“When considering [whether a] statute [that regulates abortion] is unconstitutional on its face, we must analyze the factual record to determine whether the challenged regulation in a large fraction of the cases in which it is relevant, will operate as a substantial obstacle to a woman’s choice to undergo an abortion” (citing Casey, 505 U.S. at 895, 112 S.Ct. 2791) (emphasis added)
How later courts described this case
- “When considering [whether a] statute [that regulates abortion] is unconstitutional on its face, we must analyze the factual record to determine whether the challenged regulation in a large fraction of the cases in which it is relevant, will operate as a substantial obstacle to a woman’s choice to undergo an abortion” (citing Casey, 505 U.S. at 895, 112 S.Ct. 2791) (emphasis added)
- “When a rule of court conflicts with a legislative act, the general rule is that the act controls.”
- Tennessee law requiring parental notification
Written by the judges who cited it.
The opinion
DAVID A. NELSON, Circuit Judge,
concurring.
Judge Norris’ temperate and dispassionate analysis of the question whether Tennessee’s Parental Consent for Abortion by Minors Act is likely to fail the “undue burden test” seems sound to me; I fully concur in his opinion. My purpose in writing separately is simply to offer a brief response to our dissenting colleague’s charge that my concurrence flies in the face of what I wrote earlier in Mascio v. Public Employees Retirement Sys. of Ohio, 160 F.3d 310 (6th Cir.1998), with respect to the “abuse of discretion” standard that governs our review of preliminary injunctions.
At issue in Mascio was an Ohio statute that mandated a forfeiture of vested retirement benefits' — benefits that the plaintiff had a clear contractual right to receive. The Constitution of the United States expressly prohibits any state from passing such legislation: “No state,” the Constitution declares, “shall ... pass any ... Law impairing the Obligation of Contracts.... ” U.S. Const, art. I, § 10, cl. 1. In my view, therefore, the normal presumption of constitutionality did not apply to the Ohio statute being challenged in Mascio .
The district court granted a preliminary injunction in that case largely on the strength of the plaintiffs “strong likelihood of success on the merits.... ” Id. at 313 . Given the clear language of the Constitution, “strong likelihood of success” appeared to me to be something of an understatement — and the ultimate outcome of the case being a forgone conclusion, as I saw it, it seemed obvious to me that the district court had not abused its discretion in preliminarily enjoining enforcement of the Ohio statute.
It was against this background that the opinion I wrote for the court in Mascio cited earlier case law suggesting that a preliminary injunction “will seldom be disturbed unless the district court ... [among other alternatives] improperly applied the governing law....” Id. at 312 . And it was against this background that I quoted the observation of another panel that “[t]his court ‘will reverse a district court’s weighing and balancing of the equities only in the rarest of circumstances.’ ” Id. at 313 , quoting Moltan Co. v. Eagle-Picher Indus., Inc., 55 F.3d 1171 , 1175 (6th Cir.1995).
Nothing in Mascio requires us to affirm the preliminary injunction in the case at bar. Here — as was not true in Mascio— we are dealing with a state statute that is entitled to the usual presumption of constitutionality. Here — as was not true in Mascio — there is nothing in the language of the Constitution that purports to prohibit states from passing legislation of the sort being challenged. Here — as was not true in Mascio — it is my best judgment (a judgment, I submit, in which I am • not required to defer to the district court) that there is no strong likelihood of the plaintiff ultimately succeeding on the merits. And here — as was not true in Mascio — I believe that the district court improperly applied the governing law, that law being, in this case, the “undue burden test.”
Judges can and do differ, not surprisingly, as to when a burden becomes constitutionally “undue.” But the question, I believe, is ultimately one of constitutional law — and the notion that, under Mascio , the district court’s “weighing and balancing of the equities” somehow diminishes *468 my responsibility, as a member of this court, for making a judgment as to how the constitutional question will be resolved is a notion that strikes me as profoundly misguided.