EMW Women's Surgical Center v. Eric Friedlander

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0332p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

EMW WOMEN’S SURGICAL CENTER, P.S.C., on behalf ┐

of itself, its staff, and its patients; ERNEST MARSHALL, │

M.D., on behalf of himself and his patients, │

Plaintiffs-Appellees, │

│

> No. 18-6161

PLANNED PARENTHOOD OF INDIANA AND KENTUCKY, │

INC., │

Intervenor Plaintiff-Appellee, │

│

│

v. │

│

ERIC FRIEDLANDER, in his official capacity as │

Secretary of Kentucky’s Cabinet for Health and │

Family Services; ANDREW G. BESHEAR, Governor of │

Kentucky, in his official capacity, │

│

Defendants-Appellants,

│

│

DANIEL J. CAMERON, Attorney General of the │

Commonwealth of Kentucky, │

Intervenor. │

┘

Appeal from the United States District Court

for the Western District of Kentucky at Louisville.

No. 3:17-cv-00189—Gregory N. Stivers, District Judge.

Argued: August 8, 2019

Decided and Filed: October 16, 2020

Before: CLAY, LARSEN, and READLER, Circuit Judges.

_________________

COUNSEL

ARGUED: S. Chad Meredith, OFFICE OF THE GOVERNOR, Frankfort, Kentucky, for

Appellants. Easha Anand, ORRICK, HERRINGTON & SUTCLIFFFE LLP, San Francisco,

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 2

California, for Appellee Planned Parenthood of Indiana and Kentucky, Inc. Brigitte Amiri,

AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New York, for

Appellees Women’s Surgical Center, P.S.C. and Ernest Marshall, M.D. ON BRIEF: S. Chad

Meredith, M. Stephen Pitt, Matthew F. Kuhn, OFFICE OF THE GOVERNOR, Frankfort,

Kentucky, for Appellants. Easha Anand, Karen G. Johnson-McKewan, ORRICK,

HERRINGTON & SUTCLIFFFE LLP, San Francisco, California, Carrie Y. Flaxman,

PLANNED PARENTHOOD FEDERATION OF AMERICA, Washington, D.C., Michael P.

Abate, James E. McGhee, KAPLAN JOHNSON ABATE & BIRD LLP, Louisville, Kentucky,

Lisa T. Simpson, Jennifer M. Keighley, ORRICK, HERRINGTON & SUTCLIFFE LLP, New

York, New York, Melanie L. Bostwick, ORRICK, HERRINGTON & SUTCLIFFE LLP,

Washington, D.C., Robert L. Uriarte, ORRICK, HERRINGTON & SUTCLIFFE LLP, Menlo

Park, California, for Appellee Planned Parenthood of Indiana and Kentucky, Inc. Brigitte Amiri,

Elizabeth Watson, AMERICAN CIVIL LIBERTIES UNION FOUNDATION, New York, New

York, Donald L. Cox, LYNCH, COX, GILMAN & GOODMAN, P.S.C., Louisville, Kentucky,

Heather L. Gatnarek, ACLU OF KENTUCKY, Louisville, Kentucky, Amy D. Cubbage,

ACKERSON & YANN, PLLC, Louisville, Kentucky, for Appellees Women’s Surgical Center,

P.S.C. and Ernest Marshall, M.D. Thomas M. Fisher, OFFICE OF THE INDIANA

ATTORNEY GENERAL, Indianapolis, Indiana, Heidi Parry Stern, OFFICE OF THE NEVADA

ATTORNEY GENERAL, Carson City, Nevada, La Tasha Buckner, OFFICE OF THE

KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, Kimberly A. Parker, WILMER

CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., for Amici Curiae.

LARSEN, J., delivered the opinion of the court in which READLER, J., joined. CLAY,

J. (pp. 38–73), delivered a separate dissenting opinion.

_________________

OPINION

_________________

LARSEN, Circuit Judge. Two decades ago, the Kentucky General Assembly enacted a

law requiring abortion facilities to obtain transfer agreements with a local hospital and transport

agreements with a local ambulance service. Ky. Rev. Stat. (KRS) § 216B.0435. Regulations

promulgated in 2017 imposed stricter conditions on the agreements but also allowed successive,

ninety-day waivers for facilities unable to comply with the law. 902 Ky. Admin. Regs. (KAR)

20:360 § 10. The plaintiffs in this case, who were, at the time, Kentucky’s only licensed

abortion facility, its owner, and another facility seeking licensure, challenged the transfer- and

transport-agreement requirements as imposing an undue burden on abortion access. The

plaintiffs argued that it had become impossible for them to obtain the required agreements, and

that the law’s enforcement would leave Kentucky without a licensed abortion facility, thereby

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eliminating abortion access in the Commonwealth. Agreeing with the plaintiffs, the district court

held that Kentucky’s requirements were facially invalid and permanently enjoined them.

Kentucky1 appeals the permanent injunction, arguing, among other things, that the

plaintiffs failed to show that the law would in fact leave the Commonwealth without a licensed

facility, because a facility unable to obtain the required agreements could still obtain a waiver.

Kentucky also appeals the district court’s order imposing monetary sanctions for failure to

produce a designee for a properly noticed deposition. We conclude that the district court did not

abuse its discretion by imposing monetary sanctions, so we AFFIRM in part. But because the

district court erred in concluding that Kentucky would be left without an abortion facility, we

REVERSE in part, VACATE the permanent injunction, and REMAND for further proceedings.

I.

A.

In 1998, the Kentucky General Assembly imposed new licensing requirements on

abortion providers in response to concerns about the appalling, unsanitary conditions in some

Kentucky abortion facilities. As part of the new licensing scheme, the General Assembly

enacted KRS § 216B.0435, which required abortion facilities to acquire “a written agreement

with a licensed acute-care hospital capable of treating patients with unforeseen complications

related to an abortion facility procedure” as well as “a written agreement with a licensed local

ambulance service for the transport” of patients to the hospital. Id. § 216B.0435(1), (3). The

statute also requires abortion facilities to file these agreements with Kentucky’s Cabinet for

Health and Family Services (CHFS or “the Cabinet”). Id. § 216B.0435(4). The Office of

Inspector General oversees abortion facilities’ compliance with these regulations. Id.

§ 194A.030(1)(c)(1)–(4). In addition to abortion facilities, Kentucky requires ambulatory

surgical centers to “have a transfer agreement . . . in place with at least one (1) acute care

hospital.” Ky. Cabinet for Health & Fam. Servs., 2020–2022 State Health Plan 52 (Aug. 2020);

see 900 KAR 5:020 § 2(1) (incorporating by reference the state health plan).

1The defendants in this case are the Secretary of Kentucky’s Cabinet for Health and Family Services and

the Governor of Kentucky in their official capacities. We refer to the defendants collectively as “Kentucky” or “the

Commonwealth.”

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 4

Prior to 2017, Kentucky’s regulations implementing the transfer- and transport-agreement

requirements for abortion facilities merely parroted the statute. See 902 KAR 20:360 § 10

(2016). But beginning in 2016, Kentucky started scrutinizing these agreements more closely,

requiring that they adhere to stricter standards. And during the early stages of this litigation in

June 2017, Kentucky promulgated an emergency regulation amending 902 KAR 20:360 § 10 to

address concerns raised by Kentucky’s Inspector General regarding the lack of applicable

compliance standards. The new regulation imposed more stringent conditions on the necessary

agreements, including the requirement that transfer agreements be with a Kentucky-licensed

acute care hospital in the same county as the abortion facility or within a twenty-minute drive.

See 902 KAR 20:360 § 10(3)(a).

The new regulation also authorized ninety-day waivers of the transfer- and transport-

agreement requirements. Id. § 10(5). To apply for a waiver, the facility must certify that it “has

exhausted all reasonable efforts to obtain a transfer or transport agreement for a continuous

ninety (90) calendar day period prior to the request.” Id. § 10(5)(a)(2). In adjudicating the

waiver request, the Inspector General must consider the facility’s “[r]egulatory compliance

history” along with whether the facility has made “a good faith effort to obtain a transfer or

transport agreement” and whether the facility “can provide the same level of patient care and

safety via alternative health services during any extension period.” Id. § 10(5)(b)(1)–(3).

Though initially promulgated as an emergency regulation, these requirements are now embedded

in 902 KAR 20:360 § 10.

B.

For almost two decades, the transfer- and transport-agreement requirements posed no

challenge for facilities seeking a license to perform abortions. According to the district court,

compliance with KRS § 216B.0435 “appears to have been merely an item on the checklist of

licensure requirements, and the submitted agreements did not receive serious scrutiny.” But as

noted above, Kentucky began to scrutinize the required agreements more closely in 2016.

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 5

1.

Back in 2009, Planned Parenthood of Indiana and Kentucky had begun taking steps to

provide abortions in the Louisville area. Toward that end, Planned Parenthood raised nearly

$4 million to build a new Louisville facility, which was completed in 2015. Planned Parenthood

also obtained a transfer agreement with the Obstetrics and Gynecology Department at University

of Louisville Hospital and a transport agreement with Louisville Metro Emergency Medical

Services. It then filed an application with CHFS for an abortion-facility license in November

2015.

Health facilities in Kentucky may obtain a license only after the licensing agency

performs an unannounced, on-site inspection to determine that the facility complies with all

applicable regulations. 902 KAR 20:008 § 2(7). On December 1, 2015, an attorney for Planned

Parenthood sent an email to then-Inspector General Maryellen Mynear communicating the

organization’s understanding that the on-site-inspection provision “requires the applicant to

initiate business operations after filing an application so that your office will have an operational

facility to review when the unannounced licensure survey is conducted.” Inspector Mynear

responded, agreeing that “a facility must be performing services for which it seeks licensure so

that the survey (i.e., inspection) process may fully evaluate compliance with the applicable

regulations.” Planned Parenthood consequently began performing abortions in Louisville on

December 3.

Matthew Bevin became Governor of Kentucky five days later on December 8, 2015,

succeeding Steven Beshear. The following month, Stephanie Hold, the new acting Inspector

General, sent a letter directing Planned Parenthood to stop performing abortions because its

transfer and transport agreements were deficient and because Planned Parenthood was not yet

licensed. The letter stated that the Cabinet could not continue its review of Planned Parenthood’s

license application until Planned Parenthood had submitted new, compliant agreements. It also

rejected Inspector Mynear’s interpretation of the licensing regulations, asserting that Planned

Parenthood “is not permitted to perform the abortion procedure until a license is issued following

an inspection of [its] facility.” Planned Parenthood responded the next day, confirming that it

was no longer performing abortions at its Louisville facility.

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 6

Adopting acting Inspector Hold’s interpretation of the regulations, CHFS sued Planned

Parenthood in state court in February 2016, alleging that the abortions Planned Parenthood had

performed in December 2015 and January 2016 without a license had been illegal. The

Cabinet’s complaint requested that Planned Parenthood be fined for the alleged misconduct.

In the meantime, Planned Parenthood sought compliant transfer and transport agreements

in order to complete its license application. It entered into new agreements with University of

Louisville Hospital, but the hospital rescinded them shortly after signing them. Planned

Parenthood then tried unsuccessfully to obtain an agreement with other Louisville hospitals. It

ultimately entered into a transfer agreement with Clark Memorial Hospital in Indiana, which is

five miles away from Louisville, as well as with University of Kentucky Hospital in Lexington.

CHFS denied Planned Parenthood’s license application in June 2016, finding the submitted

transfer agreements inadequate. To support its decision, the Cabinet cited the distance between

Planned Parenthood’s Louisville facility and the University of Kentucky Hospital in Lexington

and the fact that Clark Memorial Hospital was not a Kentucky-licensed hospital.

Later that month, the Jefferson Circuit Court dismissed the Cabinet’s lawsuit against

Planned Parenthood for failure to state a claim. Commonwealth v. Planned Parenthood of Ind. &

Ky., No. 16-CI-0802, slip op. at 4 (Jefferson Cir. Ct. June 30, 2016). The Kentucky Court of

Appeals subsequently reversed the dismissal, holding that the Cabinet’s “allegations are

sufficient to state a claim upon which relief can be granted.” Commonwealth v. Planned

Parenthood of Ind. & Ky., Inc., No. 2016-CA-001125-MR, 2017 WL 6398298, at *2 (Ky. Ct.

App. Dec. 15, 2017). The suit remained ongoing throughout the proceedings below in this case.

2.

In addition to reviewing Planned Parenthood’s new agreements, CHFS also took a hard

look at the existing transfer and transport agreements of EMW Women’s Surgical Center,

P.S.C.—Kentucky’s only licensed abortion facility at the time. Owned by Ernest Marshall,

M.D., EMW’s Louisville facility has performed abortions since the 1980s. Prior to 2020, the

Louisville facility performed nearly all abortions in the Commonwealth. Dr. Marshall and all

other physicians on staff at EMW maintain admitting privileges at local hospitals. And prior to

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 7

2017, EMW maintained a transfer agreement with University of Louisville Hospital and a

transport agreement with Mercy Ambulance Service.

EMW had renewed its abortion facility license without issue in early 2016. The new

license was valid through May 31, 2017. But in March 2017, CHFS notified EMW that its

license had been renewed in error. EMW’s transfer and transport agreements, the Cabinet

explained, were not in compliance with Kentucky law. EMW was given ten days to cure the

deficiencies. If it failed to do so, it would have to either file an administrative appeal or lose its

license. EMW sought to cure the deficiencies, but no Louisville hospital would enter into a

compliant transfer agreement.

C.

Unable to secure a transfer agreement that would satisfy the Cabinet’s seemingly new

and more rigorous interpretation of the transfer-agreement regulation, EMW and Dr. Marshall

sued Vickie Yates Brown Glisson, then the Secretary of CHFS, in her official capacity in the

United States District Court for the Western District of Kentucky. They alleged that (1) the

enforcement of the transfer- and transport-agreement requirements violated substantive due

process by “impos[ing] a substantial obstacle on women seeking abortions,” (2) revoking

EMW’s license would violate procedural due process, (3) Kentucky had unconstitutionally

“delegate[d] standardless and unreviewable authority to private parties,” and (4) Kentucky’s

arbitrary enforcement of the requirements constituted First Amendment retaliation. EMW and

Dr. Marshall asked the district court to declare Kentucky’s requirements unconstitutional and to

enjoin CHFS from enforcing those requirements.

Two days after the plaintiffs filed suit, the district court granted an ex parte motion for a

temporary restraining order prohibiting Kentucky from enforcing KRS § 216B.0435 and 902

KAR 20:360 for fourteen days. The parties then agreed that the terms of the temporary

restraining order “will continue in full force and effect as a Preliminary Injunction until a final

judgment is entered in this action.”

In June 2017, Planned Parenthood intervened in the lawsuit. Besides suing the Secretary

of CHFS, Planned Parenthood also named then-Governor Bevin as a defendant in his official

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 8

capacity. Planned Parenthood alleged that (1) Kentucky’s transfer- and transport-agreement

requirements had the purpose and effect of imposing an undue burden on women seeking an

abortion, (2) the requirements violated the Equal Protection Clause by discriminating against

abortion facilities, (3) CHFS’s denial of Planned Parenthood’s license application violated

procedural due process, (4) Kentucky’s requirements constituted an unconstitutional delegation

of authority to private parties, (5) Kentucky’s failure to credit Planned Parenthood’s agreement

with an Indiana hospital violated the Full Faith and Credit Clause, and (6) Kentucky’s

requirements were void for vagueness. Like EMW, Planned Parenthood asked the district court

to declare Kentucky’s requirements unconstitutional and to enjoin their further enforcement.

After a three-day bench trial, the district court found “that the scant medical benefits from

transfer and transport agreements are far outweighed by the burden” they “impose[] on Kentucky

women seeking abortions.” EMW Women’s Surgical Ctr., P.S.C. v. Glisson, No. 3:17-CV-

00189-GNS, 2018 WL 6444391, at *1 (W.D. Ky. Sept. 28, 2018). The court therefore

concluded “that the challenged laws impermissibly ‘place[] a substantial obstacle in the path of

women seeking a previability abortion [and] constitute[] an undue burden on abortion access.’”

Id. (alterations in original) (quoting Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2300

(2016)). On this basis, the district court held that both the statute and the new regulations (which

had yet to be enforced) were unconstitutional. Id. at *30. The court issued a permanent

injunction against their enforcement. Id.

After granting judgment for the plaintiffs on their substantive due process claims, the

district court dismissed with prejudice EMW and Dr. Marshall’s procedural due process and First

Amendment retaliation claims along with Planned Parenthood’s procedural due process, full

faith and credit, and vagueness claims. Id. The district court dismissed the plaintiffs’ other

claims as moot.2 Id. Kentucky timely filed a notice of appeal.

2Based on what appears to be a clerical error in the district court’s opinion, Kentucky claims that the court

erroneously granted judgment on Planned Parenthood’s equal protection claim without making any relevant factual

findings or legal conclusions. See 2018 WL 6444391, at *30 (granting judgment in favor of Planned Parenthood on

Counts I and II of its complaint). But the district court expressly declined to adjudicate the equal protection claim.

See id. at *28 n.29. And the court’s judgment confirms that it granted judgment only on the plaintiffs’ substantive

due process challenge.

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 9

In addition to the parties, several amici submitted briefs on appeal. Most notably,

Andrew Beshear, then the Attorney General of Kentucky, filed a brief in support of the plaintiffs,

arguing that the district court should be affirmed because 902 KAR 20:360 § 10 is

unconstitutional.

D.

After Kentucky filed its notice of appeal, Planned Parenthood again applied for an

abortion-facility license in July 2019. CHFS denied the application in August 2019 on the

ground that Planned Parenthood had illegally performed abortions without a license in December

2015 and January 2016. Kentucky filed notice of this denial with the district court.

In December 2019, Attorney General Andrew Beshear became the new Governor of

Kentucky, replacing Matthew Bevin. That same month, Governor Beshear appointed Eric

Friedlander as Secretary of CHFS. Shortly thereafter, the Cabinet reversed its position on the

legality of Planned Parenthood’s December 2015 and January 2016 abortions. In January 2020,

the Cabinet voluntarily dismissed its lawsuit against Planned Parenthood because it had

“determined that there was not a ‘substantial failure to comply’ with the provisions of KRS

§ 216B by the Defendant when applying for a license to begin operation of its Louisville

facility.” Stipulation of Dismissal, Commonwealth v. Planned Parenthood of Ind. & Ky., Inc.,

No. 16-CI-0802 (Jefferson Cir. Ct. filed Jan. 14, 2020).3 That same month, and for the same

reason, the Cabinet rescinded its denial of Planned Parenthood’s license application and invited

the organization to reapply. Planned Parenthood did so and received a provisional license for its

Louisville facility by January 31, 2020. The facility presently performs abortions.4

3The parties have not fully informed this court of the developments that have occurred since Governor

Beshear’s election. We may, however, “take judicial notice of developments in related ‘proceedings in other courts

of record.’” Chase Bank USA, N.A. v. City of Cleveland, 695 F.3d 548, 553 n.2 (6th Cir. 2012) (quoting Walburn v.

Lockheed Martin Corp., 431 F.3d 966, 972 n.5 (6th Cir. 2005)).

4See Additional Citation of Att’y Gen. Cameron, ECF No. 96, at 2 (“Planned Parenthood has been granted

a license to operate an abortion facility in Louisville.”); Appellees’ Opp’n to Mot. to Intervene, ECF No. 90, at 11

(acknowledging that “Planned Parenthood was . . . able to obtain a license”); Planned Parenthood to Expand

Abortion Access in Kentucky, Planned Parenthood (Jan. 31, 2020, 10:25 PM),

https://www.plannedparenthood.org/planned-parenthood-indiana-kentucky/newsroom/planned-parenthood-to-

expand-abortion-access-in-kentucky [https://perma.cc/W4QU-7DRK]; Louisville Health Center of Louisville, KY,

Planned Parenthood, https://www.plannedparenthood.org/health-center/kentucky/louisville/40203/louisville-health-

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 10

On June 29, 2020, the Supreme Court decided June Medical Services L.L.C. v. Russo,

140 S. Ct. 2103 (2020), striking down a Louisiana law requiring abortion doctors to have

admitting privileges at a local hospital. Eight days later, the plaintiffs in this case submitted a

letter to the clerk of this court citing June Medical Services as a supplemental authority in favor

of affirmance. See Fed. R. App. P. 28(j). Kentucky did not respond to the letter. Then, on July

24, Daniel Cameron, who replaced now-Governor Beshear as Attorney General of Kentucky,

filed a motion in this court to intervene in his official capacity as a defendant-appellant so that he

could submit a Rule 28(j) letter on behalf of the Commonwealth responding to the plaintiffs’

letter. We granted the motion on August 6, and Attorney General Cameron submitted a letter on

August 12.

II.

Kentucky challenges the district court’s ruling that KRS § 216B.0435 and 902 KAR

20:360 § 10 violate Kentucky women’s substantive due process right to abortion and its

permanent injunction of their enforcement. The Commonwealth claims as a threshold matter

that EMW and Planned Parenthood, as abortion providers, do not have standing to challenge

health regulations on the ground that they violate their patients’ right to abortion. It further

argues that the challenged provisions are constitutional because they serve a legitimate purpose

and do not impose a substantial obstacle to abortion access. Kentucky’s standing argument is

now foreclosed by Supreme Court precedent. See June Med. Servs., 140 S. Ct. at 2118–20

(plurality opinion); id. at 2139 n.4 (Roberts, C.J., concurring in the judgment). We therefore

proceed to the merits.

center-3290-90500 [https://perma.cc/EKP2-V256] (last visited Sept. 18, 2020) (listing “Abortion” under “Services

Offered”). We “may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately

and readily determined from sources whose accuracy cannot reasonably be questioned.” United States v. Ferguson,

681 F.3d 826, 834 (6th Cir. 2012) (alteration in original) (quoting Fed. R. Evid. 201(b)); see Little Sisters of the

Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2375 (2020) (taking judicial notice of information

from a nongovernmental organization’s website); City of Monroe Emps. Ret. Sys. v. Bridgestone Corp., 399 F.3d

651, 655 n.1 (6th Cir. 2005) (same).

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 11

A.

1.

“In determining whether a district court has properly granted a permanent injunction, we

review factual findings for clear error, legal conclusions de novo, and the scope of injunctive

relief for abuse of discretion.” Lee v. City of Columbus, 636 F.3d 245, 249 (6th Cir. 2011)

(quoting Gibson Guitar Corp. v. Paul Reed Smith Guitars, LP, 423 F.3d 539, 546 (6th Cir.

2005)). A finding of fact is clearly erroneous when, after reviewing the full record, “we are ‘left

with the definite and firm conviction that a mistake has been committed.’” June Med. Servs.,

140 S. Ct. at 2141 (Roberts, C.J., concurring in the judgment) (quoting United States v. U.S.

Gypsum Co., 333 U.S. 364, 395 (1948)); accord United States v. Ramamoorthy, 949 F.3d 955,

964 (6th Cir. 2020). Although this standard “is deferential, it is not nugatory,” and we “may

reverse a lower [court’s] factual finding for clear error . . . even though the record contains some

evidence in support of the finding.” Indmar Prods. Co. v. Comm’r, 444 F.3d 771, 778 (6th Cir.

2006) (quoting Holmes v. Comm’r, 184 F.3d 536, 543 (6th Cir. 1999)). Moreover, the clear-

error rule “does not inhibit an appellate court’s power to correct errors of law, including those

that may infect . . . a finding of fact that is predicated on a misunderstanding of the governing

rule of law.” Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 501 (1984); accord

Abbott v. Perez, 138 S. Ct. 2305, 2326 (2018).

Injunctive relief is “an extraordinary remedy that may only be awarded upon a clear

showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 22 (2008); see Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (applying

this standard in the abortion context). To obtain a permanent injunction, the plaintiffs must

“establish that” their patients have “suffered a constitutional violation and will suffer ‘continuing

irreparable injury’ for which there is no adequate remedy at law.” Women’s Med. Pro. Corp. v.

Baird, 438 F.3d 595, 602 (6th Cir. 2006) (quoting Kallstrom v. City of Columbus, 136 F.3d 1055,

1067 (6th Cir. 1998)). It is not enough for plaintiffs to show a “possibility” of a constitutional

violation or even a “likelihood” of one; to obtain permanent injunctive relief, the plaintiffs must

make a clear showing that the challenged provisions “actual[ly]” violate their patients’

constitutional rights. See Winter, 555 U.S. at 21, 32 (quoting Amoco Prod. Co. v. Village of

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 12

Gambell, 480 U.S. 531, 546 n.12 (1987)). If they succeed in demonstrating an actual

constitutional violation and continuing irreparable injury, the plaintiffs must also show “that the

public interest would not be disserved by a permanent injunction.” eBay Inc. v. MercExchange,

L.L.C., 547 U.S. 388, 391 (2006).

2.

The constitutionality of laws regulating abortion is governed by the “undue burden” test

set forth in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 869–79

(1992) (joint opinion of O’Connor, Kennedy, and Souter, JJ.). See Stenberg v. Carhart, 530 U.S.

914, 921 (2000). Under that standard, a law regulating abortion is invalid if it “imposes an

undue burden on a woman’s ability” to choose to have an abortion before viability. Casey,

505 U.S. at 874 (joint opinion). “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 abortion of a nonviable fetus.” Id. at 877. Conversely, a law which “serves a

valid purpose” without imposing a substantial obstacle is constitutional, even if it “has the

incidental effect of making it more difficult or more expensive to procure an abortion.” Id. at

874.

Twenty-four years after Casey, the Supreme Court stated in Whole Woman’s Health v.

Hellerstedt that the undue burden test “requires that courts consider the burdens a law imposes

on abortion access together with the benefits those laws confer.” 136 S. Ct. at 2309; see also id.

at 2310 (stating that district court properly “weighed the asserted benefits” of the regulations at

issue “against the burdens”). Relying on this language, the district court in the present case

framed its inquiry not as whether KRS § 216B.0435 and 902 KAR 20:360 § 10 served a valid

purpose yet imposed a substantial obstacle; instead it asked whether the benefits of the

challenged provisions outweighed their burdens.

While this case was pending on appeal, the Supreme Court again considered the meaning

of the undue burden test in June Medical Services L.L.C. v. Russo, 140 S. Ct. 2103 (2020).

There, a fractured majority of the Court invalidated a Louisiana statute requiring abortion doctors

to have admitting privileges at a hospital within thirty miles of where they perform abortions. Id.

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at 2112, 2133 (plurality opinion); id. at 2142 (Roberts, C.J., concurring in the judgment). The

plurality opinion, joined by four Justices, took a balancing approach, determining that the undue

burden “standard requires courts independently to review the legislative findings upon which an

abortion-related statute rests and to weigh the law’s ‘asserted benefits against the burdens’ it

imposes on abortion access.” Id. at 2112 (plurality opinion) (quoting Whole Woman’s Health,

136 S. Ct. at 2310). The district court in that case had found that the Louisiana law would not

advance the state’s interest in women’s health and that many women seeking an abortion in

Louisiana would be unable to obtain one if the law went into effect. Id. Because the district

court’s findings were not clearly erroneous, the plurality upheld the district court’s determination

“that the balance tipped against the statute’s constitutionality.” Id. at 2120.

Writing for himself, Chief Justice Roberts agreed with the plurality that the district

court’s findings as to the law’s burdens were not clearly erroneous. Id. at 2139–41 (Roberts,

C.J., concurring in the judgment). “Because Louisiana’s admitting privileges requirement would

restrict women’s access to abortion to the same degree as Texas’s law” invalidated in Whole

Woman’s Health, the Chief Justice concluded that the Louisiana law could not “stand under [the

Court’s] precedent.” Id. at 2139. At the same time, however, he parted ways with the plurality

on what that precedent meant. According to the Chief Justice, “[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. Instead, “the ‘traditional rule’ that ‘state and federal legislatures [have] wide discretion to

pass legislation in areas where there is medical and scientific uncertainty’ is ‘consistent with

Casey.’” Id. (alteration in original) (quoting Gonzales v. Carhart, 550 U.S. 124, 163 (2007)).

And, because the Court in Whole Woman’s Health said “that it was applying the undue burden

standard of Casey” and “[n]othing more,” Chief Justice Roberts explained that he read Whole

Woman’s Health, like Casey, as “requiring a substantial obstacle before striking down an

abortion regulation.” Id. at 2138–39. Meanwhile, he read “the discussion of benefits in Whole

Woman’s Health []as not necessary to its holding.” Id. at 2139 n.3. In other words, the Chief

Justice explained, “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.” Id. at 2139 (quoting Whole Woman’s Health, 136 S. Ct. at 2300).

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According to the Chief Justice, an abortion-related law’s asserted “benefits” are relevant

only “in considering the threshold requirement that the State have a ‘legitimate purpose’ and that

the law be ‘reasonably related to that goal.’” Id. at 2138 (quoting Casey, 505 U.S. at 878, 882

(joint opinion)). “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.’” Id. (quoting Casey, 505 U.S. at 877 (joint opinion)).

3.

Because no opinion in June Medical Services garnered a majority, we, as a lower court,

have the “vexing task” of deciding which opinion controls. Triplett Grille, Inc. v. City of Akron,

40 F.3d 129, 133 (6th Cir. 1994). 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)

(quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, and

Stevens, JJ.)). 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.

United States v. Kratt, 579 F.3d 558, 562–63 (6th Cir. 2009) (quoting Triplett Grille, 40 F.3d at

134); see Grutter, 288 F.3d at 741.

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.

Kratt, 579 F.3d at 562 (quoting King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc)).

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. See Triplett Grille, 40 F.3d at 134. In a

fractured decision upholding the constitutionality of a law, that means the narrowest opinion is

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 15

the one whose rationale would uphold the fewest laws going forward.5 For example, in Regents

of the University of California v. Bakke, 438 U.S. 265 (1978), which upheld a state medical

school’s policy of considering race in admissions, Justice Brennan’s four-Justice opinion

concluded that “the more permissive intermediate scrutiny standard would apply” to the

consideration of race in admissions, whereas Justice Powell concluded that “strict scrutiny would

apply.” Grutter, 288 F.3d at 741. We held that “[b]ecause the set of constitutionally permissible

racial classifications under intermediate scrutiny by definition includes those classifications

constitutionally permissible under strict scrutiny, Justice Powell’s rationale would permit the

most limited consideration of race; therefore, it is Bakke’s narrowest rationale.” Id.

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 194.6

5Citing United States v. Cundiff, the dissent argues that we have read Marks to say that the “narrowest

opinion . . . is the concurring opinion that offers the least change to the law.” 555 F.3d 200, 209 (6th Cir. 2009)

(citations and quotation marks omitted). But the court’s discussion of Marks in Cundiff is entirely dictum, as

evidenced by its own language. The court decided to “leave ultimate resolution of the [Marks] debate to a future

case that turns on which test in-fact controls.” Id. at 210.

6Justice Stewart also concurred in Memoirs, concluding that the book at issue “was not suppressible

obscenity because it was not hardcore pornography.” Grutter, 288 F.3d at 739 (citation omitted). Although his

opinion “was also a logical subset of Justice Black and Douglas’ opinion,” it “would only have spoken for three

Justices and could therefore not have been the controlling rationale.” King, 950 F.2d at 781 n.6.

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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. June Med. Servs., 140 S.

Ct. at 2138 (Roberts, C.J., concurring in the judgment) (quoting Casey, 505 U.S. at 878, 882

(joint opinion)). All other laws regulating abortion, however, “are valid.” Id. at 2138 n.2. 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. Id. at 2120 (plurality

opinion) (quoting Whole Woman’s Health, 136 S. Ct. at 2309). 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.” Id. 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.7

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

7The plurality expressly reserved the question of what “standard of review” to “apply in cases where a

regulation is found not to impose a substantial obstacle to a woman’s choice.” June Med. Servs., 140 S. Ct. at 2133

(plurality opinion). Even with this reservation, however, the plurality’s approach to reviewing the benefits of

abortion regulations is still more stringent (or is at least not less stringent) than the Chief Justice’s. An abortion

regulation is reasonably related to a legitimate state interest under the Chief Justice’s rationale if it has a rational

basis. See id. at 2135. The plurality, on the other hand, would require states to introduce evidence affirmatively

establishing the benefits their laws confer. See id. at 2132 (concluding the challenged statute had no substantial

health benefit because “the State introduced no evidence” to that effect). That approach is more stringent than

traditional rational-basis review, under which “the government ‘has no obligation to produce evidence to sustain the

rationality of its action.’” Liberty Coins, LLC v. Goodman, 748 F.3d 682, 694 (6th Cir. 2014) (quoting TriHealth,

Inc. v. Bd. of Comm’rs, 430 F.3d 783, 790 (6th Cir. 2005)). In any event, even if the precise level of scrutiny it

would apply is unclear, the plurality would clearly scrutinize the benefits of abortion-related laws to some extent.

See June Med. Servs., 140 S. Ct. at 2120 (plurality opinion) (“[C]ourts must ‘consider the burdens a law imposes on

abortion access together with the benefits those laws confer.’” (citation omitted)). And rational-basis review is “the

least demanding” tier of scrutiny “used by the courts.” Berger v. City of Mayfield Heights, 154 F.3d 621, 625 (6th

Cir. 1998). It is therefore logically impossible for the plurality opinion’s standard to be more generous than the

Chief Justice’s.

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curiam) (holding that “Chief Justice Roberts’s separate opinion in June Medical . . . is

controlling”).8 “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 (quoting Blum v. Witco

Chem. Corp., 888 F.2d 975, 981 (3d Cir. 1989)); accord Grutter, 288 F.3d at 741–42.9

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

8Although we join the Eighth Circuit in this conclusion, a divided panel of the Fifth Circuit disagrees,

concluding “that the challenged Louisiana law posed an undue burden on women seeking an abortion is the full

extent of June Medical’s ratio decidendi.” Whole Woman’s Health v. Paxton, 972 F.3d 649, 653 (5th Cir. 2020) (per

curiam). But see id. at 654 (Willett, J., dissenting) (concluding that the Chief Justice’s opinion states “the now-

governing legal standard”). The Fifth Circuit concluded that the Chief Justice’s opinion cannot “be viewed as a

logical subset of the” plurality because “the Chief Justice expressly disavowed the plurality’s test.” Id. at 652–53

(majority opinion). “But fundamental disagreements about how to interpret [the provision of law at issue] do not

necessarily destroy a subset-superset relationship between the two opinions.” Kratt, 579 F.3d at 562; accord

Grutter, 288 F.3d at 740. The Chief Justice’s opinion is a logical subset of the plurality’s not because it agrees with

all of the plurality’s reasoning but because in every case in which it would invalidate an abortion regulation, the

plurality would also invalidate that regulation. If that were not so, Marks itself would be wrongly decided. The

Memoirs plurality disavowed Justices Douglas and Black’s view that the First Amendment absolutely prohibited

suppressing obscenity. Thus, under the logic of Paxton, the Memoirs plurality would not control because “the only

common denominator between the plurality and the concurrence is their shared conclusion that the challenged

[conviction] constituted [a First Amendment violation].” Paxton, 972 F.3d at 652.

9We are buoyed in this position by Supreme Court orders vacating two Seventh Circuit decisions and

remanding for further consideration in light of June Medical Services. See Box v. Planned Parenthood of Ind. &

Ky., No. 19-816, 2020 WL 3578672, at *1 (U.S. July 2, 2020); Box v. Planned Parenthood of Ind. & Ky., No. 18-

1019, 2020 WL 3578669, at *1 (U.S. July 2, 2020). The vacated circuit decisions used a balancing approach to

invalidate the laws at issue. If the Court believed that the balancing approach was the appropriate test, it is unclear

why it issued these orders.

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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.

4.

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.

Start with Marks itself. The majority in Memoirs, the decision analyzed in Marks, split

on the states’ power to treat written works with no redeeming social value as suppressible

obscenity. The plurality took a more permissive approach, concluding that states may suppress a

book if “(a) the dominant theme of the material taken as a whole appeals to a prurient interest in

sex; (b) the material is patently offensive because it affronts contemporary community standards

relating to the description or representation of sexual matters; and (c) the material is utterly

without redeeming social value.” Memoirs, 383 U.S. at 418 (plurality opinion). Justices Black

and Douglas adopted a stricter approach, concluding that “the First Amendment provides an

absolute shield against governmental action aimed at suppressing obscenity.” Marks, 430 U.S. at

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193. But because the book at issue did have redeeming social value, see Memoirs, 383 U.S. at

419 (plurality opinion), the plurality agreed with Justices Black and Douglas that the work was

not constitutionally suppressible, and the plurality’s view on the status of works with no

redeeming social value was not necessary to their votes to concur.

Under the dissent’s logic, the “narrowest reasoning supporting the judgment” in Memoirs

would be “simply and only” that a book with some redeeming social value is not suppressible

obscenity. Though the three-Justice plurality rejected the view that the First Amendment is an

absolute shield against obscenity laws, that conclusion would be treated as “dicta, as it was not

necessary to [their] vote[s] to concur.” See id. Accordingly, under the dissent’s reasoning, the

Memoirs plurality’s discussion of the constitutional status of books with no redeeming social

value would not control, just as, the dissent believes, the Chief Justice’s discussion of abortion

regulations not imposing a substantial obstacle is not controlling.

The Supreme Court, however, rejected that view in Marks. According to the Court,

“[t]he view of the Memoirs plurality . . . constituted the holding of the Court and provided the

governing standards” for what constituted suppressible obscenity, meaning that states could

suppress obscene materials if “the prosecution carried the burden of proving that they were

‘utterly without redeeming social value,’ and otherwise satisfied the stringent Memoirs

requirements.” Marks, 430 U.S. at 194 (emphasis added); see also id. at 194 n.8 (citing with

approval United States v. Groner, 479 F.2d 577, 588–89 (5th Cir. 1973) (en banc) (Clark, J.,

concurring), and Huffman v. United States, 470 F.2d 386, 394 (D.C. Cir. 1971), which affirmed

obscenity convictions because the government had established all three requirements set out in

the Memoirs plurality). Marks itself therefore establishes that the entirety of the test articulated

in the narrowest opinion concurring in the judgment—and not merely those conclusions strictly

necessary to its view that the judgment is correct—is “the controlling opinion” in that case.

430 U.S. at 193.

The dissent’s approach also contravenes our own caselaw. In Grutter, we held that “this

court must follow the reasoning of the concurring opinion [in Bakke] with the narrowest line of

reasoning on the issue of why the California Supreme Court could not permanently enjoin [the

University of California at] Davis from considering race.” 288 F.3d at 741 n.6 (emphasis

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 20

added). Accordingly, we concluded that “this court is bound by Justice Powell’s Bakke

opinion.” Id. at 742; see also id. at 758 (Clay, J., concurring) (“Justice Powell’s opinion in

Bakke is controlling.”). Although the only admissions program before the Court in Bakke was

U.C. Davis’s, Justice Powell, writing only for himself, discussed at length Harvard College’s

consideration of race in admissions and concluded that it survived strict scrutiny under the Equal

Protection Clause. Bakke, 438 U.S. at 316–18 (opinion of Powell, J.).

This was, of course, pure dictum. But because it was “our view that whether the

[Michigan] Law School’s admissions policy passes constitutional muster turns on Justice

Powell’s opinion,” we held that “an admissions policy modeled on the Harvard plan, where race

and ethnicity are considered a ‘plus,’ does not offend the Equal Protection Clause.” Grutter, 288

F.3d at 745–46. Because we thought the University of Michigan Law School’s use of race in

admissions was “virtually indistinguishable from the Harvard plan Justice Powell approved in

Bakke,” we upheld it as constitutional. Id. at 747; see also id. at 758 (Clay, J., concurring) (“I

concur in Chief Judge Martin’s majority opinion, finding it correct and insightful in all

respects.”). The lead dissent in Grutter contended that it was inappropriate to rely on Justice

Powell’s endorsement of the Harvard plan because that discussion was “non-binding dicta.” Id.

at 786 (Boggs, J., dissenting). The majority squarely rejected that argument, holding that the

endorsement of the Harvard plan provided the “appropriate basis for our opinion,” “[e]ven if this

portion of Justice Powell’s opinion could be labeled dicta.” Id. at 746 n.9 (majority opinion).

In short, the narrowest concurring opinion does not merely state the Court’s holding; it

“is the Court’s opinion” in that case, entitled to as much authority and respect as any other

opinion of the Supreme Court. J.L. Spoons, Inc. v. Dragani, 538 F.3d 379, 386 n.2 (6th Cir.

2008); see United States v. Duvall, 740 F.3d 604, 611 (D.C. Cir. 2013) (Kavanaugh, J.,

concurring in the denial of rehearing en banc) (“The binding opinion from a splintered decision

is as authoritative for lower courts as a nine-Justice opinion. . . . This is true even if only one

Justice issues the binding opinion.” (citation omitted)). We therefore adhere to both the holding

of the narrowest concurring opinion and its well-considered dictum setting forth a general

standard for how to apply the doctrine at issue. See ACLU of Ky. v. McCreary County, 607 F.3d

439, 447–48 (6th Cir. 2010) (Clay, J.) (“[T]his court considers itself bound by Supreme Court

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dicta almost as firmly as by the Court’s outright holdings, particularly when the dicta is recent

and not enfeebled by later statements.” (citation omitted)). Because the Chief Justice’s

controlling opinion in June Medical Services sets forth, in a considered opinion, a general

standard for how to apply the undue burden test, we must treat that standard as authoritative.

The dissent also invokes Agostini v. Felton, which says that a lower court may not hold

that “more recent cases” of the Supreme Court “have, by implication, overruled an earlier

precedent.” 521 U.S. 203, 237 (1997). Instead, “[i]f a precedent of [the Supreme] Court has

direct application in a case, yet appears to rest on reasons rejected in some other line of

decisions,” we “should follow the case which directly controls, leaving to [the Supreme] Court

the prerogative of overruling its own decisions.” Id. (first alteration in original) (quoting

Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)). But as the

dissent rightly acknowledges, “Chief Justice Roberts emphasized from the start that he was not

considering the validity of Whole Woman’s Health.” Dissenting Op. at 47. By its own terms,

the Chief Justice’s opinion interpreted and applied Whole Woman’s Health and did not overrule

it. As a lower court, we are bound by the Chief Justice’s interpretation of Whole Woman’s

Health, regardless of whether we would adopt that interpretation as a matter of first impression.

To see this, we need look no further than Casey itself. In that case, only three Justices

embraced the undue burden standard. See Casey, 505 U.S. at 874–79 (joint opinion). Although

those three Justices concluded that “the essential holding of Roe [v. Wade, 410 U.S. 113 (1973),]

should be reaffirmed,” Casey, 505 U.S. at 871 (joint opinion), they nevertheless “reject[ed] the

trimester framework” established by Roe as not “part of the [decision’s] essential holding.” Id.

at 873. A lower court applying Roe as a matter of first impression would certainly not have felt

free to reject the trimester framework, see, e.g., Wolfe v. Schroering, 541 F.2d 523, 525 (6th Cir.

1976) (applying the trimester framework in the aftermath of Roe), and the other six Justices in

Casey rejected the joint opinion’s reading of Roe, see Casey, 505 U.S. at 914 (Stevens, J.,

concurring in part and dissenting in part); id. at 930 (Blackmun, J., concurring in part, concurring

in the judgment in part, and dissenting in part); id. at 954 (Rehnquist, C.J., concurring in the

judgment in part and dissenting in part).

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But it does not matter whether any lower court judge might believe, to paraphrase the

dissent, that the three Justices’ “conclusion [about Roe] is contradicted by the clear language of

that case, as well as by [their] fellow justices in [Casey].” See Dissenting Op. at 47 n.4 (citation

omitted). Because the Casey joint opinion controls under Marks, we are bound by its

interpretation of Roe. See Women’s Med. Pro. Corp. v. Voinovich, 130 F.3d 187, 192 (6th Cir.

1997) (holding that “a plurality of the Casey Court discarded the trimester framework of Roe”).

Likewise, because the Chief Justice’s opinion in June Medical Services controls under Marks,

we are bound by its interpretation of Whole Woman’s Health. And if Casey’s joint opinion did

not implicitly overrule Roe, neither did the Chief Justice’s opinion implicitly overrule Whole

Woman’s Health.

For similar reasons, we are not swayed by the dissent’s appeal to the plurality opinion in

Ramos v. Louisiana, 140 S. Ct. 1390 (2020). Ramos is inapposite because, again, we do not rely

on “a single Justice’s opinion” that purports to “overrule prior precedents.” Id. at 1403 (plurality

opinion). And, in any event, the three-Justice plurality in Ramos is itself not controlling under

Marks.10 The Ramos plurality’s statement therefore does not govern.

The Chief Justice’s opinion in June Medical Services concurs in the judgment on the

narrowest grounds, so it is the “controlling opinion” from that decision. Marks, 430 U.S. at 193.

We must apply its reasoning as we would the reasoning of any other controlling Supreme Court

opinion. Duvall, 740 F.3d at 611 (Kavanaugh, J., concurring in the denial of rehearing en banc).

10Six Justices in Ramos agreed that Apodaca v. Oregon, 406 U.S. 404 (1972), a split decision with no

readily identifiable “narrowest” opinion, should be overruled. With the exception of Justice Thomas, the Justices

concurring in the judgment disagreed solely on whether Apodaca carried precedential force. In such a case where

the Court overrules a decision, the narrowest opinion will be the one that will overrule the fewest future decisions.

Because the plurality lends no stare decisis weight to fractured decisions with no single controlling opinion, it would

overrule all such decisions that reached an incorrect result. See Ramos, 140 S. Ct. at 1402 (plurality opinion).

Justices Sotomayor and Kavanaugh, on the other hand, would overrule all such decisions that reached an incorrect

result if the stare decisis factors militated in favor of overruling. See id. at 1409 (Sotomayor, J., concurring as to all

but Part IV-A); id. at 1414 (Kavanaugh, J., concurring in part). Thus, whenever Justices Sotomayor and Kavanaugh

would agree that a case with no controlling rationale should be overturned, a majority of the Court would concur in

the result, because the three Justices in the plurality would necessarily agree. When the stare decisis factors would

not favor overruling a decision with no controlling opinion, on the other hand, at most only four Justices (the

plurality plus Justice Thomas) would concur in the result. Justice Sotomayor’s and Kavanaugh’s view is therefore a

logical subset of, and controls over, the plurality’s.

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5.

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.

B.

We begin with the threshold requirement that KRS § 216B.0435 and 902 KAR 20:360

§ 10 be reasonably related to a legitimate state interest. June Med. Servs., 140 S. Ct. at 2135

(Roberts, C.J., concurring in the judgment). The district court, not having the benefit of June

Medical Services, determined for itself what risks are associated with abortion, to what extent

transfer and transport agreements mitigate those risks, and whether the challenged provisions

were effective at protecting women’s health. To aid the court, the parties presented competing

expert witnesses and medical-journal articles. After weighing the conflicting evidence and

making its own scientific and medical findings, the district court found that transfer- and

transport-agreements do not confer a substantial medical benefit. Accordingly, the district court

held that KRS § 216B.0435 and 902 KAR 20:360 § 10 “do not advance a legitimate interest in

promoting the health of women seeking abortions in Kentucky.” 2018 WL 6444391, at *25.

The plaintiffs contend that, even after June Medical Services, the district court’s findings

establish that the challenged provisions are “not reasonably related to a legitimate purpose” and

are therefore unconstitutional even if they do not impose a substantial obstacle. Additional

Citation of Pls.-Appellees, ECF No. 87, at 2.

The district court’s independent weighing of the challenged provisions’ asserted benefits

does not comport with the “‘traditional rule’ that ‘state and federal legislatures [have] wide

discretion to pass legislation in areas where there is medical and scientific uncertainty.’” June

Med. Servs., 140 S. Ct. at 2136 (Roberts, C.J., concurring in the judgment) (alteration in original)

(quoting Gonzales, 550 U.S. at 163). The Chief Justice’s opinion makes clear that it is not the

role of courts to attempt to “objectively assign weight” to “the State’s interests” in passing

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 24

regulations on abortion, including its interest in “the health of the woman.” Id. “Pretending that

we could pull that off would require us to act as legislators, not judges.” Id.

For the purposes of this threshold inquiry, it matters not at all whether the district court or

we believe the requirements of KRS § 216B.0435 and 902 KAR 20:360 § 10 to be sound policy.

Indeed, the Chief Justice noted that an abortion regulation may serve a legitimate purpose even if

a court were to determine it “ha[s] little if any benefit.” See id. at 2137. We are only to ascertain

whether the Kentucky General Assembly and the Cabinet had “a rational basis to act.”

Gonzales, 550 U.S. at 158. Under this highly deferential standard of scrutiny, a law “need not,”

in the court’s view, “be in every respect logically consistent with its aims” to be reasonably

related to a legitimate government interest. Williamson v. Lee Optical of Okla., Inc., 348 U.S.

483, 487 (1955); see Casey, 505 U.S. at 885 (joint opinion) (relying on Lee Optical to determine

that Pennsylvania’s informed consent provision served a legitimate purpose). Instead, a

reasonable relationship exists if there is a problem “at hand for correction” and “it might be

thought that the particular legislative measure was a rational way to correct it.” Lee Optical, 348

U.S. at 488.

The Chief Justice explained that the Supreme Court has consistently applied this

deferential standard in determining whether abortion regulations are reasonably related to a

legitimate state interest. See June Med. Servs., 140 S. Ct. at 2136–38 (Roberts, C.J., concurring

in the judgment). Casey itself held that a state could require that “a physician, as opposed to a

qualified assistant, provide information relevant to a woman’s informed consent.” 505 U.S. at

884 (joint opinion). It did so because “the States” have “broad latitude to decide that particular

functions may be performed only by licensed professionals, even if an objective assessment

might suggest that those same tasks could be performed by others.” Id. at 885 (citing Lee

Optical, 348 U.S. at 483); see June Med. Servs., 140 S. Ct. at 2137 (Roberts, C.J., concurring in

the judgment). Mazurek likewise held that a law “restricting the performance of abortions to

licensed physicians” served a valid purpose. 520 U.S. at 969. In so holding, the Court rejected

as irrelevant the respondents’ contention that “‘all health evidence contradicts the claim that

there is any health basis’ for the law,” resting instead on the broad discretion of states to impose

licensing requirements. Id. at 973 (citation omitted); see June Med. Servs., 140 S. Ct. at 2138

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 25

(Roberts, C.J., concurring in the judgment). Finally, the Court held in Gonzales that the federal

ban on partial-birth abortion (i.e. intact dilation and extraction) served a legitimate purpose, even

though arguably “the standard D & E is in some respects as brutal, if not more, than the intact D

& E.” 550 U.S. at 160. The Court reached that conclusion by determining that “[i]t was

reasonable for Congress to think that partial-birth abortion, more than standard D & E,”

undermined the integrity of the medical profession and respect for human life, not by making its

own assessment of the matter. Id.

Applying the same standard here, we cannot say that laws requiring abortion facilities to

have transfer and transport agreements with a local hospital are not reasonably related to a

legitimate government end. The district court found that it is sometimes necessary to transfer a

patient from an abortion facility to an emergency room because of an abortion-related

complication. See 2018 WL 6444391, at *11. There is thus a problem at hand for the Kentucky

legislature to correct. Lee Optical, 348 U.S. at 488. And one could easily see how requiring

abortion facilities to have transfer and transport agreements with a local hospital is a “rational

way to correct” that problem. Id. Transfer and transport agreements determine in advance what

duties each party has in an emergency and how the patient’s information will be transmitted from

the abortion facility to the hospital. It is reasonable to think that fixing these details ahead of

time streamlines the treatment of a patient in an emergency, thereby leading to better patient

health outcomes.

Indeed, such is the law of our circuit. In Baird, we considered the constitutionality of an

Ohio law requiring abortion facilities to “have a written transfer agreement with a local

hospital.” 438 F.3d at 599. As in this case, the plaintiffs in Baird introduced evidence that their

“patients rarely need to be hospitalized,” testimony from a physician that “he was not personally

aware of a single instance in which the presence of a transfer agreement made a difference in the

care a patient received,” and expert testimony that “written transfer agreements do not ensure

optimum patient care.” Id. at 601. Nevertheless, without delving into the record evidence, we

held that Ohio’s law “serve[s] a valid purpose,” because it “ensure[s]” that each abortion facility

“meets certain minimum standards.” Id. at 607. For the same reason, KRS § 216B.0435 and 902

KAR 20:360 § 10 “are ‘reasonably related’” to Kentucky’s “legitimate state interest” in maternal

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 26

health. June Med. Servs., 140 S. Ct. at 2135 (Roberts, C.J., concurring in the judgment) (quoting

Casey, 505 U.S. at 878 (joint opinion)). The district court, not having the benefit of the June

Medical Services decision, failed to perform traditional rational-basis review, and erred in

holding otherwise.

C.

Having determined that KRS § 216B.0435 and 902 KAR 20:360 § 10 are reasonably

related to a legitimate state interest, we now turn to whether the provisions “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)).

The district court held that KRS § 216B.0435 and 902 KAR 20:360 § 10 would impose a

substantial obstacle for women seeking abortion in Kentucky by leaving the Commonwealth

without any operating abortion facility. The plaintiffs have not presented any other basis for

concluding that the challenged provisions impose a substantial obstacle. Thus, so long as either

EMW or Planned Parenthood would be able to operate with the provisions in effect, we cannot

conclude that they impose a substantial obstacle.11 Kentucky concedes that EMW and Planned

Parenthood were not, at the time they applied, able to obtain compliant transfer and transport

agreements, but the Commonwealth maintains that both organizations’ facilities could operate by

obtaining waivers of the provisions’ requirements every ninety days under 902 KAR 20:360

§ 10(5).12 Because CHFS promulgated the waiver provision after the parties had already agreed

11The dissent maintains that the plaintiffs need not establish that both facilities will close, because the

closure of just one facility would create an undue burden “if the remaining facility was left unable to meet the

demand for abortions.” Dissenting Op. at 62 n.16. But the plaintiffs’ sole argument on the issue of burdens

throughout this litigation has been that the challenged provisions will prevent both EMW and Planned Parenthood

from operating, leaving Kentucky with zero operating abortion facilities.

12Kentucky also offers several reasons why the challenged provisions would not impose a substantial

obstacle even if they were to cause EMW’s and Planned Parenthood’s facilities in Louisville to close. First, it

claims that abortions could still be legally obtained in the Commonwealth at hospitals, ambulatory surgical centers,

and physicians’ offices. Second, it argues that EMW and Planned Parenthood could begin providing abortions at

their facilities in Lexington. Third, the Commonwealth claims that even if women could not obtain abortion in

Kentucky, they could obtain abortions in neighboring states. Because we conclude that EMW and Planned

Parenthood have not shown that the challenged provisions would cause their Louisville facilities to close, we need

not consider these alternative arguments.

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to preliminarily enjoin the challenged licensing requirements, EMW and Planned Parenthood

never had an opportunity to apply for a waiver. To prevail, therefore, the plaintiffs must make a

clear showing that their facilities would close if the waiver provision were given an opportunity

to take effect and they “attempted in good faith” to obtain waivers. June Med. Servs., 140 S. Ct.

at 2141 (Roberts, C.J., concurring in the judgment) (citation omitted).13 A finding of good faith

is “necessary to ensure that the [facilities’] inability to [operate] [would be] attributable to the

[challenged provisions] rather than a halfhearted attempt to obtain [waivers].” Id.14

The district court dismissed the effect of the waiver provision in just two sentences,

finding that it would be “exceedingly difficult” for EMW and Planned Parenthood’s facilities “to

survive” if they had to apply for a waiver every ninety days. 2018 WL 6444391, at *19. This

was so, the district court found, because they “would not likely be able to hire and keep staff

without knowing whether they could continue operating beyond ninety days, and no prudent

organization would risk millions of dollars investing in [an abortion] facility whose temporary

license would be based on the administrative whim of the Inspector General.” Id.

13The dissent argues that Kentucky cannot rely on the waiver provision to defend the constitutionality of

the challenged provisions, because the waiver provision has been preliminarily enjoined from the moment it was

promulgated. To obtain a permanent injunction, however, the plaintiffs must show that their patients “will continue

to suffer irreparable injury” “[a]bsent an injunction,” not assuming the waiver provision continues to be enjoined.

Saieg v. City of Dearborn, 641 F.3d 727, 742 (6th Cir. 2011) (emphasis added); see also Winter, 555 U.S. at 20, 32.

A court enjoins the enforcement of a law because it has found the law to be unconstitutional, not the other way

around.

14Relying on Northland Family Planning Clinic v. Cox, 487 F.3d 323 (6th Cir. 2006), EMW argues that

the waiver provision has no bearing on whether the challenged regulations impose a substantial obstacle because it is

merely “a government official’s interpretation of an abortion restriction” that CHFS can revoke at any time. In Cox,

a panel of this court invalidated Michigan’s ban on partial-birth abortion because it banned both dilation-and-

extraction (D & X) abortions and dilation-and-evacuation (D & E) abortions. Id. at 339. Michigan argued that the

plaintiffs’ challenge was moot because the Michigan attorney general had issued an opinion interpreting the state’s

ban as applying only to D & X abortions. Id. at 341. We disagreed because the attorney general’s opinion lacked

the force of law under state law; it did not even bind the office of the attorney general. Id. at 342. Here, by contrast,

902 KAR 20:360 § 10(5) is a “duly promulgated” regulation; as such, it “ha[s] the force and effect of law.” Faust v.

Commonwealth, 142 S.W.3d 89, 98 (Ky. 2004). Moreover, CHFS is “bound by the regulations it promulgates.”

Hagan v. Farris, 807 S.W.2d 488, 490 (Ky. 1991). Because 902 KAR 20:360 § 10(5) alters the substantive law

governing abortion in Kentucky, any claim for injunctive relief EMW may have had based on the effect of the

Commonwealth’s licensing requirements before the waiver provision was promulgated is moot; that CHFS

promulgated 902 KAR 20:360 § 10(5) mid-litigation makes no difference. See N.Y. State Rifle & Pistol Ass’n, Inc.

v. City of New York, 140 S. Ct. 1525, 1526 (2020) (per curiam).

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 28

1.

The district court’s findings of fact rest in part on an error of law. The district court

presumed that because the issuance of waivers is discretionary, it is a matter of “administrative

whim.” But “[d]iscretion is not whim,” Martin v. Franklin Capital Corp., 546 U.S. 132, 139

(2005), and a discretionary decision is not one unconstrained by law or objective standards, see

Halo Elecs., Inc. v. Pulse Elecs., Inc., 136 S. Ct. 1923, 1931–32 (2016) (“‘[I]n a system of laws

discretion is rarely without limits,’ even when the statute ‘does not specify any limits upon the

[agency’s] discretion.’” (first alteration in original) (citation omitted)). In determining whether

to grant a waiver to an abortion facility, the Inspector General must consider (1) whether the

facility is making “a good faith effort to obtain a transfer or transport agreement,” (2) whether

the facility “can provide the same level of patient care and safety via alternative health services

during any extension period,” and (3) the facility’s history of regulatory compliance. 902 KAR

20:360 § 10(5)(b); see Hagan v. Farris, 807 S.W.2d 488, 490 (Ky. 1991) (“An agency must be

bound by the regulations it promulgates.”). If the Inspector General denies an application for a

waiver, an abortion facility may seek administrative review of the denial and ultimately judicial

review in state court. See 902 KAR 20:360 §§ 4(2)–(3), 10(5)(f); Lindall v. Ky. Ret. Sys., 112

S.W.3d 391, 394 (Ky. Ct. App. 2003) (explaining that a court can reverse an administrative

decision “if the agency acted arbitrarily or outside the scope of its authority, if the agency

applied an incorrect rule of law, or if the decision itself is not supported by substantial evidence

in the record”); Commonwealth v. Frasure’s Riverview Pers. Care Home, No. 2012-CA-002128-

MR, 2014 WL 97472, at *4 (Ky. Ct. App. Jan. 10, 2014) (holding that a hearing denial by CHFS

“was arbitrary and capricious”).

Absent “clear evidence to the contrary,” we must “presume that [public officials] have

properly discharged their official duties.” United States v. Martin, 438 F.3d 621, 634 (6th Cir.

2006) (alteration in original) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14–15

(1926)); see also U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001) (“[A] presumption of

regularity attaches to the actions of Government agencies.”); Jones v. FBI, 41 F.3d 238, 242 (6th

Cir. 1994) (“[A]gency actions . . . are normally entitled to a presumption of good faith.”);

Comprehensive Health of Planned Parenthood Great Plains v. Hawley, 903 F.3d 750, 756 (8th

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 29

Cir. 2018) (holding that courts must presume state officials will act in good faith when state law

grants them discretion to waive regulations on abortion facilities). The district court made no

findings of fact as to whether the Inspector General would act in good faith; instead it assumed

that the Inspector General would act based on “whim.” But we must presume that the Inspector

General will consider waiver applications in good faith and will not act “simply to make it more

difficult for [women] to obtain an abortion.” Memphis Planned Parenthood, Inc. v. Sundquist,

175 F.3d 456, 461 (6th Cir. 1999).15

“Because the record is practically devoid of any information on the mechanics of the

Waiver Provision,” and because we must presume good faith, we simply have “no way” of

determining how the Inspector General will act on waiver applications. Hawley, 903 F.3d at

756. We cannot rule out the possibility that he will grant EMW and Planned Parenthood

quarterly waivers as a matter of course. And because the plaintiffs bear the burden of making a

“clear showing” of an “actual” constitutional violation, Winter, 555 U.S. at 22, 32, and of a

“continuing irreparable injury,” Baird, 438 F.3d at 602 (citation omitted), they must establish

that both EMW and Planned Parenthood would be unable to operate on the basis of waivers even

if they could reasonably expect to obtain a new waiver every ninety days.16

2.

Turning now to the facts, no evidence supports the district court’s finding that Planned

Parenthood would be unable to operate on the basis of quarterly waivers. Planned Parenthood’s

only evidence at trial addressing this issue was the testimony of Kimberly Greene, the Chair of

the Board of Directors of Planned Parenthood of Indiana and Kentucky. Greene never testified

that Planned Parenthood would be unable to hire or retain staff if it had to rely on waivers to

15We note, moreover, that since the election of Governor Beshear, the Cabinet has reversed its position that

Planned Parenthood had illegally performed abortions in December 2015 and January 2016, voluntarily dismissed

its lawsuit against Planned Parenthood despite prevailing at the Kentucky Court of Appeals, and rescinded, on its

own initiative, its August 2019 denial of Planned Parenthood’s license application. These actions cannot be squared

with an assertion that the Inspector General will act simply to make it more difficult for women to obtain abortions.

16The dissent faults the Commonwealth for failing to produce affirmative evidence that the plaintiffs will

be able to operate under quarterly waivers, but it is the plaintiffs’ burden to show the existence of a constitutional

violation, not the Commonwealth’s burden to show the absence of one. The plaintiffs accordingly must show that

they will not be able to operate on the basis of waivers, as Planned Parenthood conceded at oral argument. See Oral

Arg. Audio at 37:35–42.

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retain its license.17 Instead, she testified that she did not believe Planned Parenthood “would

have been able to raise money” for its Louisville facility if its board had known it “would only

get a 90-day provisional license.” Tr. Trans., Vol. 2B, R. 116, PageID 4304. But that facility

was already built and outfitted at the time of trial, and Planned Parenthood performs abortions

there now. Greene’s counterfactual discussion of past events has no bearing on the prospective

effect of the challenged provisions. As the district court itself observed at trial:

THE COURT: All right. I want to make sure I understand this. The money has

been raised. The facility has been built. It’s been equipped. And at this point not

only is the facility operational, but you-all did actually perform abortion services

there prior to getting the letter on January 28th?

THE WITNESS [Greene]: That’s right.

Id. at PageID 4305. When asked on cross-examination why Planned Parenthood would “not ask

for a time extension [i.e. a ninety-day waiver] and see what happens,” Greene responded,

“Maybe we will.” Id. at PageID 4321.

None of this testimony supports the finding that Planned Parenthood would be unable to

operate if it applied for quarterly waivers while seeking transfer and transport agreements.

If anything, Greene’s testimony on cross-examination suggests that Planned Parenthood itself

had not ruled out the possibility of operating on that basis. Accordingly, the district court’s

finding as to Planned Parenthood was clearly erroneous. See United States v. Mahaffey, 53 F.3d

128, 133 (6th Cir. 1995) (holding that a finding that “totally lacks an evidentiary basis in the

record . . . is clearly erroneous”). Because the plaintiffs have failed to show that KRS

§ 216B.0435 and 902 KAR 20:360 § 10 would prevent Planned Parenthood from performing

abortions in its Louisville facility, they have failed to show that the challenged provisions would

leave Kentucky without a licensed abortion facility. Accordingly, they have not shown that the

statute and regulation would have the effect of imposing a substantial obstacle to abortion access

in Kentucky.

17The dissent claims that testimony from EMW’s owner that EMW would not be able to retain staff is

sufficient to establish that Planned Parenthood would not be able to retain staff. The undue burden standard,

however, requires an individuated assessment of each abortion provider’s ability to comply with licensing

regulations. If that were not the case, it hardly would have been necessary for the plurality in June Medical Services

to painstakingly analyze each abortion doctor in Louisiana’s ability to comply with the requirements at issue in that

case. See 140 S. Ct. at 2122–28 (plurality opinion); id. at 2141 (Roberts, C.J., concurring in the judgment).

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 31

Moreover, even if we disregarded Planned Parenthood, the district court’s finding that

EMW would not be able to operate by applying for quarterly waivers is clearly erroneous as

well. The district court relied for its finding on the trial testimony of Dr. Marshall. When asked

whether EMW would be able to operate by applying for a waiver every ninety days, Dr. Marshall

testified:

Well, I think the problem is that your license is at stake every 90 days, so you’re

at the whim of being closed every 90 days. There’s no security that you can

even—you can’t offer a person a job and say, “Well, I have you a job for 90 days,

but I don’t know if I’m going to have you a job past that.” We wouldn’t be able

to hire any staff.

Tr. Trans., Vol. 1B, R. 112, PageID 4121. In response to subsequent questioning, Dr. Marshall

acknowledged that his answer contradicted his deposition testimony. He continued:

. . . I’ve thought about what you asked me a lot, and my answer has changed since

then. . . . Because at that time I was just thinking about the technicality of it, not

the ramifications. And once I thought about the ramifications, then it would be

burdensome.

Id. at PageID 4122.

Dr. Marshall’s testimony rests on the assumption that EMW would be “at the whim of

being closed every 90 days” if it relied on quarterly waivers. Accepted as true, this establishes

only that EMW would be unable to retain staff if the Inspector General’s decision on whether to

grant a waiver were arbitrary. As we explained above, however, as a matter of law we may not

make that assumption.

And even if we were to accept the district court’s legally erroneous assumption,

Dr. Marshall’s testimony would still be too conclusory to make a clear showing that a “good

faith” (and not merely “halfhearted”) attempt to operate on quarterly waivers would be futile.

See June Med. Servs., 140 S. Ct. at 2141 (Roberts, C.J., concurring in the judgment). The

substantial-obstacle determination in June Medical Services turned on whether the district court

had clearly erred in finding that three Louisiana abortion doctors who were unable to obtain

admitting privileges at a local hospital had made good-faith efforts to do so. See id. at 2124–28

(plurality opinion); id. at 2141 (Roberts, C.J., concurring in the judgment) (endorsing the

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 32

plurality’s discussion of the physicians’ efforts to obtain admitting privileges). All three made

some attempt to comply. From the plurality’s close examination of the record to determine what

each doctor did and did not do to obtain admitting privileges, we can see that while “[g]ood faith

does not require an exercise in futility,” id. at 2128 (plurality opinion), a finding of futility

requires more than an abortion provider’s subjective belief that efforts at compliance would be

futile. The provider’s belief must be “reasonabl[e],” and the reasonableness of the belief must be

established by record evidence. Id. at 2125.

Here, the record evinces only Dr. Marshall’s subjective belief that it would be impractical

to operate on the basis of quarterly waivers. No evidence in the record speaks to whether that

belief is objectively reasonable. There is no indication, for instance, that Dr. Marshall asked any

current employees whether they would be willing to remain on staff if EMW were to operate on

the basis of waivers. Nor is there any evidence that he sought replacements for any critical staff

members he would be likely to lose, if he would be likely to lose any. Nor does the record

contain any other specific facts that would give rise to the inference that it would be pointless to

attempt to retain or hire staff. Without relevant evidence in the record, we simply cannot know

whether an abortion provider making a wholehearted effort to comply with the waiver provision

would reasonably conclude that he would be unable to maintain a staff.18

Despite our explicit reliance on the plurality opinion in June Medical Services (endorsed,

in this part, by Chief Justice Roberts), the dissent curiously accuses us of relying on Justice

Alito’s dissent. A review of the plurality’s substantial-obstacle determination in June Medical

Services shows why this is wrong.

As noted above, the question in June Medical Services was whether three Louisiana

abortion doctors had made good-faith efforts to obtain hospital admitting privileges. The district

court, “after monitoring the doctors’ efforts for a year and a half,” determined that they had. Id.

18We note that both of the physicians who perform abortions at EMW alongside Dr. Marshall are also

professors at the University of Louisville School of Medicine. If they have an alternative source of employment and

only perform abortions at EMW part time, would they necessarily be unwilling to continue working there if EMW

had to rely on waivers to keep its license? Or if keeping physicians on staff is not the problem, which position

would EMW not be able to fill? We have no way of knowing the answers to these questions from Dr. Marshall’s

testimony, nor do we know whether Dr. Marshall asked himself these sorts of questions before concluding that

EMW would be unable to retain staff.

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at 2124 (plurality opinion). The Supreme Court plurality, and Chief Justice Roberts, agreed. Id.;

id. at 2141 (Roberts, C.J., concurring in the judgment). But not before devoting many pages of

the U.S. Reports to a doctor-by-doctor, and hospital-by-hospital, analysis of the record evidence

supporting each physician’s claim of futility.19 Id. at 2124–28 (plurality opinion).

We take the plurality’s painstaking review of the evidence supporting the district court’s

determination that each doctor acted in good faith as our model. From that example, we learn

that good-faith efforts to comply with the law matter; that record evidence must support a

physician’s assertion of futility; and that appellate courts should do as the Supreme Court

plurality did—review the record for some support of the claim. We have done that here. What

this record contains is a legally erroneous assumption that the Inspector General would act in bad

faith and an unsupported assertion from Dr. Marshall that he could not operate with such

uncertainty. That is a far cry from the evidence that the plurality deemed sufficient to support

the substantial-obstacle determination in June Medical Services. Justice Alito, to be sure, would

have demanded more. Id. at 2158–65 (Alito, J., dissenting). We are not sure why that matters; it

does not follow that the plurality would have been satisfied with less. The plurality’s careful

look at each doctor’s efforts is our guide. Guided by the analysis of the plurality opinion, the

evidence in this case was insufficient to establish a good-faith attempt, even under the deferential

clearly erroneous standard.

19To illustrate: The plurality noted that in response to Doe 2’s application, the Willis-Knighton Health

Center sent a letter requiring him “to submit records of hospital admissions” in order to establish his eligibility,

“even though he had not ‘done any in-hospital work in ten years.’” June Med. Servs., 140 S. Ct. at 2125 (citation

omitted) (plurality opinion). “The record also show[ed] that Doe 2 could not have maintained the ‘adequate number

of inpatient contacts’ Willis-Knighton requires to support continued privileges.” Id. “Doe 2” therefore “reasonably

believed there was no point in” continuing to pursue admission privileges there. Id. Doe 5 needed a covering

physician at the hospital to obtain admitting privileges so he asked “the doctor” with whom his “clinic already had a

patient transfer agreement.” Id. at 2126. That doctor declined because he “worried that it could make him a target

of threats and protests.” Id. Doe 5 knew that other physicians with whom he had a less-established relationship

would likely raise the same objection, because “[a]nti-abortion protests had previously forced him to leave his

position as a staff member of a hospital northeast of Baton Rouge.” Id. “With his own experience and their existing

relationship in mind, Doe 5 could have reasonably thought that, if this doctor wouldn’t serve as his covering

physician, no one would.” Id. Finally, “Doe 6 testified that he did not apply to other hospitals because he did not

admit a sufficient number of patients to receive active admitting privileges.” Id. at 2127. “The State’s own

admitting-privileges expert . . . testified that a doctor in Doe 6’s position would ‘probably not’ be able to obtain

‘active admitting and surgical privileges’ at any hospital,” and both witness’s testimony was “well-supported” by

other evidence in the record. Id. at 2127–28 (citation and emphases omitted). Doe 6 therefore acted in good faith as

well. Id. at 2128.

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We are thus “left with the definite and firm conviction that a mistake has been

committed.” Id. at 2141 (Roberts, C.J., concurring in the judgment) (quoting Gypsum, 333 U.S.

at 395). There was insufficient evidence for the district court to find that it would be futile for

EMW to make a “good faith” attempt to operate on the basis of ninety-day waivers. Id. The

plaintiffs have failed to show that EMW’s inability to operate on the basis of waivers would be

properly “attributable to the [challenged provisions] rather than a halfhearted attempt” to comply

with the waiver provision, even if we indulge the improper assumption on which Dr. Marshall’s

testimony is premised. Id.

EMW and Planned Parenthood have failed to make a clear showing that both of their

abortion facilities would close if KRS § 216B.0435 and 902 KAR 20:360 § 10 go into effect.

But that is the showing they must make. The district court’s permanent injunction was based on

the assumption that the regulations requiring transport and transfer agreements would impose an

undue burden on the right to abortion by leaving Kentucky without an operating abortion facility.

That conclusion cannot be sustained. Accordingly, we reverse the district court’s judgment in

favor of the plaintiffs on their substantive due process claims, and we vacate the permanent

injunction. The district court should consider on remand the plaintiffs’ remaining claims for

relief.

III.

One final matter requires resolution. During discovery, Kentucky failed to produce a

representative from the Governor’s Office for a deposition properly noticed by Planned

Parenthood. Planned Parenthood moved for sanctions. A magistrate judge granted Planned

Parenthood’s motion and ordered the Governor’s Office to reimburse Planned Parenthood for the

reasonable expenses caused by its failure to appear. EMW Women’s Surgical Ctr., P.S.C. v.

Glisson, No. 3:17CV-00189-GNS, 2017 WL 4897528, at *5 (W.D. Ky. Oct. 30, 2017). Planned

Parenthood then submitted a bill of costs to the district court. Rejecting Kentucky’s objections to

both the bill of costs and the magistrate judge’s order, the district court awarded Planned

Parenthood $21,140.25 in attorney’s fees and costs. EMW Women’s Surgical Ctr., P.S.C. v.

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 35

Bevin, No. 3:17-CV-189-GNS, 2018 WL 10229473, at *9 (W.D. Ky. Sept. 28, 2018).20

Kentucky appeals, contesting both the decision to order sanctions and the amount of the award.

A district court may order sanctions if “a party . . . fails, after being served with proper

notice, to appear for that person’s deposition.” Fed. R. Civ. P. 37(d)(1)(A)(i). Such a failure “is

not excused on the ground that the discovery sought was objectionable, unless the party failing to

act has a pending motion for a protective order under Rule 26(c).” Fed. R. Civ. P. 37(d)(2).

When a district court orders sanctions under Rule 37(d), it “must require the party failing to act,

the attorney advising that party, or both to pay the reasonable expenses, including attorney’s

fees, caused by the failure, unless the failure was substantially justified or other circumstances

make an award of expenses unjust.” Fed. R. Civ. P. 37(d)(3). “A district court’s decision to

invoke Rule 37 sanctions is reviewed by this court for an abuse of discretion.” McCarthy v.

Ameritech Publ’g, Inc., 763 F.3d 488, 490 (6th Cir. 2014) (quoting Beil v. Lakewood Eng’g &

Mfg. Co., 15 F.3d 546, 551 (6th Cir. 1994)).

Relying on Rule 37(d)(2), Kentucky argues that a party’s failure to appear is always

excused if the party has a pending motion for a protective order; and here the Commonwealth

had filed a motion for a protective order the night before the deposition. But having a pending

protective order is merely a necessary condition for excusing a party’s failure to appear. It is not

alone sufficient. See Fed. R. Civ. P. 37 advisory committee’s note to 1970 amendment (“[Rule

37(d)(2) was] added to make clear that a party may not properly remain completely silent even

when he regards a notice to take his deposition . . . as improper and objectionable. If he desires

not to appear or not to respond, he must apply for a protective order.”); Albert v. Starbucks

Coffee Co., 213 F. App’x 1, 2 (D.C. Cir. 2007) (per curiam) (rejecting “the proposition that the

mere filing of a motion for protective order requires the court to excuse a party’s failure to obey

a court order compelling attendance at a deposition”). The district court did not abuse its

20Planned Parenthood actually requested $21,190.25 in its bill of costs. The district court found that

“Planned Parenthood requests $19,395 in attorneys’ fees . . . and $1,795.25 for airfare and hotel costs,” adding up to

$21,190.25. 2018 WL 10229473, at *4. The district court determined that both of these sums were reasonable, id.

at *8, but its order at the end of the opinion awards Planned Parenthood $50 less, $21,140.25, see id. at *9 (awarding

“$19,395.00 in attorneys’ fees and $1,745.25 in costs”). This $50 discrepancy appears to be a clerical error.

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 36

discretion by taking into account the last-minute nature of Kentucky’s motion for a protective

order.

Kentucky further contends that the Governor’s Office was substantially justified in

failing to send a representative because one of its attorneys, Jennifer Wolsing, was not timely

notified of Planned Parenthood’s notice of deposition. Even assuming this allegation is true, it is

irrelevant. The magistrate judge found that Planned Parenthood had served a notice of

deposition on two other attorneys for the Governor’s Office more than two weeks before the

scheduled deposition. Kentucky does not challenge this finding on appeal. A deposing party

“must give reasonable written notice to every other party,” not every attorney. Fed. R. Civ. P.

30(b)(1) (emphasis added); see also Fed. R. Civ. P. 5(a)(1). “When a party is represented by

more than one attorney, service upon any one of them satisfies” this requirement. 4B Charles

Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1145 (4th ed. 2008, Apr.

2020 update); accord Buchanan v. Sherrill, 51 F.3d 227, 228 (10th Cir. 1995) (per curiam);

Daniel Int’l Corp. v. Fischbach & Moore, Inc., 916 F.2d 1061, 1063 (5th Cir. 1990).

Turning to the amount of the award, Kentucky objects to paying the travel costs of Karen

Johnson-McKewan, Planned Parenthood’s lead counsel. The Commonwealth claims that she did

not need to fly from California to Kentucky because counsel for the Governor’s Office had

clearly communicated that no representative would attend the deposition. If the only purpose of

the trip was to make a record that the Governor’s Office did not appear, Kentucky argues,

Planned Parenthood could have relied on local counsel instead. Although “reasonable expenses”

under Rule 37(d)(3) do not include “expenses and fees” that “could have been avoided and were

self-imposed,” INVST Fin. Grp., Inc. v. Chem-Nuclear Sys., Inc., 815 F.2d 391, 404 (6th Cir.

1987), here it was reasonable for Johnson-McKewan to travel to Kentucky. Both parties knew

that the Governor’s Office had a duty to send a representative under threat of sanction. Planned

Parenthood “could reasonably have believed that [the Governor’s Office] might consider the

consequences of failing to attend and change [its] mind.” John Wiley & Sons, Inc. v. Book Dog

Books, LLC, 298 F.R.D. 145, 151 (S.D.N.Y. 2014). It was thus reasonable for Planned

Parenthood to prepare fully for the deposition and send its lead counsel in case the Governor’s

Office decided to appear.

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 37

Kentucky also claims it was excessive for Planned Parenthood to bill 23.5 hours for the

time spent on its sanctions motion and 20 hours for the reply in support of it. Those figures do

seem high, but the district court determined them to be reasonable after considering “[t]he

content and quality” of the filings in detail. 2018 WL 10229473, at *7. Kentucky presents no

argument why the time was excessive beyond italicizing the numbers involved and asserting that

they are too high. We cannot conclude that the district court abused its discretion in awarding

$21,140.25 in fees and costs.

***

For the foregoing reasons, we AFFIRM the district court’s award of sanctions,

REVERSE its judgment in favor of the plaintiffs’ substantive due process claims, VACATE the

permanent injunction, and REMAND for further proceedings consistent with this opinion.

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 38

_________________

DISSENT

_________________

CLAY, Circuit Judge, dissenting. Today, the majority openly disregards our standard of

review and discards binding precedent. In doing so, it condones the evisceration of the

constitutional right to abortion access in Kentucky.

This case presents the straightforward issue of whether Kentucky’s requirement that

abortion facilities enter into both a transfer agreement with a Kentucky-licensed acute-care

hospital and a transport agreement with a Kentucky-licensed ambulance service constitutes an

undue burden on abortion access. See Ky. Rev. Stat. (“KRS”) § 216B.0435; 902 Ky. Admin.

Regs. (“KAR”) 20:360 § 10. In the last five years, the Supreme Court has twice found laws

imposing lesser burdens unconstitutional in violation of the Fourteenth Amendment. June Med.

Servs. v. Russo, 140 S. Ct. 2103, 2112–13 (2020) (plurality opinion); id. at 2134 (Roberts, C.J.,

concurring); Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2300 (2016). Yet the

majority refuses to recognize the burden imposed on women by Kentucky’s requirement,

claiming that the district court clearly erroneously found that this requirement would effectively

eliminate abortion access in the Commonwealth. Instead, the majority contends—without

grounding in fact or reason—that Kentucky’s abortion facilities could continue to provide

abortions if they continually and indefinitely applied for ninety-day extensions of the deadline to

obtain transfer and transport agreements. See 902 KAR 20:360 § 10(5). To reach that end, it

disregards substantial evidence supporting the district court’s determination, as well as basic

common sense and logical reasoning.

More perilously, the majority altogether refuses to apply—let alone adhere to—the

Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt. Instead, it wrongly adopts

an analysis put forward in dicta by Chief Justice Roberts’ concurring opinion in June Medical

Services v. Russo, and then reaches a result directly opposing Chief Justice Roberts’. In doing

so, the majority completely undermines the principle driving that concurrence—stare decisis—

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 39

and ignores Supreme Court precedent dictating that lower courts should not find the Court to

have implicitly overruled prior precedent. See Agostini v. Felton, 521 U.S. 203, 237 (1997).

At the end of the day, no matter what standard this Court is bound to apply, the

majority’s decision today is terribly and tragically wrong. The majority directly contravenes

both the plurality and concurring opinions in June Medical Services, as well as the majority

opinion in Whole Woman’s Health. Correctly analyzed, the record and the law definitively

demonstrate that Kentucky’s transfer and transport agreement requirements impose an undue

burden under any possible analysis. And the consequences of today’s decision could not be

more dire. As a result of the majority’s deeply flawed analysis, millions of individuals will be

altogether deprived of abortion access.

BACKGROUND

At issue in this case is a Kentucky statute and regulation that together require abortion

facilities to enter into both a transfer agreement with a Kentucky-licensed acute-care hospital and

a transport agreement with a Kentucky-licensed ambulance service. See KRS § 216B.0435; 902

KAR 20:360 § 10. KRS § 216B.0435 has been in place since 1998, and states:

(1) Each abortion facility shall enter into a written agreement with a licensed acute-care

hospital capable of treating patients with unforeseen complications related to an

abortion facility procedure by which agreement the hospital agrees to accept and treat

these patients.

(2) If unforeseen complications arise prior to or during an abortion facility procedure, the

patient shall be transferred to the licensed acute-care hospital with which the abortion

facility has a written agreement as provided under subsection (1) of this section or the

hospital selected by the patient, if the patient so chooses.

(3) Each abortion facility shall enter into a written agreement with a licensed local

ambulance service for the transport of any emergency patient within the scope of

subsection (1) of this section to the licensed acute-care hospital.

(4) The written agreements of an abortion facility with an acute-care hospital and with a

local ambulance service shall be filed by the abortion facility with the [Cabinet for

Health and Family Services].

The regulation 902 KAR 20:360 § 10 was enacted in 1999 and, until 2017, nearly mirrored this

statute.

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 40

However, in 2017, the Commonwealth’s Cabinet for Health and Family Services

(“CHFS”) promulgated a new version of the regulation. CHFS is part of Kentucky’s executive

branch and is responsible for the administration and enforcement of Kentucky’s abortion facility

licensure requirements, in part through the Office of the Inspector General (“OIG”). The new

regulation required abortion facilities to enter into transfer and transport agreements with very

particular hospitals and ambulance services. Both must either be in the same county as the

abortion facility or within a certain number of miles or minutes’ drive—the hospital within

twenty minutes normal driving time, and the ambulance service within ten minutes or a five-mile

distance. 902 KAR 20:360 §§ 10(3)(a), (4)(a). Likewise, the new regulation established very

particular requirements for the transfer and transport agreements between abortion facilities and

those hospitals and ambulance services. The transfer and transport agreements must detail

numerous specified responsibilities of the abortion facility, hospital, and ambulance service and

must be signed by individuals who certify that they have the authority to execute such

agreements on the organization’s behalf. Id. §§ 10(3)(c)–(f), 10(4)(b)–(c).

If an abortion facility does not enter into both a transfer agreement and a transport

agreement in accordance with these provisions, it will lose its (or be unable to obtain a) license to

perform abortions in Kentucky. KRS § 216B.990. A facility may receive ninety-day extensions

of the time provided to comply with these provisions by submitting a written request to the OIG.

902 KAR 20:360 § 10(5). Such a request must certify under oath that the facility “has exhausted

all reasonable efforts to obtain a transfer or transport agreement for a continuous ninety (90)

calendar day period prior to the request” and must describe in detail “the efforts taken to secure

the agreements.” Id. § 10(5)(a). The Inspector General may grant or deny an extension based on

“all factors” he or she “deems relevant under the circumstances,” but must consider at least

whether the facility “made, and continues to make, a good faith effort to obtain a transfer or

transport agreement,” whether the facility “can provide the same level of patient care and safety

via alternative health services” during the extension period, and the regulatory compliance

history of the facility and any other facility “owned, in whole or in part, by the applicant or any

other individual or entity having an ownership interest with the facility.” Id. § 10(5)(b). The

Inspector General can rescind his or her grant of an extension “at any time” that he or she

determines the facility has not met or is not meeting these requirements. Id. § 10(5)(e).

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 41

Plaintiff EMW Women’s Surgical Center, P.S.C. (“EMW”) was—at the time of this

lawsuit’s initiation and the district court’s trial—Kentucky’s only licensed abortion facility. It

has been performing abortions at its facility in Louisville, Kentucky since the early 1980s, and

performs an average of 3,000 abortions per year, which historically has accounted for the

overwhelming majority of abortions performed in Kentucky. For instance, in 2016, the latest

year for which data was available at the time of trial, EMW performed 2,833 out of 2,848—or

99.47%—of abortions received by Kentuckians in the Commonwealth. Plaintiff Ernest

Marshall, M.D. is the owner of EMW.

Plaintiff Planned Parenthood of Indiana and Kentucky, Inc. (“Planned Parenthood”) is a

non-profit healthcare provider that has been providing healthcare services at its facility in

Louisville, Kentucky since 1933. In 2015, Planned Parenthood applied to become a licensed

abortion facility. Between December 2015 and January 2016, Planned Parenthood performed

twenty-three abortions at its facility, ostensibly as part of the license application process. Since

the district court issued its decision in this case, Planned Parenthood has been granted a license

to perform abortions in the Commonwealth and has begun doing so.

Prior to the events underlying this case, KRS § 216B.0435 had been in effect for

approximately nineteen years without issue. During that time, abortion facility transfer and

transport agreements were largely a formality and did not receive serious scrutiny from CHFS

during the license application process. Indeed, from the enactment of KRS § 216B.0435 until

2016, it appears that CHFS never found a single transfer or transport agreement to be deficient

for any reason. Accordingly, EMW maintained a transfer agreement with the University of

Louisville Hospital (“Louisville Hospital”) and a transport agreement with Mercy Ambulance

Services. And Planned Parenthood, as part of the license application process, entered into a

transfer agreement with Louisville Hospital and a transport agreement with Louisville Metro

Emergency Medical Services. Neither EMW nor Planned Parenthood had any difficulties

entering into or maintaining these agreements prior to 2016.

However, beginning in 2016, CHFS made an about-face and dramatically increased its

scrutiny of abortion facility transfer and transport agreements. For instance, CHFS asked

Planned Parenthood to revise its transfer agreement with Louisville Hospital so that it included

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 42

more specific language about the responsibilities of each party. CHFS also asked Planned

Parenthood to provide an extensive list of additional records in support of its transfer and

transport agreements, including a fire marshal certificate and certain personnel records. Planned

Parenthood complied.

Shortly thereafter, Louisville Hospital terminated its transfer agreement with Planned

Parenthood. Planned Parenthood then attempted to enter into transfer agreements with the other

hospitals in Louisville, but none agreed. Accordingly, Planned Parenthood instead entered into

transfer agreements with the University of Kentucky Hospital in Lexington, Kentucky and Clark

Memorial Hospital in Jeffersonville, Indiana. However, CHFS rejected both of these agreements

on the grounds that the University of Kentucky Hospital was seventy miles away from Planned

Parenthood, and that Clark Memorial Hospital, though only four miles away from Planned

Parenthood, was not a Kentucky-licensed hospital. At this point, CHFS was still operating under

the version of 902 KAR 20:360 § 10 that mirrored KRS § 216B.0435. Because of its inability to

enter into a satisfactory transfer agreement until after the district court’s permanent injunction of

KRS § 216B.0435 and 902 KAR 20:360 § 10, Planned Parenthood was unable to obtain a license

to perform abortions in Kentucky.

Similarly, in early 2017, CHFS informed EMW that its transfer agreement with

Louisville Hospital was deficient for several reasons. Specifically, CHFS informed EMW that

the agreement was not signed by an acceptable representative of Louisville Hospital, did not

correctly name Louisville Hospital as the transferee, and did not state with reasonable certainty

the responsibilities of each party in the event the agreement was employed. In an effort to

remedy these purported deficiencies, EMW obtained the signature of the President and CEO of

Louisville Hospital. However, he cancelled the transfer agreement on the same day, stating that

he was concerned he did not have the authority to sign the agreement. EMW attempted to enter

into transfer agreements with the other hospitals in Louisville, but none agreed. Although every

Louisville hospital that Planned Parenthood and EMW contacted refused to enter into a transfer

agreement with them, each confirmed that it would provide emergency medical care to any of

their abortion patients if they were transferred there. Nevertheless, because of its inability to

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 43

enter into a sufficient transfer agreement, EMW faces revocation of its license to perform

abortions in Kentucky.

Plaintiffs EMW and Dr. Marshall then filed this lawsuit against then-Secretary of CHFS

Vickie Yates Brown Glisson in her official capacity. Now-Acting Secretary of CHFS Eric

Friedlander has since been substituted for Glisson. Planned Parenthood later intervened in the

lawsuit, alleging claims against both the Secretary and then-Governor Matthew Bevin in their

official capacities. Current Governor Andrew Beshear has since been substituted for Bevin.

This Court also recently permitted Kentucky Attorney General Daniel Cameron to intervene as a

defendant in this suit.

Plaintiffs’ complaints both allege, among other claims, that Kentucky’s requirement that

abortion facilities enter into both a transfer agreement with a Kentucky-licensed acute-care

hospital and a transport agreement with a Kentucky-licensed ambulance service unduly burdens

individuals’ right to elect abortion, in violation of the Fourteenth Amendment to the United

States Constitution. Plaintiffs seek facial and as-applied injunctive relief.

The district court entered a temporary restraining order that enjoined the enforcement of

KRS § 216B.0435 and 902 KAR 20:360 § 10, which was later converted into a preliminary

injunction pending the outcome of the lawsuit. Months after the initiation of this lawsuit and the

entry of the preliminary injunction, and even longer after CHFS began heightening its scrutiny of

abortion facilities’ transfer and transport agreements, CHFS promulgated the version of

902 KAR 20:360 § 10 in place today. In particular, the newly amended regulation added the

ninety-day extension provision. The district court then conducted a bench trial, and on

September 28, 2018, converted its preliminary injunction into a permanent injunction,

concluding that the relevant law and regulation indeed imposes an undue burden on abortion

access, in violation of the Fourteenth Amendment.

This appeal followed.

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 44

DISCUSSION

The Supreme Court has twice considered—and twice found unconstitutional—laws

imposing burdens lesser than those presented in this case. See June Med. Servs., 140 S. Ct. at

2112–13 (plurality opinion); id. at 2134 (Roberts, C.J., concurring); Whole Woman’s Health,

136 S. Ct. at 2300. Although my colleagues make every effort to assert otherwise, under any

possible interpretation, that precedent requires us to affirm the district court’s decision in this

case.

Plaintiffs are “entitled to a permanent injunction if [they] can establish that [they]

suffered a constitutional violation and will suffer ‘continuing irreparable injury’ for which there

is no adequate remedy at law.”1 EMW Women’s Surgical Ctr. v. Friedlander, 960 F.3d 785, 793

(6th Cir. 2020) (quoting Women’s Med. Pro. Corp. v. Baird, 438 F.3d 595, 602 (6th Cir. 2005)).

In reviewing the district court’s decision to permanently enjoin KRS § 216B.0435 and 902 KAR

20:360 § 10, “we apply three standards of review. We review the scope of injunctive relief for

an abuse of discretion, the district court’s legal conclusions de novo, and the court’s factual

findings for clear error.” Id.

This Court has repeatedly emphasized that our role on review “is a narrow one.”

Am. Civil Liberties Union of Ohio v. Capitol Square Review & Advisory Bd., 243 F.3d 289, 309

(6th Cir. 2001) (en banc). “[A]s a lower federal court,” we must “apply all pertinent Supreme

Court precedent.” United States v. Lucido, 612 F.3d 871, 876 (6th Cir. 2010) (quoting Rosales-

Garcia v. Holland, 322 F.3d 386, 414 (6th Cir. 2003)). To the extent that we disagree with such

precedent, we must “leave the Supreme Court to overrule its own decisions.” Zagorski v. Mays,

907 F.3d 901, 905 (6th Cir. 2018).

Likewise, as an appellate court, we must “let district courts do what district courts do

best—make factual findings—and steel ourselves to respect what they find.” Taglieri v.

Monasky, 907 F.3d 404, 408 (6th Cir. 2018) (en banc). As Chief Justice Roberts himself

emphasized in his concurring opinion in June Medical Services, “[c]lear error review follows

1Both the majority opinion and this dissent agree that Plaintiffs unquestionably have standing to seek this

injunction. June Med. Servs., 140 S. Ct. at 2118–120 (plurality opinion); id. at 2139 n.4 (Roberts, C.J., concurring).

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 45

from a candid appraisal of the comparative advantages of trial courts and appellate courts.

‘While we review transcripts for a living, they listen to witnesses for a living. While we largely

read briefs for a living, they largely assess the credibility of parties and witnesses for a living.’”

140 S. Ct. at 2141 (Roberts, C.J., concurring) (quoting Taglieri, 907 F.3d at 408). Thus, we

“will not disturb the factual conclusions of the trial court unless we are ‘left with the definite and

firm conviction that a mistake has been committed,’” id. (quoting United States v. U.S. Gypsum

Co., 333 U.S. 364, 395 (1948)), or more evocatively, those findings “strike us as wrong with the

force of a five-week-old, unrefrigerated dead fish,” Taglieri, 907 F.3d at 409 (quoting United

States v. Perry, 908 F.2d 56, 58 (6th Cir. 1990)). “Where there are two permissible views of the

evidence, the [district court’s] choice between them cannot be clearly erroneous.” Anderson v.

City of Bessemer City, 470 U.S. 564, 574 (1985).

Today, the majority usurps the district court’s duly defined role and casts aside our

standard of review. When properly undertaken, a review of the district court’s decision leads to

the unavoidable conclusion that we must affirm.

I.

This case turns entirely on whether Plaintiffs suffered a constitutional violation—that is,

on whether KRS § 216B.0435 and 902 KAR 20:360 § 10 constitute an undue burden on abortion

access, in violation of the Fourteenth Amendment to the United States Constitution. For nearly

fifty years, this nation’s courts have recognized individuals’ fundamental right to choose to have

an abortion before fetal viability. Roe v. Wade, 410 U.S. 113, 153–54 (1973). We have also

recognized that “[u]nnecessary health regulations that have the purpose or effect of presenting a

substantial obstacle to a woman seeking an abortion impose an undue burden on [that] right.”

Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 878 (1993) (plurality opinion).

As explained in Whole Woman’s Health and reaffirmed by a plurality of the Court in

June Medical Services, in deciding whether a law or regulation presents a substantial obstacle,

courts must “consider the burdens a law imposes on abortion access together with the benefits

those laws confer.” Whole Woman’s Health, 136 S. Ct. at 2309; accord June Med. Servs., 140 S.

Ct. at 2120 (plurality opinion). However, as detailed in Chief Justice Roberts’ concurring

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 46

opinion in June Medical Services, he understands the relevant test somewhat differently. 140 S.

Ct. at 2135, 2138 (Roberts, C.J., concurring). Under his analysis, a law must first be

“‘reasonably related’ to a legitimate state interest.” Id. at 2135 (quoting Casey, 505 U.S. at 878).

A court may consider a law’s benefits in deciding if it meets this “threshold requirement.” Id. at

2138. If it does, a court must also consider whether the law creates a substantial obstacle to

abortion access. Id. Laws that create such an obstacle, regardless of their threshold relationship

to a state’s interest, impose an undue burden on abortion access in violation of the Fourteenth

Amendment. Id.

Today, the majority casts aside Whole Woman’s Health in favor of Chief Justice Roberts’

concurring opinion in June Medical Services, invoking Marks v. United States, 430 U.S. 188

(1997), to reach this desired end.2 But its analysis is deeply flawed and its rejection of Whole

Woman’s Health cannot be justified. In Marks, the Supreme Court explained that “[w]hen 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 judgment on the narrowest grounds.’” Id. at 193 (quoting Gregg v.

Georgia, 428 U.S. 153, 169 n.15 (1976)). We have interpreted this to mean that “this court 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).

The majority today concludes that “the narrowest line of reasoning” supporting the June

Medical Services decision is the entirety of Chief Justice Roberts’ concurring opinion, including

all dicta.3 This is wrong, and stands in clear violation of the principle of stare decisis and the

2Itis worth noting that the majority’s analysis in this regard is not only incorrect, but is also apparently

unnecessary to its preordained result. The majority (wrongly) concludes that Plaintiffs have not shown that

Kentucky’s transfer and transport agreement requirement would cause them to be unable to provide abortions. If

this was true, the requirement would not impose either a burden or an obstacle, and therefore would equally fail

under the Whole Woman’s Health balancing test.

Moreover, beyond a brief Rule 28(j) letter, neither party has had the opportunity to present arguments as to

what standard is appropriate for this Court to employ post-June Medical Services. This makes it especially unwise

for this Court to forge this new ground.

3Although not necessary to a resolution of this case because the parts of Chief Justice Roberts’ concurrence

relied on by the majority are dicta, I also dispute whether the Chief Justice’s concurrence is the narrowest opinion in

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 47

Supreme Court’s admonitions that lower courts should not conclude that it has implicitly

overruled its prior precedent. Chief Justice Roberts’ concurring opinion does not free this Court

from its duty to apply the binding precedent of Whole Woman’s Health. Indeed, Chief Justice

Roberts emphasized from the start that he was not considering the validity of Whole Woman’s

Health; the question before the Court, he said, “[was] 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

(Roberts, C.J., concurring). He answered that question in the affirmative. Id. at 2133–34. The

basis for his concurrence, then—as he clearly and repeatedly stated—was his respect for the

decision in Whole Woman’s Health under the principle of stare decisis. Id. “The legal doctrine

of stare decisis requires us . . . to treat like cases alike.” Id. at 2134. “This principle,” he

emphasized, “is grounded in a basic humility that recognizes today’s legal issues are often not so

different from the questions of yesterday and that we are not the first ones to try to answer

them.” Id.

To be sure, Chief Justice Roberts’ concurrence in June Medical Services critiques Whole

Woman’s Health.4 But that critique is dicta, as it was not necessary to his vote to concur. See

Wright v. Spaulding, 939 F.3d 695, 701 (6th Cir. 2019). The narrowest reasoning supporting the

judgment in June Medical Services is therefore simply and only that Whole Woman’s Health and

stare decisis required the Court to hold that Louisiana’s law requiring abortion providers to

obtain admitting privileges was as unconstitutional as Texas’, where the district court did not

June Medical Services. The majority opinion is based on the premise that Chief Justice Roberts’ concurrence is a

“logical subset” of the plurality opinion. United States v. Kratt, 579 F.3d 558, 562 (6th Cir. 2009) (quoting King v.

Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc)). However, we have also held that the “‘narrowest’ opinion

refers to the one which relies on the ‘least’ doctrinally ‘far-reaching-common ground’ among the Justices in the

majority: it is the concurring opinion that offers the least change to the law.” United States v. Cundiff, 555 F.3d 200,

209 (6th Cir. 2009) (quoting Johnson v. Bd. of Regents of the Univ. of Ga., 263 F.3d 1234, 1247 (11th Cir. 2001);

United States v. Johnson, 467 F.3d 56, 63 (1st Cir. 2006)). The plurality opinion merely applied the law from Whole

Woman’s Health while Chief Justice Roberts’ concurrence, according to the majority, limited Whole Woman’s

Health. Therefore, under this conception of the Marks test, the plurality offers the least change in the law and is

controlling.

4To the extent that the Chief Justice concluded that Whole Woman’s Health itself did not require a

balancing test, his conclusion is contradicted by the clear language of that case, Whole Woman’s Health, 136 S. Ct.

at 2309, as well as by his fellow justices in June Medical Services, 140 S. Ct. at 2154 (Alito, J., dissenting) (stating

that “the plurality adheres to the balancing test adopted in Whole Woman’s Health”); id. at 2181 (Gorsuch, J.,

dissenting) (“At no point [in Whole Woman’s Health] did the Court hold that the burdens imposed by the Texas law

alone—divorced from any consideration of the law’s benefits—could suffice to establish a substantial obstacle.”).

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 48

clearly err in finding that the law imposed equivalent burdens. There is no basis in this Court or

the Supreme Court’s precedent for treating a single Justice’s commentary on a prior decision in

dicta as an overruling of an opinion duly issued by a majority of the Supreme Court.

The majority, however, asserts that, under Marks, dicta and holding cannot be separated

and “the narrowest concurring opinion” in its entirety “is the Court’s opinion.” Ante at 20

(quoting J.L. Spoons, Inc. v. Dragani, 538 F.3d 379, 386 n.2 (6th Cir. 2008)). In its haste to

eviscerate the constitutional right to an abortion, the majority adopts an understanding of the

Marks rule that would lead to absurd results. In a Supreme Court case with a 4–4 split, no

precedent would be safe from the tiebreaking Justice deciding to seize the opportunity to rewrite

the law even if the other eight Justices disagreed. See Ramos v. Louisiana, 140 S. Ct. 1390, 1403

(2020) (plurality opinion).

For example, suppose the Supreme Court heard a case raising the issue of whether the

Third Amendment’s protection against quartering of soldiers is incorporated against the states.

See McDonald v. City of Chicago, Ill., 561 U.S. 742, 765 n.13 (2010) (explaining that the Third

Amendment has not yet been incorporated against the states). In this hypothetical case, four

Justices agree that the Third Amendment is incorporated by the Due Process Clause of the

Fourteenth Amendment and conclude that the petitioner is entitled to relief. Cf. Timbs v.

Indiana, 139 S. Ct. 682, 687 (2019). Another four Justices agree that the Due Process Clause is

the proper vehicle for incorporation but believe that the Third Amendment should not be

incorporated. Cf. Apodaca v. Oregon, 406 U.S. 404, 410 (plurality opinion). The tiebreaking

Justice authors an opinion stating that: (1) the Due Process Clause is the wrong vehicle for

incorporating fundamental rights against the states; (2) the Privileges or Immunities Clause is the

appropriate vehicle for incorporation, cf. Timbs, 139 S. Ct. at 691 (Thomas, J., concurring);

(3) the Privileges or Immunities Clause includes a “dual-track” incorporation approach under

which provisions of the Bill of Rights can provide less protection when invoked against a state

government than when invoked against the federal government; and (4) the Third Amendment is

incorporated against the states and, based on the specific circumstances of her Third Amendment

claim, the petitioner is entitled to relief, cf. Johnson v. Louisiana, 406 U.S. 366, 375 (1972)

(Powell, J., concurring).

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In this hypothetical, the tiebreaking Justice’s opinion is most likely the narrowest; a dual-

track theory of incorporation would accept fewer Third Amendment challenges to state action

than a regime where rights apply with equal force against federal and state governments.5 See

Marks, 430 U.S. at 193–94 (explaining that Justice Brennan’s opinion, which provided the least

First Amendment protections, was the narrowest); see also ante at 15. The result, according to

the majority’s reasoning, is that decades of precedent dictating that fundamental rights are

incorporated against the states via the Due Process Clause and rejecting the idea of dual-track

incorporation would be overturned. See Ramos, 140 S. Ct. at 1397 (citing Duncan v. Louisiana,

391 U.S. 145, 148–150 (1968); Malloy v. Hogan, 378 U.S. 1, 10–11 (1964)).

Fortunately, the Marks rule does not beget such absurd results for the simple reason that

it is only the holding from the narrowest opinion, and only the narrowest reasoning supporting

that holding, that is controlling—i.e., that the Third Amendment is incorporated and provides

protection in the specific circumstances addressed. Thus, in United States v. Santos, a case about

the definition of the term “proceeds” in the federal money laundering statute, Justice Scalia,

writing for a four Justice plurality, explained that because Justice Stevens’ “opinion rests upon

the narrower ground, the Court’s holding is limited accordingly.” 553 U.S. 507, 523 (2008)

(citing Marks, 430 U.S. at 193). Justice Scalia, however, also explained that the controlling

effect of Justice Stevens’ opinion was limited to the “narrowness of his ground.” Id. The

“speculations” in the remainder of Justice Stevens’ concurrence, according to Justice Scalia, “are

the purest of dicta, and form no part of today’s holding.”6 Id. According to the position taken by

the majority, however, had Justice Stevens’ speculations included his then-recently announced

belief that the death penalty was unconstitutional, see Baze v. Rees, 553 U.S. 35, 86 (2008)

(Stevens, J., concurring), his position on the death penalty would have been “entitled to as much

5To be sure, in this hypothetical, the plurality can be considered the “narrowest opinion” because, arguably,

“it is the concurring opinion that offers the least change to the law” as it does not topple decades of precedent.

Cundiff, 555 F.3d at 209. But under this conception of “narrowest opinion,” Chief Justice Roberts’ concurrence in

June Medical Services cannot be considered the narrowest opinion because the plurality leaves in place the

precedent set by Whole Woman’s Health.

6Significantly, while Justice Stevens disagreed with Justice Scalia’s interpretation of his concurrence, he

did not assert, as the majority claims, that his opinion, dicta and all, was the Court’s opinion. See id. at 528 n.7

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authority and respect as any other opinion of the Supreme Court,” ante at 20. This, clearly, is an

incorrect understanding of the Marks rule.

Moreover, the majority’s reliance on our decision in Grutter v. Bollinger is misplaced. In

Grutter, we held that Michigan Law School’s admissions policy passed constitutional muster

based on Justice Powell’s discussion of the Harvard admissions plan in his concurring opinion in

Regents of the University of California v. Bakke, 438 U.S. 265 (1978). See Grutter, 288 F.3d at

745–46. Because we held that it was appropriate to rely on Justice Powell’s endorsement of the

Harvard plan, “[e]ven if this portion of Justice Powell’s opinion could be labeled dicta,” the

majority argues that we are bound by dicta under the Marks rule. Id. at 746 n.9. However, the

majority omits a key distinction: in Grutter, we held that “Justice Powell’s endorsement of the

Harvard plan carries considerable persuasive authority” because Bakke was the only Supreme

Court case to have addressed the relevant issue. Id. (emphasis added). Thus, we explained that

Justice Powell’s opinion “provide[d] a more appropriate basis for our opinion than any test we

might fashion.” Id.

Grutter, therefore, merely stands for the unremarkable proposition that, in the absence of

controlling Supreme Court precedent, we may decide to adopt persuasive dicta from a Justice’s

concurrence.7 In Whole Woman’s Health, however, a majority opinion of the Supreme Court

provided the controlling test for determining whether a state law constitutes an undue burden on

abortion access. Thus, unlike in Grutter, there is no occasion for us to rely on Chief Justice

Roberts’ dicta in his June Medical Services concurrence as persuasive authority.8

7Moreover, the Supreme Court declined to endorse our Marks determination in Grutter and instead held

that “[w]e do not find it necessary to decide whether Justice Powell’s opinion is binding under Marks. It does not

seem ‘useful to pursue the Marks inquiry to the utmost logical possibility when it has so obviously baffled and

divided the lower courts that have considered it.”’ Grutter v. Bollinger, 539 U.S. 306, 325 (2003) (quoting Nichols v.

United States, 511 U.S. 738, 745–746 (1994)).

8The majority’s reliance on Marks’ holding that “[t]he view of the Memoirs plurality . . . constituted the

holding of the Court and provided the governing standards” to support its position is also unavailing. Marks, 430

U.S. at 193 (citing Memoirs v. Massachusetts, 383 U.S. 413 (1966)). In Memoirs, the three Justice plurality set forth

a test for determining whether obscenity was protected by the First Amendment. See id. at 418. The plurality then

explained that the “judgment [of the lower court] must be reversed” because “the court misinterpreted” the test. Id.

at 419–420. Therefore, the governing standard articulated by the plurality in Memoirs was part of the holding

because it was “necessary to the judgment,” see Wright, 939 F.3d at 701—the plurality only determined that the

court below erred because its holding was “founded on an erroneous interpretation” of that standard. Memoirs,

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In fact, just this term, a plurality of the Supreme Court—including one of the dissenting justices

in June Medical Services—rejected the notion that a single justice could by him or herself

overturn prior precedent. Ramos, 140 S. Ct. at 1402. That plurality cautioned against

“embrac[ing] a new and dubious proposition: that a single Justice writing only for himself has

the authority to bind this Court to propositions it has already rejected.” Id. “This is not the rule,”

the Court explained, “and for good reason—it would do more to destabilize than honor

precedent.” Id.

Applying Chief Justice Roberts’ opinion in such a manner is especially egregious, given

that the Chief Justice himself disavowed the notion that he was making any decision as to the

continued validity of Whole Woman’s Health. June Med. Servs., 140 S. Ct. at 2133 (Roberts,

C.J., concurring); see also Whole Woman’s Health v. Paxton, 972 F.3d 649, 652 (5th Cir. 2020)

(per curiam) (holding that June Medical Services “has not disturbed the undue-burden test, and

[Whole Woman’s Health] remains binding law. . . .”). The majority’s interpretation thus also

flouts the Supreme Court’s admonitions that lower courts should not interpret a Supreme Court

opinion as implicitly overturning its prior precedent.9 See, e.g., Agostini, 521 U.S. at 237. This

Court should not “readily . . . anticipate the overruling of [the Supreme Court’s] prior holdings.”

Romo v. Largen, 723 F.3d 670, 675 (6th Cir. 2013). That is, “[i]n the words of Learned Hand, it

is not ‘desirable for a lower court to embrace the exhilarating opportunity of anticipating a

doctrine which may be in the womb of time, but whose birth is distant.’”10 Id. (quoting Specter

383 U.S. at 420. By contrast, in June Medical Services, Chief Justice Roberts “decide[d]” whether the Louisiana

law at issue was unconstitutional based only on stare decisis and the factual similarities to Whole Woman’s Health;

thus, his personal opinion about the consistency between Casey and Whole Woman’s Health was merely dicta and is

not controlling under Marks. Wright, 939 F.3d at 701–02.

9Justice Kavanaugh’s suggestion that “five Members of the Court reject[ed] the Whole Woman’s Health

cost-benefit standard” in June Medical Services, 140 S. Ct. at 2182 (Kavanaugh, J., dissenting), and indeed the

dissenting opinions as a whole, do not matter in this analysis. As we have explained, “Marks instructs lower courts

to . . . ignore dissents.” Bormuth v. County of Jackson, 870 F.3d 494, 515 (6th Cir. 2017) (en banc) (quoting

Cundiff, 555 F.3d at 208). And the Supreme Court itself has clarified that even “[t]he views of five Justices that [a]

case should be reconsidered or overruled cannot be said to have effected a change” in its jurisprudence where the

question of whether a case should be overruled “was not before [it].” Agostini, 521 U.S. at 217.

10The majority contends that the plurality opinion in Casey, which limited Roe, demonstrates that a

controlling concurrence under Marks can reinterpret earlier Supreme Court precedent. However, in Casey, the three

Justice plurality explicitly explained that they were reinterpreting Roe and that their holding was based on their

reinterpretation of the undue burden standard. See Casey, 505 U.S. at 878–79 (“These principles control our

assessment of the Pennsylvania statute . . .”). Treating the Casey plurality’s reinterpretation of the undue burden

No. 18-6161 EMW Women’s Surgical Center, et al. v. Friedlander, et al. Page 52

Motor Serv. v. Walsh, 139 F.2d 809, 823 (2d Cir. 1943) (Hand, J., dissenting), vacated sub nom.

Specter Motor Serv. v. McLaughlin, 323 U.S. 101 (1944)).

Thus, absent an express holding overruling Whole Woman’s Health, our obligation is to

continue to apply its balancing test, and the majority wrongly concludes otherwise. However,

with all this said, even if the Chief Justice’s dicta criticizing Whole Woman’s Health controls, a

correct application of the test he enunciated also demonstrates that this Court should affirm.

Thus, I will apply both tests, starting with the binding Whole Woman’s Health standard.

II.

Whole Woman’s Health requires this Court to determine whether an abortion restriction

constitutes an undue burden by “consider[ing] the burdens a law imposes on abortion access

together with the benefits those laws confer.” 136 S. Ct. at 2309; accord June Med. Servs.,

140 S. Ct. at 2120 (plurality opinion). I begin, then, with the burdens imposed by Kentucky’s

requirement, as identified by the district court.

A. Burdens

The district court found that KRS § 216B.0435 and 902 KAR 20:360 § 10 “create[] an

impediment to the availability of abortions by virtually assuring that abortion facilities will not

operate in Kentucky.” EMW Women’s Surgical Ctr. v. Glisson, No. 17-189, 2018 WL 6444391,

at *19 (W.D. Ky. Sept. 28, 2018). Specifically, the court found that EMW and Planned

Parenthood cannot enter into transfer or transport agreements that would satisfy Kentucky’s

requirement, and therefore would be unable to maintain licenses to perform abortions in the

Commonwealth. Id. If EMW and Planned Parenthood are unable to perform abortions, the court

further concluded, this would effectively eliminate abortion in Kentucky, thus unduly burdening

standard as controlling, therefore, is correct under Marks. In June Medical Services, however, Chief Justice Roberts’

concurrence stated that he was not deciding “whether Whole Woman’s Health was right or wrong” and, as explained

above, his opinion about the holding of Whole Woman’s Health was dictum. 140 S. Ct. at 2133. Moreover, unlike

the opinion of the four Justice plurality in June Medical Services, in Casey, the two concurrences that combined

with the plurality to form a majority of the Court recognized the plurality opinion as the opinion of the Court. See

Casey, 505 U.S. at 912–13 (Stevens, J., concurring) (“I also accept what is implicit in the Court’s analysis . . .); id. at

922–23 (Blackmun, J., concurring) (“I do not underestimate the significance of today’s joint opinion.”). Therefore,

Casey does not support the majority’s conclusion that the dicta in the Chief Justice’s concurrence in June Medical

Services implicitly overruled Whole Woman’s Health.

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individuals’ right to access an abortion. Id. Each of the district court’s findings is well-

supported by the judicial record. Thus, each is a permissible view of the evidence, and none is

clearly erroneous. Anderson, 470 U.S. at 574. Those findings demonstrate that KRS

§ 216B.0435 and 902 KAR 20:360 § 10 impose weighty burdens on the right to abortion

access—indeed, burdens far weightier than even those imposed by the laws at issue in Whole

Woman’s Health and June Medical Services. I address each finding in turn.

First, as the majority acknowledges, Defendants do not dispute that EMW and Planned

Parenthood cannot enter into transfer or transport agreements that would satisfy KRS

§ 216B.0435 and 902 KAR 20:360 § 10. The record clearly supports this finding. EMW

attempted to enter into transfer agreements with Louisville hospitals, but none agreed. Planned

Parenthood made similar efforts, to no avail.

Though they effectively concede this point, Defendants contest the district court’s

resulting conclusion that EMW and Planned Parenthood will be unable to offer abortions in

Kentucky without compliant transfer and transport agreements. They say that Plaintiffs have not

shown that the lack of such agreements would prevent them from offering abortions because

Plaintiffs could continually and indefinitely apply for ninety-day extensions of the time required

to comply with Kentucky’s transfer and transport agreement requirement, pursuant to 902 KAR

20:360 § 10(5).11 According to Defendants, EMW and Planned Parenthood’s failure to apply for

an extension under this provision severs the chain of causation linking KRS § 216B.0435 and

902 KAR 20:360 § 10 with their inability to perform abortions in Kentucky.

Defendants’ argument is farcical, at best. For starters, a good-faith effort does not require

exhausting every possible avenue for relief. See, e.g., June Med. Servs., 140 S. Ct. at 2122–23

(plurality opinion) (explaining that “some providers could have chosen in good faith not to apply

to every qualifying hospital for admitting privileges”). Nor does “[g]ood faith . . . require an

exercise in futility.” Id. at 2128; accord Safeco Ins. Co. of Am. v. City of White House, 36 F.3d

540, 548 (6th Cir. 1994). A ninety-day extension from the Inspector General has never in fact

11It is worth noting at the outset that Defendants’ argument in this regard is inconsistent with their

contentions regarding the benefits of KRS § 216B.0435 and 902 KAR 20:360 § 10—namely, that transfer and

transport agreements are necessary in order to “optimize[] patient safety.” (See Defs.’ Br. at 32.)

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been an available avenue for relief in this case. The extension provision Defendants point to was

added to 902 KAR 20:360 § 10 in June 2017, three months after the initiation of this case. And

by that time, the district court had already enjoined the enforcement of both KRS § 216B.0435

and 902 KAR 20:360 § 10. Accordingly, the extension provision has never taken effect, and it

has at all times been impossible for the Inspector General to grant EMW, Planned Parenthood, or

any abortion facility a ninety-day extension pursuant to 902 KAR 20:360 § 10(5). Thus,

Defendants’ causation argument is unpersuasive.

But setting that aside, the district court appropriately rejected Defendants’ extension

argument for an altogether different reason. It concluded that even if EMW and Planned

Parenthood could secure an extension for some period of time, “the uncertainty of a discretionary

waiver would make it exceedingly difficult for an abortion facility to survive” because it would

“not likely be able to hire and keep staff without knowing whether [it] could continue operating

beyond ninety days” and because it would not be able to secure necessary investments as “no

prudent organization would risk millions of dollars investing in such a facility whose temporary

license would be based on the administrative whim of the Inspector General.” EMW v. Glisson,

2018 WL 6444391, at *19. This finding was not clearly erroneous, as the evidence plausibly

suggests that EMW and Planned Parenthood would be forced to stop providing abortions if they

were compelled to operate on the basis of ninety-day extensions.

First, the owner of EMW, Dr. Marshall, testified that it would be impossible for EMW to

continue to operate on ninety-day extensions because there would be “no security” in such a

situation. (Trial Tr., R. 112 at PageID #4121.) He explained that EMW “wouldn’t be able to

hire any staff” without being able to offer more prolonged job security. (Id.) Altogether, he

said, “the ramifications” of such a situation would be burdensome. (Id. at #4122.) Likewise,

Kimberly Greene, the Chair of Planned Parenthood’s Board of Directors, added that it would

also be “very difficult” for Planned Parenthood to operate on indefinite ninety-day extensions,

noting that it could not have raised adequate funds for its current facility without a more

prolonged guarantee of operation. (Trial Tr., R. 116 at PageID #4321.) She further explained

that it would not even be “responsible of us as a board to even try to [raise money]” if Planned

Parenthood could only operate on ninety-day extensions. (Id. at #4304.)

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Casting aside this evidence, the majority concludes that the district court’s finding was

clearly erroneous. It does so only by distorting the mandatory clear error standard of review and

subjecting the evidence to something more stringent than even de novo review. The majority

stretches the district court’s words, denies the court’s ability to make even the most reasonable of

inferences, distorts witness testimony, and altogether rejects the preponderance of the evidence

standard. The law is clear that this Court may not overturn a district court’s plausible

interpretation of the evidence, even if it is “convinced that had it been sitting as the trier of fact,

it would have weighed the evidence differently.” Anderson, 470 U.S. at 574. Today, the

majority nonetheless “take[s] it upon [itself] to weigh the trial evidence as if [it] were the first to

hear it,” thus vastly overstepping the bounds of this Court’s role. Cooper v. Harris, 137 S. Ct.

1455, 1478 (2017).

Despite the ample evidence presented by Plaintiffs and credited by the district court, the

majority points to no contrary evidence suggesting that Plaintiffs could indeed continue to

operate on continuous, indefinite ninety-day extensions. They cannot, because Defendants have

apparently presented none and thus cannot claim that the preponderance of the evidence did not

support Plaintiffs’ contention. Instead, all the majority can do to achieve its desired end is

attempt to undermine the evidence presented by the Plaintiffs and relied upon by the district

court. After scouring that evidence thoroughly, it comes up with only a few weak and legally

unprecedented rationalizations for rejecting it. First, the majority suggests that Dr. Marshall’s

trial testimony was unreliable because it partially conflicted with his deposition testimony. But

this analysis is a perfect example of the sort of review this Court is not permitted to undertake.

As Judge Larsen herself has recognized, “‘[our] function is not to decide factual issues de novo.’

Instead, we owe great deference to the trial court’s factual determinations, particularly when they

rest on its assessment of the credibility of witnesses.” Slusher v. U.S. Postal Serv., 731 F. App’x

478, 481 (6th Cir. 2018) (quoting Anderson, 470 U.S. at 573); accord Cooper, 137 S. Ct. at 1474

(explaining that appellate courts must “give singular deference to a trial court’s judgments about

the credibility of witnesses”).

The majority next places unjustifiable weight on Dr. Marshall’s use of the word “whim”

in order to conclude that his testimony “establishes only that EMW would be unable to retain

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staff if the Inspector General’s decision on whether to grant a waiver were arbitrary.” Ante at 31.

This blatantly and impermissibly reinterprets Dr. Marshall’s testimony as if the majority were

“the first to hear it.” Cooper, 137 S. Ct. at 1478. Dr. Marshall explained:

Well, I think the problem [with relying on the extension provision] is that your

license is at stake every 90 days, so you’re at the whim of being closed every 90

days. There’s no security that you can even—you can’t offer a person a job and

say, “Well, I have you a job for 90 days, but I don’t know if I’m going to have

you a job past that.” We wouldn’t be able to hire any staff.

(Trial Tr., R. 112 at PageID #4121.) Read reasonably, Dr. Marshall’s testimony suggests simply

that an abortion facility would be unable to hire and retain staff when the facility’s continued

existence is in question every ninety days—no matter whose determinations that existence

depends upon or how that person may undertake that decision. Indeed, Dr. Marshall never once

references the Inspector General. Nor does he suggest that the Inspector General’s decision

would be arbitrary. The issue with relying on the extension provision is, simply and

fundamentally, that it causes insecurity.

The majority also resorts to implicitly treating Justice Alito’s dissenting opinion in June

Medical Services, rejected by both the plurality and the Chief Justice, as binding. According to

the majority, “Dr. Marshall’s subjective belief,” based on his decades of experience in the field,

that EMW’s physicians and staff would resign and that he would be unable to hire replacements,

was an insufficient basis for the district court to conclude that a good faith attempt to operate

based on applying for a waiver every ninety day would be futile. Ante at 32. The majority

provides a list of questions that, had it been the triers of fact, it would have asked Dr. Marshall,

and states that we cannot determine whether Dr. Marshall’s subjective belief was reasonable

because “[w]e have no way of knowing the answers to these questions from Dr. Marshall’s

testimony.” Ante at 32 & n.18.

In June Medical Services, the Supreme Court reviewed the Fifth Circuit’s holding that the

district court’s finding that the challenged Louisiana law would cause an undue burden was

“clearly erroneous” because “there was clear evidence in the record before the district court that

various doctors failed to seek admitting privileges in good faith.” June Med. Servs. L.L.C. v.

Gee, 905 F.3d 787, 811 (5th Cir. 2018). The Supreme Court reversed. According to the

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plurality, which the majority concedes was endorsed by Chief Justice Roberts,12 “[t]he problem”

with the Fifth Circuit’s approach was “that the law requires appellate courts to review a trial

court’s findings under the deferential clear-error standard.” June Medical Servs., 140 S. Ct. at

2124 (plurality opinion). It is worth reiterating for the majority’s benefit that, under this

standard, “a district court’s findings of fact, ‘whether based on oral or other evidence, must not

be set aside unless clear

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