Wednesday, March 17, 2021
The Seventh Circuit ruled last week that Indiana's amended judicial bypass procedure violated the right to an abortion for minors. The court earlier ruled on the case (and struck the same amended bypass procedure), but the Supreme Court vacated that judgment and remanded the case in light of the Court's ruling last summer in June Medical. Last week, the Seventh Circuit came to the same result.
The case, Planned Parenthood v. Box, challenged Indiana's judicial bypass procedure. As amended, that procedure required a court to notify a minor's parents when the minor sought an abortion through judicial bypass of the state's parental-consent requirement, unless the judge finds that parental notification is not in the minor's best interest.
The district court originally ruled that the procedure created an undue burden on a minor's right to an abortion. The Seventh Circuit affirmed. The appeals court applied the balancing test from Whole Women's Health, the 2016 Supreme Court case that struck Texas's admitting-privileges requirement. (Under the requirement, abortion doctors had to have admitting privileges at a hospital within 30 miles of the place where they performed abortions.) The Court in Whole Women's Health assessed whether the admitting-privileges requirement created an undue burden by balancing the burdens of the requirement on a woman's right to an abortion against the putative benefits of the requirement. It held that the requirement created substantial burdens, but no benefits. The Seventh Circuit similarly ruled that Indiana's judicial bypass procedure created substantial burdens, but no benefits. (The plaintiffs demonstrated that the procedure would create burdens on access, while the state failed to produce any evidence of benefits of the law.)
Then, last summer, the Supreme Court ruled in June Medical that Louisiana's admitting-privilege requirement (the same as Texas's requirement, struck in Whole Women's Health) also created an undue burden on a woman's right to an abortion. But the Court in June Medical split differently than in Whole Women's Health, because Justice Kavanaugh had replaced Justice Kennedy. (Justice Kennedy sided with the majority in Whole Women's Health, but Justice Kavanaugh sided with the dissent in June Medical.) In particular, Justice Breyer wrote for a four-justice plurality (including Justices Ginsburg, Sotomayor, and Kagan) that Louisiana's law was unconstitutional for two reasons: stare decisis (because Louisiana's law was the same as Texas's law, struck in Whole Women's Health); and because the burdens of Louisiana's law outweighed the benefits, thus creating an undue burden under the Whole Women's Health balancing approach. Chief Justice Roberts concurred in the judgment based on stare decisis alone. But he also disagreed with the balancing approach. Justices Thomas, Alito, Gorsuch, and Kavanaugh wrote their own separate dissents.
The Court vacated the earlier Seventh Circuit ruling and remanded it for considering in light of June Medical. So the Seventh Circuit had to figure out whether June Medical changed the balancing test from Whole Women's Health that the Seventh Circuit had previously relied upon to strike Indiana's bypass procedure.
The Seventh Circuit last week ruled that June Medical did not change the balancing test. Under the Marks rule (which sorts out which opinion states the holding of the Court when, as in June Medical, there's no majority opinion), the court looked to Chief Justice Roberts's concurrence in June Medical as the "position taken by those Members who concurred in the judgment on the narrowest grounds." The Seventh Circuit held that Chief Justice Roberts's stare decisis rationale aligned with Justice Breyer's stare decisis rationale as the holding of the Court, and that the Court didn't otherwise alter or overrule the balancing approach in Whole Women's Health. (The court rejected the state's argument that Chief Justice Roberts's second rationale (that the balancing approach was wrong) aligned with the four dissenters' positions (also that the balancing approach was wrong) to create a majority that the balancing approach was wrong. The court explained that Chief Justice Roberts's second rationale (that the balancing approach was wrong) was dicta, and that under Marks the June Medical dissents (which also took issue with the balancing approach) don't count.)
The court said that because the balancing approach under Whole Women's Health was still the law, Indiana's bypass procedure still violated it.
Judge Kane dissented, arguing that under Marks Chief Justice Roberts's opinion in June Medical aligned with the plurality on a "substantial obstacle" test (without balancing, and not merely on stare decisis), and that Indiana's bypass procedure did not violate that "substantial obstacle" test.