questions regarding the proper applica-
tion of Marks.” Id.6 These limits of Marks are recognized in legal scholarship. See,
e.g., Richard Re, Beyond the Marks Rule, 132 Harv. L. Rev. 1943, 1982
(2019) (“[I]nstead of finding Marks holdings in all, or even most,
fractured Supreme Court decisions, the logical subset approach as-
pires to recognize Marks holdings only when one opinion is logi-
cally and therefore inescapably ‘narrower’ than any other.”); Lewis
A. Kornhauser & Lawrence G. Sager, The One and the Many: Adjudi-
cation in Collegial Courts, 81 Cal. L. Rev. 1, 46–48 (1993) (Marks is
available only “where the rationales for the majority outcome are
nested, fitting within each other like Russian dolls”); Stearns, The
Case for Including Marks, 17 Const. Comment. at 328 n.26 (explaining
that Marks does not apply where “[t]he majority on the Court’s
judgment [is] composed of two minority camps, each reaching op-
posite resolutions of the two dispositive issues, but also reaching
16 No. 17-2428
The logical subset approach to Marks applies here. In June
Medical, there is one critical sliver of common ground between
the plurality and the concurrence: Whole Woman’s Health was
entitled to stare decisis effect on essentially identical facts. 140
S. Ct. at 2120 (plurality); id. at 2139 (concurrence). The Marks
rule therefore applies to that common ground, but it applies
only to that common ground. That application offers no direct
guidance for applying the undue burden standard more gen-
erally, let alone to the quite different parental notice require-
ment in this case. That absence of guidance answers our ques-
tion: the Marks rule tells us that June Medical did not overrule
Whole Woman’s Health. That means Whole Woman’s Health re-
mains precedent binding on lower courts.
D. The Swing-Vote Model
To avoid this result, the State also invokes the second ap-
proach to Marks and plurality opinions, in which lower courts
try to identify the decisive fifth vote on the Supreme Court
and treat that vote’s reasoning as controlling, even if it repre-
sents the views of only one justice. Courts and scholars have
called this the “swing-vote” approach. The State argues here
that we should adopt the strongest, most controversial ver-
sion of this swing-vote approach, which “treats as binding all
aspects of the opinion reflecting the median Justice’s views,
the same judgment”); Joseph S. Cacace, Note, Plurality Decisions in
the Supreme Court of the United States: A Reexamination of the Marks
Doctrine after Rapanos v. United States, 41 Suffolk U. L. Rev. 97, 113
(2007) (emphasizing King’s “Russian dolls” approach to Marks);
Linda Novak, Note, The Precedential Value of Supreme Court Plurality
Decisions, 80 Colum. L. Rev. 756, 767 (1980) (“Many of the most
troublesome plurality [and concurring] opinions” do not “stand in
a ‘broader-narrower’ relation to each other.”).
No. 17-2428 17
including propositions that no other participating Justice ex-
plicitly or implicitly assented to.” Williams, Questioning
Marks, 69 Stan. L. Rev. at 815; see also Re, Beyond the Marks
Rule, 132 Harv. L. Rev. at 1979 (“In general, the median opin-
ion would be outvoted whenever at least five Justices in non-
median opinions would converge on the same outcome.”).
The State here argues that we should treat as binding every-
thing in the Chief Justice’s June Medical concurrence, including
its continued disagreement with Whole Woman’s Health,
whether that position was essential to the June Medical judg-
ment or not, giving that non-majority opinion the power to
overrule binding precedent established in a majority opinion.
This swing-vote model is not consistent with Supreme
Court precedent or our circuit precedent, nor is it the predom-
inant model in courts around the country. For example, in
United States v. Santos, 553 U.S. 507 (2008), the Supreme Court
split four-one-four on the decisive issue. Justice Scalia wrote
a plurality opinion for four justices to affirm; Justice Stevens
wrote a separate, narrower opinion concurring in that judg-
ment. But Justice Stevens’ concurring opinion expressed
views on future cases not before the Court. The plurality ad-
dressed how Marks should apply. Justice Stevens’ reasoning
was the narrowest in support of the judgment, but the plural-
ity flatly rejected the idea that everything in Justice Stevens’
opinion was binding, in terms directly applicable here:
“JUSTICE STEVENS’ speculations on that point address a
case that is not before him, are the purest of dicta, and form
no part of today’s holding.” Id. at 523 (plurality opinion of
Scalia, J.).
And whatever strengths the swing-vote model might have
in other situations, it is not an appropriate application of
18 No. 17-2428
Marks in these circumstances: First, the stated disagreement is
not essential to the concurrence’s bottom-line vote to strike
down the Louisiana law. The portions of the concurrence go-
ing beyond stare decisis did not support the judgment and are
obiter dicta. Second, the dispute between the plurality and
concurrence in June Medical was not about a new legal issue
but about the scope and validity of a Court precedent. Apply-
ing the swing-vote test to treat everything in the concurrence
as a binding holding would allow less than a majority to over-
rule a Court precedent that had been established by majority
vote.
To frame the issue in simple, logical terms, the June Medical
plurality adopted two propositions that we can label A and B.
Proposition A was that Whole Woman’s Health previously
struck down a nearly identical Texas law, so stare decisis re-
quired striking down the new Louisiana law. Proposition B
was that the majority opinion in Whole Woman’s Health cor-
rectly stated and applied the undue burden test for abortion
regulations. The Chief Justice’s concurrence adopted Proposi-
tion A, applying stare decisis. It rejected Proposition B, adopt-
ing instead Not-B: the majority opinion in Whole Woman’s
Health misstated and misapplied the undue burden test.
Applying Marks, the best way to understand the two opin-
ions together is that the plurality’s adoption of Proposition B
and the concurrence’s adoption of Proposition Not-B are both
obiter dicta. They were not necessary to the actual judgment
striking down the new Louisiana law on stare decisis
grounds, Proposition A, for which there were five votes.
There was no majority to overrule Whole Woman’s Health, so
that precedent stands as binding on lower courts unless and
until a Court majority overrules it.
No. 17-2428 19
E. Other Arguments
Additional arguments raised here do not fit as neatly into
the three principal models for applying Marks. The State ar-
gues that the Chief Justice’s concurrence in June Medical
should be deemed the narrowest opinion under Marks be-
cause it would leave more state laws undisturbed. In support
of this approach, the State cites United States v. Johnson, 467
F.3d 56, 63 (1st Cir. 2006), which recognized that an “alterna-
tive” reading of Marks might reasonably entail “that the ‘nar-
rowest grounds’ are simply understood as the ‘less far-reach-
ing-common ground.’” For two reasons, we are not per-
suaded.
First, this approach, too, assumes that the narrower and
broader opinions share some common ground in the first
place. As the First Circuit observed, “the ‘narrowest grounds’
approach makes the most sense when two opinions reach the
same result in a given case, but one opinion reaches that result
for less sweeping reasons than the other.” Id. In June Medical,
the plurality and concurring opinions arrived at the same re-
sult based on stare decisis. They disagreed on other points.
For the reasons explained above, their narrow common
ground is subject to Marks. But applying the Marks rule does
not mean that we treat as controlling and precedential por-
tions of the concurrence that were dicta, unnecessary to the
fifth vote to strike down the Louisiana law.
Second, comparing the respective ranges of statutes that
would survive the two different approaches, taking each ap-
proach in its entirety, rather than looking closely for shared
reasoning, would be highly disruptive, producing arbitrary
results and losing sight of the Court’s actual decision. See
Stearns, The Case for Including Marks, 17 Const. Comment. at
20 No. 17-2428
337–38 (the “narrowest grounds” rule does not stand for
proposition that opinion that would strike the fewest laws
controls). If the entirety of the Chief Justice’s concurrence were
given binding, precedential effect—on the theory that his rea-
soning would uphold more state laws than Justice Breyer’s
plurality would—then June Medical’s decision striking down
one Louisiana law would be deemed to have swept away
quite a bit of the Court’s jurisprudence on the right to choose
to terminate a pregnancy. That would be a remarkable result,
especially given the Court’s silence about such dramatic ef-
fects and the lack of a five-vote majority for that overruling.
More generally, the State’s novel and one-sided interpretation
of Marks would give one Justice the ability to write obiter dicta
that would sweep away constitutional precedents protecting
individual rights by adopting broad reasoning that would
confine the individual right most narrowly, yet without a ma-
jority having actually voted to overrule an earlier precedential
opinion.
The State also argues that the Supreme Court itself ap-
pears to view all aspects of the Chief Justice’s concurrence as
controlling, so we should do the same. We do not see evidence
that the Court views the entire concurrence as controlling. In
fact, Chief Justice Roberts did not view the dicta in his con-
currence as binding: “The question today however is not
whether Whole Woman’s Health was right or wrong, but
whether to adhere to it in deciding the present case.” 140 S.
Ct. at 2133. See also id. at 2181 (Gorsuch, J., dissenting) (“Whole
Woman’s Health insisted that the substantial obstacle test ‘re-
quires that courts consider the burdens a law imposes on abor-
tion access together with the benefits the law confers.’”)
(cleaned up), quoting Whole Woman’s Health, 136 S. Ct. at 2309.
No. 17-2428 21
Consistent with its view of the June Medical concurrence,
the State also argues that we should abandon any considera-
tion of actual benefits of the challenged Indiana notice re-
quirement. Apart from the difficulty in applying Marks here,
we do not see how having courts close their eyes to genuine
and legitimate benefits of an abortion regulation makes it less
likely to survive judicial review. The “undue burden” stand-
ard adopted in Casey logically implies the existence of a cate-
gory of “due” burdens. Some regulations might restrict access
and/or raise costs, but do so in service of legitimate goals and
are on balance justified.
For example, state laws require that only persons with cer-
tain medical licenses may perform surgical or medical abor-
tions. Those regulations may restrict access and raise costs.
Given the health benefits, there is generally no serious doubt
about the constitutionality of such burdens. In Casey itself, the
Court found that new informed-consent requirements, a wait-
ing period, and some record-keeping requirements would im-
pose genuine burdens but would also serve legitimate pur-
poses. Those burdens were not deemed “undue.” See 505 U.S.
at 885–87 (mandatory 24-hour waiting period), 900–01
(recordkeeping and reporting requirement); see also Whole
Woman’s Health, 136 S. Ct. at 2309, 2311–12 (Casey requires
consideration of both burdens and benefits). In this case, it
may be that the evidence in a trial on the merits will show a
different balance of benefits and burdens. At the preliminary
injunction stage, however, the State chose not to offer evi-
dence of benefits that might justify the burdens here. The lop-
sided evidence of substantial burdens and little or no benefits
22 No. 17-2428
convinced the district judge to issue the preliminary injunc-
tion and convinced us to affirm that decision.7
We recognize that the scope of June Medical and the effect
of the concurrence has been controversial. The Eighth Circuit
and a divided panel of the Sixth Circuit have treated the con-
currence as controlling. See Hopkins v. Jegley, 968 F.3d 912, 915
(8th Cir. 2020) (per curiam) (combining concurrence and dis-
senting opinions); EMW Women’s Surgical Center P.S.C. v.
Friedlander, 978 F.3d 418, 437 (6th Cir. 2020); Little Rock Family
Planning Services v. Rutledge, 984 F.3d 682, 687 n.2 (8th Cir.
2021). Those decisions are not consistent with this circuit’s ap-
proach to Marks. A divided panel of the Fifth Circuit reached
7 We share considerable common ground with our dissenting col-
league as we all do our level best to apply the Marks rule to June Medical
in this challenging and fluid area of constitutional law. On the points that
divide us at this stage of the case, we offer three observations. First, the
dissenting opinion appears to be logically inconsistent, recognizing that
June Medical did not overrule Whole Woman’s Health, post at 35, yet seem-
ing to give precedential effect to portions of the Chief Justice’s concurrence
that disagreed with the June Medical plurality’s adherence to Whole
Woman’s Health. Post at 31−32. Second, on the record before us, the debate
over the role of balancing benefits and burdens of restrictions on abortion
simply should not matter in the end. The district court found that the new
parental notice requirements would impose a substantial obstacle for the
relevant group of pregnant minors, and, at least in the absence of counter-
vailing benefits, that meant the burdens would be undue. 258 F. Supp. 3d
at 939-40. On appeal, with the State still declining to offer evidence of gen-
uine benefits, we agreed. 937 F.3d at 978, 981. Unless and until the State
tries to offer evidence of benefits, the theoretical debate about the role of
balancing should not affect our decision to affirm the preliminary injunc-
tion here. Finally, we must note once more that the June Medical plurality
and concurrence agreed that the new Louisiana law was properly enjoined
before it could take effect. 140 S. Ct. at 2114 (plurality) & 2142 (concur-
rence).
No. 17-2428 23
the same conclusion about June Medical that we do in Whole
Woman’s Health v. Paxton, 972 F.3d 649, 653 (5th Cir. 2020). At
later stages of the same appeal, the panel adhered to that
view, 978 F.3d 896, 904 (5th Cir. 2020), and that later opinion
was vacated and rehearing en banc was granted, 978 F.3d 974(5th Cir. 2020). Because a majority of Justices of the Supreme
Court has not held otherwise, the balancing test set forth in
Whole Woman’s Health remains binding precedent. That is the
precedent we followed in our original decision, and we con-
tinue to follow it now, using the approach to Marks we have
followed before.
We need not repeat more from our original decision. The
split decision in June Medical did not overrule the precedential
effect of Whole Woman’s Health and Casey. As in our original
opinion, we have not decided the plaintiff’s alternative
ground for affirmance, adopted by the district court, that the
requirements of Bellotti v. Baird apply to parental notice re-
quirements as well as to parental consent requirements. 937
F.3d at 989–90; see also 258 F. Supp. 3d at 945–46. For the rea-
sons explained above and in our original opinion, the district
court’s preliminary injunction barring enforcement of the
new parental notice requirement in Ind. Code § 16-34-2-4(d)
and (e) is AFFIRMED.
24 No. 17-2428
KANNE, Circuit Judge, dissenting. Here we are again, faced
with the seemingly endless task of determining whether a law
unduly burdens a woman’s ability to obtain an abortion.
When this case first came to us, the majority of this panel re-
lied heavily on Whole Woman’s Health v. Hellerstedt, 136 S. Ct.
2292 (2016), to affirm the district court’s pre-enforcement in-
junction against Indiana’s brand-new parental-notification
law because Indiana “offered no evidence to support [the
law’s] proposed benefits,” Planned Parenthood of Ind. & Ky., Inc.
v. Adams, 937 F.3d 973, 984 (7th Cir. 2019).
In the dissent to the initial opinion, I pointed out that
(1) the Supreme Court had held several times that such paren-
tal-notification laws are constitutional; (2) Planned
Parenthood’s evidence did not show that Indiana’s parental-
notification law places an undue burden on a minor’s ability
to obtain an abortion; and (3) we should not be in the business
of quashing state abortion regulations before they go into
force and while their effects, and the reasons for those effects,
“are open to debate,” A Woman’s Choice-E. Side Women’s Clinic
v. Newman, 305 F.3d 684, 693 (7th Cir. 2012).
Thereafter, our full court narrowly denied en banc review,
with some colleagues expressing hope that doing so would
“send this dispute on its way to the only institution” that can
say whether Indiana’s parental-notification law imposes an
undue burden. Planned Parenthood of Ind. & Ky., Inc. v. Box, 949
F.3d 997, 999 (7th Cir. 2019) (Easterbrook, J., concurring in de-
nial of rehearing en banc). The Supreme Court then granted
certiorari—but instead of fulfilling those hopes, it vacated the
panel’s decision and remanded it “for further consideration
in light of” June Medical Services LLC v. Russo, 140 S. Ct. 2103(2020), a fractured case that produced six different opinions.
No. 17-2428 25
Box v. Planned Parenthood of Ind. & Ky., Inc., 141 S. Ct. 187, 188
(2020).
So now, with our previous decision in one hand and a half-
dozen June Medical opinions in the other, we must figure out
how the latter affect the former.
The majority says, in essence, that June Medical has no ef-
fect—that the plurality opinion, along with the Chief Justice’s
concurrence, simply followed Whole Woman’s Health, and
therefore our original opinion applying its balancing test
must have been correct in all respects.
I disagree. The majority gives an expanded reading to the
Chief Justice’s June Medical concurrence, but viewing that nar-
row concurring opinion—as written, in conjunction with the
plurality’s opinion—compels a different outcome.
The plurality in June Medical held that the Louisiana law at
issue was unconstitutional because it “poses a ‘substantial ob-
stacle’ to women seeking an abortion [and] offers no signifi-
cant health-related benefits.” June Medical, 140 S. Ct. at 2132
(plurality opinion). The Chief Justice’s concurrence, however,
simply held only that the Louisiana law was unconstitutional
because, under Whole Woman’s Health, it “imposed a substan-
tial obstacle.” Id. at 2139 (Roberts, C.J., concurring).
Thus, the finding of a “substantial obstacle” is the com-
mon denominator between the opinions—and we should cor-
rect our previous decision by abandoning the added weigh-
ing of benefits that Chief Justice Roberts explicitly rejected.
Further, while we cannot presume from the Supreme
Court’s remand order that our prior decision in this case was
wrong, surely June Medical had some effect on the legal land-
scape. Else, why didn’t the Supreme Court simply deny cert
26 No. 17-2428
instead?1 I do not believe that the Supreme Court is directing
us to reassess our prior decision “in light of” a case that sheds
no light on the matter whatsoever.
Rather, I do believe that June Medical does have a real ef-
fect. The Supreme Court knows it, other circuits accept it, and
a faithful application of the Marks rule requires us to accept it,
too.
***
This analysis begins with what I think the majority has
right, which is quite a bit.
To start, the majority of course identifies the correct basic
rule from Marks: “When a fragmented court decides a case
and no single rationale explaining the result enjoys the assent
of five Justices, ‘the holding of the Court may be viewed as
that position taken by those Members who concurred in the
judgments on the narrowest grounds.’” Marks v. United States,
430 U.S. 188, 193 (1977) (quoting Gregg v. Georgia, 428 U.S. 153,
169 n.15 (1976) (plurality opinion of Stewart, Powell, and Ste-
vens, JJ.)).
Second, the majority correctly warns that “the Marks rule
is ‘more easily stated than applied’ and that it has ‘baffled and
1 Indeed, this is just one of two cases that the Supreme Court sent back
for us to reconsider after June Medical. “Sending these cases back …, in-
stead of simply denying review, suggests the High Court rejected a bal-
ancing test and expects the Seventh Circuit to apply the more lenient un-
due-burden framework outlined in the Chief Justice’s concurrence.” Whole
Woman's Health v. Paxton, 978 F.3d 896, 920 (5th Cir.), reh’g en banc granted,
opinion vacated, 978 F.3d 974 (5th Cir. 2020) (Willett, J., dissenting).
No. 17-2428 27
divided’ lower courts.” Majority Op. at 8 (quoting Grutter v.
Bollinger, 539 U.S. 306, 325 (2003)). That’s beyond dispute.
Third, the majority fairly summarizes our cases interpret-
ing the Marks rule. For example, “under Marks, the positions
of those Justices who dissented from the judgment are not
counted in trying to discern a governing holding from di-
vided opinions,” Gibson v. Am. Cyanamid Co., 760 F.3d 600, 620
(7th Cir. 2014), so we cannot stitch together dissenting and
concurring opinions to declare that a new rule of law has been
handed down.
And though this next point is not as clear from our case
law,2 I also agree with the majority that we don’t generally
adopt every word of a “swing vote’s” lone concurrence as the
binding opinion of the Court; rather, we take only the part of
that opinion that serves as “a logical subset of other, broader
opinions,” id. at 619 (quoting King v. Palmer, 950 F.2d 771, 781
(D.C. Cir. 1991) (en banc)), or the “‘common denominator’ for
the judgment,” United States v. Heron, 564 F.3d 879, 884 (7th
Cir. 2009).
2 For example, two members of this panel, myself included, have ap-
plied Marks without emphasizing that we follow only the part of the con-
currence that forms a logical subset of the plurality’s reasoning, not nec-
essarily everything the concurrence said. See United States v. Dixon, 687
F.3d 356, 359 (7th Cir. 2012) (Hamilton, J.) (“Marks is easy to apply here.
Even though eight Justices disagreed with Justice Sotomayor’s approach
and believed it would produce arbitrary and unworkable results, her rea-
soning provided the narrowest, most case-specific basis for deciding [the
case]. Her approach therefore states the controlling law.” (citations omit-
ted)); Schultz v. City of Cumberland, 228 F.3d 831, 842 n.2 (7th Cir. 2000)
(Kanne, J.) (“A divided Court issued four separate opinions …, but under
Marks …, Justice Souter’s concurrence is the controlling opinion on this
issue, as the most narrow opinion joining the judgment of the Court.”).
28 No. 17-2428
Where I part ways with the majority is at the next and ad-
mittedly more difficult question: What part of Chief Justice
Roberts’s concurrence in June Medical is a “logical subset” of
the plurality opinion or serves as the “common denominator”
to support the judgment?
The majority concludes that in June Medical, the “critical
sliver of common ground between the plurality and the con-
currence” is that “Whole Woman’s Health was entitled to stare
decisis effect on essentially identical facts.” Majority Op. at 16.
But that conclusion ignores the substance of Chief Justice Rob-
erts’s position. In fact, the majority disregards the Chief Jus-
tice’s words entirely, save for one quote in the final pages. If
the Marks rule demands one thing, it’s that we (to paraphrase
Justice Frankfurter) read the opinions, read the opinions, read
the opinions, to discern a common denominator of the Court’s
reasoning. Henry J. Friendly, Benchmarks 202 (1967). And
once we read the opinions, it becomes clear that the Chief Jus-
tice concurred on a much narrower and more specific ground
than the majority determines.
The Chief Justice began his concurrence by reiterating his
continued belief that Whole Woman’s Health “was wrongly de-
cided.” June Medical, 140 S. Ct. at 2133 (Roberts, C.J., concur-
ring). “The question” in June Medical, however, was “not
whether Whole Woman’s Health was right or wrong, but
whether to adhere to it in deciding the present case.” Id.
That led to a discussion of stare decisis principles. Among
other things, Chief Justice Roberts stressed that “[s]tare decisis
principles … determine how we handle a decision that itself
departed from the cases that came before it. In those instances,
‘[r]emaining true to an “intrinsically sounder” doctrine estab-
lished in prior cases better serves the values of stare decisis
No. 17-2428 29
than would following’ the recent departure.” Id. at 2134 (quot-
ing Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 231 (1995)
(plurality opinion)).
Chief Justice Roberts then turned to Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), which
established the undue burden standard that both parties
agreed “provide[d] the appropriate framework to analyze
Louisiana’s law.” June Medical, 140 S. Ct. at 2135 (Roberts, C.J.,
concurring). As the Chief Justice put it: “Under Casey, … ‘[a]
finding of an undue burden is a shorthand for the conclusion
that a state regulation has the purpose or effect of placing a
substantial obstacle in the path of a woman seeking an abor-
tion of a nonviable fetus.’ Laws that do not pose a substantial
obstacle to abortion access are permissible, so long as they are
‘reasonably related’ to a legitimate state interest.” Id. (citation
omitted) (quoting Casey, 505 U.S. at 877, 878).
Then, the Chief Justice observed that in Whole Woman’s
Health, the Court “faithfully recit[ed] this standard” from Ca-
sey but “added the following observation: ‘The rule an-
nounced in Casey ... requires that courts consider the burdens
a law imposes on abortion access together with the benefits
those laws confer.’” Id. (quoting Whole Woman’s Health, 136 S.
Ct. at 2309). That suggestion was repeated by the June Medical
plurality. Id. And “[r]ead in isolation from Casey,” that sug-
gestion “could invite a grand ‘balancing test in which un-
weighted factors mysteriously are weighed.’ Under such
tests, ‘equality of treatment is ... impossible to achieve; pre-
dictability is destroyed; judicial arbitrariness is facilitated; ju-
dicial courage is impaired.’” Id. at 2135–36 (citations omitted)
(first quoting Marrs v. Motorola, Inc., 577 F.3d 783, 788 (7th Cir.
30 No. 17-2428
2009); and then quoting Antonin Scalia, The Rule of Law as a
Law of Rules, 56 U. Chi. L. Rev. 1175, 1182 (1989)).
But according to Chief Justice Roberts, “[n]othing about
Casey suggested that a weighing of costs and benefits of an
abortion regulation was a job for the courts.” Id. at 2136. “Ca-
sey instead focuses on the existence of a substantial obsta-
cle … .” Id. So, because “[w]e should respect the statement in
Whole Woman’s Health that it was applying the undue burden
standard of Casey,” id. at 2138, “Casey’s requirement of finding
a substantial obstacle before invalidating an abortion regula-
tion [was] a sufficient basis for the decision … in Whole
Woman’s Health” and thus too for the decision in June Medical,
id. at 2139. “In neither case, nor in Casey itself, was there call
for consideration of a regulation’s benefits, and nothing in Ca-
sey commands such consideration.” Id.
Finally, the Chief Justice came to his ultimate conclusion:
Under principles of stare decisis, I agree with the plu-
rality that the determination in Whole Woman’s
Health that Texas’s law imposed a substantial obsta-
cle requires the same determination about Louisi-
ana’s law. Under those same principles, I would ad-
here to the holding of Casey, requiring a substantial
obstacle before striking down an abortion regula-
tion.
Id.
And that is the critical sliver of common ground between
the plurality and the concurrence: Casey’s requirement of “a
substantial obstacle before striking down an abortion regula-
tion,” and the Court’s prior determination that “Texas’s law
imposed a substantial obstacle,” compelled “the same deter-
mination about Louisiana’s law.” Id.
No. 17-2428 31
Therefore, the majority’s formulation of the common
ground (“Whole Woman’s Health was entitled to stare decisis ef-
fect on essentially identical facts”), while true in some opaque
sense, is imprecise.
Nowhere does the Chief Justice suggest that Whole
Woman’s Health’s formulation of a balancing test is entitled to
stare decisis effect—only its requirement of a substantial obsta-
cle is. In fact, he quite clearly warns us of a sinister “grand
‘balancing test’” that departs from Casey, id. at 2135 (quoting
Marrs, 577 F.3d at 788), and reminds us that when a decision
“depart[s] from the cases that came before it, … ‘[r]emaining
true to an “intrinsically sounder” doctrine established in prior
cases better serves the values of stare decisis than would fol-
lowing’ the recent departure,” id. at 2134 (quoting Adarand
Constructors, 515 U.S. at 231).
Translation: Where Whole Woman’s Health paid lip service
to Casey but then strayed from it by weighing benefits, it is
better to remain true to Casey’s established substantial-obsta-
cle analysis than to follow the errant departure from it. So
courts should continue to apply the substantial-obstacle test
from Casey.
The majority objects to reading this much into Chief Jus-
tice Roberts’s opinion because “[t]he portions of the concur-
rence going beyond stare decisis did not support the judgment
and are obiter dicta.” Majority Op. at 18. But “[a] dictum is a
statement in a judicial opinion that could have been deleted
without seriously impairing the analytical foundations of the
holding.” Sarnoff v. Am. Home Prods. Corp., 798 F.2d 1075, 1084
(7th Cir. 1986), abrogated on other grounds by Hart v. Schering–
Plough Corp., 253 F.3d 272 (7th Cir. 2001). The Chief Justice’s
discussion of Whole Woman’s Health and its flawed balancing
32 No. 17-2428
test plainly formed the “analytical foundation” for his conclu-
sion that only Whole Woman’s Health’s finding of a substantial
obstacle was to be given stare decisis effect.
At any rate, the Chief Justice’s stare decisis discussion alone
supports that conclusion. And even if everything but the Chief
Justice’s bottom-line conclusion were disregarded as dicta,
still we are left with the same unavoidable outcome: “Under
principles of stare decisis, I agree with the plurality that the de-
termination in Whole Woman’s Health that Texas’s law imposed
a substantial obstacle requires the same determination about
Louisiana’s law,” and “I would [also] adhere to the holding
of Casey, requiring a substantial obstacle before striking down
an abortion regulation.” June Medical, 140 S. Ct. at 2139 (Rob-
erts, C.J., concurring) (emphases added).
The majority’s abridged version of this bottom line—
“Whole Woman’s Health was entitled to stare decisis effect on
essentially identical facts”—seems a simply abstract state-
ment of law, not the Chief Justice’s ultimate conclusion sup-
porting the judgment.
The majority also objects that following the Chief Justice’s
approach would “overrule” Whole Woman’s Health. However,
the majority also acknowledges that “[t]he question” in June
Medical was “not whether Whole Woman’s Health was right or
wrong, but whether to adhere to it in deciding the present
case.” Id. at 2133. So if the Chief Justice did not overrule Whole
Woman’s Health by “respect[ing]” its statement that it was fol-
lowing Casey, id. at 2138, refusing to read it “in isolation from
Casey,” id. at 2135, and giving stare decisis effect to only the
substantial-obstacle finding necessary to its judgment, id. at
2138, it is difficult to see how we would overrule Whole
Woman’s Health by doing the same.
No. 17-2428 33
My position also is not groundbreaking. The two other cir-
cuits that have conclusively resolved this issue came to the
same outcome. Hopkins v. Jegley, 968 F.3d 912, 915 (8th Cir.
2020) (per curiam); EMW Women’s Surgical Ctr. P.S.C. v. Fried-
lander, 978 F.3d 418, 437 (6th Cir. 2020); Little Rock Family Plan-
ning Servs. v. Rutledge, 984 F.3d 682, 687 n.2 (8th Cir. 2021).
The majority disregards these cases as “not consistent with
this circuit’s approach to Marks.” Majority Op. at 22. There are
some differences in our approaches, to be sure. The Eighth
Circuit, for example, declared that Chief Justice Roberts’s
“separate opinion is controlling” because he was the swing
vote. Hopkins, 968 F.3d at 915. That’s a bit oversimplistic for
our precedent requiring us to adopt only that portion of the
concurring opinion that forms a “logical subset” of the plural-
ity’s reasoning. And the Sixth Circuit concluded that the Chief
Justice’s concurrence provides the governing standard
“[b]ecause all laws invalid under the Chief Justice’s rationale
are invalid under the plurality’s, but not all laws invalid un-
der the plurality’s rationale are invalid under the Chief Jus-
tice’s.” Friedlander, 978 F.3d at 433. We have not adopted that
sort of reasoning.
But even if we cannot rely on their approaches under
Marks, that those courts reached the same conclusion while
applying different standards even between themselves is
stronger evidence that their outcome is correct than that it is
wrong. And in my view, our own standards governing the
application of the Marks rule force the same result reached by
those circuits. That really should come as no surprise given
that, at bottom, each circuit is trying its level best to apply the
same guidance from Marks to the same set of opinions in June
Medical, varying circuit precedents notwithstanding.
34 No. 17-2428
There is also a speck of precedent from the Fifth Circuit
that the majority suggests lends it support. That’s a generous
suggestion. The Fifth Circuit first addressed this issue when
it considered Texas’s motion to stay an injunction against the
enforcement of its statute requiring women to undergo cer-
tain medical procedures before receiving “dilation and evac-
uation” abortions. Whole Woman’s Health v. Paxton, 972 F.3d
649 (5th Cir. 2020). The panel majority denied the motion as
“procedurally improper,” id. at 652, but apart from that, it also
devoted a few words to rejecting Judge Willett’s dissenting
view that the district court’s injunction rested upon an invalid
balancing test, id. at 654 (Willett, J., dissenting). The majority
concluded that Whole Woman’s Health’s “formulation of the
[balancing] test continues to govern this case.” Id. at 653 (ma-
jority opinion).
Two months later, the same panel again addressed the
Marks issue and held to its prior conclusion over a lengthy
dissent from Judge Willett. Whole Woman’s Health v. Paxton,
978 F.3d 896 (5th Cir. 2020). But en banc review has since been
granted, and the panel’s second decision has been vacated.
Whole Woman’s Health v. Paxton, 978 F.3d 974, 975 (5th Cir.
2020). Its earlier discussion, while technically still on the
books, is clearly in limbo, too.
What’s more, even if the Fifth Circuit panel agreed with
the majority’s outcome, its analysis conflicts with the major-
ity’s approach here. The majority here says that “[t]he logical
subset approach to Marks applies” and that there is a “sliver
of common ground between the plurality and the concur-
rence.” Majority Op. at 16. But the Fifth Circuit panel held that
Chief Justice Roberts’s “concurrence cannot ‘be viewed as a
logical subset of the’ plurality’s opinion” or “logically
No. 17-2428 35
compatible” with it. Paxton, 978 F.3d at 904 (quoting United
States v. Duron-Caldera, 737 F.3d 988, 994 n.4 (5th Cir. 2013)).
Which is to say, no other court has adopted the majority’s
reasoning. The majority has scant support from our sister cir-
cuits, and it might soon have none.
***
To summarize, June Medical is not nugatory, but neither
does it overrule Whole Woman’s Health. It simply demands that
courts continue to apply Casey’s substantial-obstacle test,
which survives both Whole Woman’s Health and June Medical
by operation of the Marks rule. The majority in this case erred,
therefore, by weighing the benefits conferred by Indiana’s law
against its burdens. This is just the sort of “grand balancing
test” that the Chief Justice disclaimed, and it goes far beyond
the narrowest common ground supporting the judgment in
June Medical. It thus has no place in our analysis, and the ma-
jority should have corrected its error on remand by returning
to the settled substantial-obstacle test from Casey.
The majority’s error is even more disconcerting consider-
ing the procedural posture and “limited factual record” in this
case. Adams, 937 F.3d at 988. The record is limited, of course,
because the court enjoined enforcement of the law before it
went into effect. The obvious question is, how is a state ever
supposed to overcome the majority’s “grand balancing test”
when a court can stamp out its abortion regulations before
they even get off the ground? Are we to expect the state to
reach into some alternate reality, where its popularly enacted
laws were let alone, and pluck evidence of their benefits from
there? See id. at 997 (Kanne, J., dissenting) (“Generalized in-
formation about abortion regulation writ large cannot
36 No. 17-2428
substitute for specific, tailored data regarding the statute at
issue.”). If “weighing [the] costs and benefits of an abortion
regulation” has really become “a job for the courts,” June Med-
ical, 140 S. Ct. at 2136 (Roberts, C.J., concurring), then surely
it must be “an abuse of discretion for a district judge to issue
a pre-enforcement injunction while the effects of the law (and
reasons for those effects) are open to debate,” A Woman’s
Choice, 305 F.3d at 693.
The other reasons for my prior dissent remain unchanged.
The Supreme Court has confirmed that parental-notification
requirements are constitutional time and again. And Planned
Parenthood has failed to show that requiring mature minors
to notify their parents that they intend to have an abortion
(where a judge has found that avoiding notification is not in
their best interests) constitutes an undue burden under Casey.
This court should reverse the district court’s injunction and
let Indiana exercise its legislative judgment that a parental-
notification law best serves the interests of its citizens.
I respectfully dissent.