Amicus Curiae Brief — Kristina Box, Commissioner, Indiana Department of Health, et al., Petitioners v. Planned Parenthood of Indiana and Kentucky, Inc.

NO. 20-1375

IN THE

Supreme Court of the United States

KRISTINA BOX, COMMISSIONER, INDIANA STATE

DEPARTMENT OF HEALTH, ET AL.,

Petitioners,

v.

PLANNED PARENTHOOD OF INDIANA AND KENTUCKY,

INC.,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF OF SUSAN B. ANTHONY LIST AS

AMICUS CURIAE IN SUPPORT OF

PETITIONERS

KRISTEN K. WAGGONER

JOHN J. BURSCH

Counsel of Record

DAVID A. CORTMAN

CODY BARNETT

ALLIANCE DEFENDING FREEDOM

440 First Street, NW, Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@ADFlegal.org

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... ii

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF THE ARGUMENT ........................... 2

ARGUMENT .............................................................. 6

I.

There is an intractable circuit split over

Marks and how to determine which Justice

“concurred in the judgments on the

narrowest grounds.” ............................................ 6

A. The lower courts have developed at

least three frameworks to determine

what

opinion

constitutes

the

“narrowest grounds.” ..................................... 8

B. Even courts that have adopted the

same framework differ substantially on

how to apply that framework...................... 10

II. There is an intractable circuit split over

what opinion from June Medical

constitutes the “narrowest grounds.” ................ 15

A. The lower courts have split over how to

apply the Chief Justice’s concurring

opinion. ........................................................ 16

B. This Court should confirm that the

Chief Justice’s concurrence sets the

standard for analyzing the validity of

pro-life protections. ..................................... 19

CONCLUSION ......................................................... 24

ii

TABLE OF AUTHORITIES

Cases

Adams & Boyle, P.C. v. Slatery,

494 F. Supp. 3d 488, 2020 WL 6063778 (M.D.

Tenn. 2020) .......................................................... 19

American College of Obstetricians & Gynecologists

v. FDA,

472 F. Supp. 3d 183 (D. Md. 2020) ...................... 18

Annex Books, Inc. v. City of Indianapolis,

581 F.3d 460 (7th Cir. 2009) ............................ 9, 20

Baldasar v. Illinois,

446 U.S. 222 (1980) .............................................. 15

Bristol Regional Women’s Center, P.C. v. Slatery,

__ F.3d __, 2021 WL 1589336 (6th Cir. Apr. 23,

2021) ..................................................................... 17

Bristol Regional Women’s Center, P.C. v. Slatery,

988 F.3d 329 (6th Cir. 2021) ................................ 17

City of Burlington v. Dague,

505 U.S. 557 (1992) .............................................. 15

Crawford v. Marion County Election Board,

553 U.S. 181 (2008) .............................................. 14

EMW Women’s Surgical Center v. Friedlander,

978 F.3d 418 (6th Cir. 2020) ......................... passim

Freeman v. United States,

564 U.S. 522 (2011) .............................................. 15

iii

Gibson v. American Cyanamid Co.,

760 F.3d 600 (7th Cir. 2014) .................................. 8

Green v. Haskell County Board of Commissioners,

568 F.3d 784 (10th Cir. 2009) .......................... 9, 13

Grutter v. Bollinger,

539 U.S. 306 (2003) .................................... 7, 15, 19

Hopkins v. Jegley,

968 F.3d 912 (8th Cir. 2020) ...................... 3, 16, 20

Hughes v. United States,

138 S. Ct. 1765 (2018) ...................................... 2, 15

Johnson v. Board of Regents of the University of

Georgia,

263 F.3d 1234 (11th Cir. 2001) ............................ 13

June Medical Services LLC v. Russo,

140 S. Ct. 2103 (2020) ................................... passim

King v. Palmer,

950 F.2d 771 (D.C. Cir. 1991) ................................ 8

Lebanon Farms Disposal, Inc. v. County of

Lebanon,

538 F.3d 241 (3d Cir. 2008) ................................. 13

Lisk v. Lumber One Wood Preserving, LLC,

792 F.3d 1331 (11th Cir. 2015) ............................ 14

Little Rock Family Planning Services v. Rutledge,

984 F.3d 682 (8th Cir. 2021) ................................ 16

iv

Marks v. United States,

430 U.S. 188 (1977) ............................................ 2, 7

McDonald v. City of Chicago,

561 U.S. 742 (2010) .............................................. 14

Memphis Center for Reproductive Health v.

Slatery,

2020 WL 4274198 (M.D. Tenn. July 24, 2020) ... 19

National Federation of Independent Business v.

Sebelius,

567 U.S. 519 (2012) .............................................. 14

Nichols v. United States,

511 U.S. 738 (1994) .......................................... 7, 15

Pearson v. Callahan,

555 U.S. 223 (2009) .............................................. 15

Pennsylvania v. Delaware Valley Citizens’ Council

for Clean Air,

483 U.S. 711 (1987) .............................................. 15

Planned Parenthood of Indiana & Kentucky v.

Box,

991 F.3d 740 (7th Cir. 2021) ......................... passim

Planned Parenthood of Southeastern Pennsylvania

v. Casey,

505 U.S. 833 (1992) ...................................... 3, 9, 14

Planned Parenthood of Southeastern Pennsylvania

v. Casey,

947 F.2d 682 (3d Cir. 1991) ............................. 9, 11

v

Preterm-Cleveland v. McCloud,

__ F.3d __, 2021 WL 1377279 (6th Cir. Apr. 13,

2021) ..................................................................... 18

Ramos v. Louisiana,

140 S. Ct. 1390 (2020) ........................................ 5, 7

Regents of the University of California v. Bakke,

438 U.S. 265 (1978) .............................................. 15

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) ................................................ 1

United States v. Alcan Aluminum Corp.,

315 F.3d 179 (2d Cir. 2003) ................................... 9

United States v. Carrizales-Toledo,

454 F.3d 1142 (10th Cir. 2006) ........................ 8, 13

United States v. Cundiff,

555 F.3d 200 (6th Cir. 2009) ............................ 8, 13

United States v. Davis,

825 F.3d 1014 (9th Cir. 2016) .......................... 8, 14

United States v. Donovan,

661 F.3d 174 (3d Cir. 2011) ................................. 10

United States v. Duron-Caldera,

737 F.3d 988 (5th Cir. 2013) .................................. 8

United States v. Duvall,

740 F.3d 604 (D.C. Cir. 2013) ...............9, 10, 11, 12

United States v. Epps,

707 F.3d 337 (D.C. Cir. 2013) ................................ 8

vi

United States v. Johnson,

467 F.3d 56 (1st Cir. 2006) ........................ 9, 10, 13

United States v. Robison,

505 F.3d 1208 (11th Cir. 2007) .............................. 8

United States v. Williams,

435 F.3d 1148 (9th Cir. 2006) .............................. 13

Webster v. Reproductive Health Services,

492 U.S. 490 (1989) .............................................. 14

Whole Woman’s Health Alliance v. Hill,

493 F. Supp. 3d 694 (S.D. Ind. 2020) .................. 18

Whole Woman’s Health v. Hellerstedt,

136 S. Ct. 2292 (2016) ............................................ 2

Whole Woman’s Health v. Paxton,

972 F.3d 649 (5th Cir. 2020) ............................ 4, 18

Whole Woman’s Health v. Paxton,

978 F.3d 896 (5th Cir. 2020) ......................... passim

Whole Woman’s Health v. Paxton,

978 F.3d 974 (5th Cir. 2020) .................................. 4

Other Authorities

Justin F. Marceau, Lifting the Haze of Baze:

Lethal Injection, The Eighth Amendment,

and Plurality Opinions, 41 ARIZ. ST. L.J. 159

(2009) .............................................................. 12, 13

vii

Lewis A. Kornhauser & Lawrence G. Sager, The

One and the Many: Adjudication in Collegial

Courts, 81 CAL. L. REV. 1 (1993) .......................... 20

M. Todd Henderson, From Seriatim to Consensus

and Back Again: A Theory of Dissent, 2007 SUP.

CT. REV. 283 (2008) ................................................ 6

Mark Alan Thurmon, Note, When the Court

Divides: Reconsidering the Precedential Value

of Supreme Court Plurality Decisions, 42 DUKE

L.J. 419 (1992) ................................................... 6, 7

Michael L. Eber, Comment, When the Dissent

Creates the Law: Cross-Cutting Majorities and

the Prediction Model of Precedent, 58 EMORY

L.J. 207 (2008) ..................................................... 10

Pamela C. Corley, Uncertain Precedent: Circuit

Court Responses to Supreme Court Plurality

Opinions, 37 AM. POL. RES. 30 (2009) ................. 23

Ryan C. Williams, Questioning Marks: Plurality

Decisions and Precedential Constraint, 69

STAN. L. REV. 795 (2017) ............................... passim

1

INTEREST OF AMICUS CURIAE 1

Amicus Curiae Susan B. Anthony List (“SBA” or

“SBA List”) is a “pro-life advocacy organization,” Susan B. Anthony List v. Driehaus, 573 U.S.

149, 153 (2014) (cleaned up), dedicated to reducing

and ultimately eliminating abortion by electing

leaders and advocating for laws that save lives, with

a special calling to promote pro-life women leaders.

SBA List is deeply involved in the process of

persuading fellow citizens of the rightness of its cause

and effecting change through political processes. SBA

List combines politics with policy, investing heavily in

voter education, to ensure that pro-life Americans

know where their lawmakers stand on protecting the

unborn, and in issue advocacy, advancing pro-life

laws through direct lobbying and grassroots

campaigns.

SBA List has a strong interest in ensuring that

States continue to promote legislation that protects

expectant mothers and nascent life. States can only

do that if courts afford legislatures the appropriate

solicitude on questions of medical and scientific

judgment. Courts should not substitute subjective

attitudes toward pro-life legislation for legal

evaluation of it. SBA List thus has a particular

interest in this Court’s resolution of the appropriate

standard for evaluating pro-life legislation.

1 No counsel for a party authored this brief in whole or in part,

and no person other than amicus and its counsel made any

monetary contribution intended to fund the preparation or

submission of this brief. Counsel were timely notified of this brief

as required by Supreme Court Rule 37.2, and all parties

consented to its filing.

2

SUMMARY OF THE ARGUMENT

When a majority of Justices are unable to agree

on the reasoning in support of a judgment, Marks v.

United States directs lower courts to apply the opinion

of the Justice who “concurred in the judgment[ ] on

the narrowest grounds.” 430 U.S. 188, 193 (1977). But

Marks did not define what made an opinion the

“narrowest grounds,” so lower courts have filled the

gap. The result is multiple, divergent, circuit tests, a

conflict that results in Marks being applied differently depending on where a lawsuit happens to be

filed. Without this Court’s intervention, that divide

will only grow, exacerbating differences in how

litigants are treated.

Nowhere is that fracture more evident than in the

abortion context. Just last year, this Court issued a

splintered “4-1-4 decision” that has “left significant

confusion in its wake.” Hughes v. United States, 138

S. Ct. 1765, 1779 (2018) (Sotomayor, J., concurring).

In June Medical Services LLC v. Russo, this Court

split on what standard courts apply when evaluating

laws that protect expectant mothers and nascent life.

140 S. Ct. 2103 (2020). A plurality of four justices

thought that courts must “independently . . . review

the legislative findings upon which an abortionrelated statute rests and to weigh the law’s ‘asserted

benefits against the burdens’ it imposes on abortion

access.” Id. at 2112 (quoting Whole Woman’s Health

v. Hellerstedt, 136 S. Ct. 2292, 2310 (2016)).

But the Chief Justice, writing for himself,

concurred only in the judgment. He concluded that an

abortion regulation’s benefits are relevant only “in

considering the threshold requirement that the State

3

have a ‘legitimate purpose’ and that the law be

‘reasonably related to that goal.’” Id. at 2138 (Roberts,

C.J., concurring in the judgment) (quoting Planned

Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 878, 882

(1992) (plurality opinion)). And so “long as that

showing is made,” the Chief Justice wrote, “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.’” Ibid.

(Roberts, C.J., concurring in the judgment) (quoting

Casey, 505 U.S. at 877 (plurality opinion)). Thus,

according to the Chief Justice, courts should not

balance a pro-life law’s benefits against its purported

burdens. All four dissenting Justices agreed with the

Chief Justice on the propriety of applying the

substantial-obstacle test to pro-life laws rather than

an unmoored balancing test. Id. at 2182 (Kavanaugh,

J., dissenting) (“[F]ive Members of the Court reject

the Whole Woman’s Health cost-benefit standard.”).

Attempting to apply Marks, the circuits have

divided sharply over which opinion controls. Two

circuits have squarely held that “the Chief Justice’s

position is the narrowest under Marks” and “therefore

constitutes June Medical Services’ holding and

provides the governing standard.” EMW Women’s

Surgical Ctr. v. Friedlander, 978 F.3d 418, 433 (6th

Cir. 2020); Hopkins v. Jegley, 968 F.3d 912, 916 (8th

Cir. 2020) (per curiam) (“Chief Justice Roberts’s

separate opinion in June Medical . . . is controlling.”).

That includes the Chief Justice’s understanding that

courts must not weigh an abortion regulation’s

benefits against the burdens it imposes.

4

Instead, when evaluating pro-life legislation, the

Sixth and Eighth Circuits first determine whether the

legislation is “reasonably related to a legitimate state

interest.” June Med. Servs., 140 S. Ct. at 2135

(Roberts, C.J., concurring in the judgment) (cleaned

up). Then they ensure that the legislation does not

have “the effect of placing a substantial obstacle in the

path of a woman seeking an abortion of a nonviable

fetus.” Id. at 2138 (Roberts, C.J., concurring in the

judgment) (cleaned up).

The Fifth and Seventh Circuits take a different

view. In Whole Woman’s Health v. Paxton, the Fifth

Circuit reasoned that “[i]n June Medical, the only

common denominator between the plurality and the

concurrence is their shared conclusion that the

challenged Louisiana law constituted an undue

burden.” 972 F.3d 649, 652 (5th Cir. 2020) (Paxton I).

That same panel reaffirmed this position later in the

litigation. 978 F.3d 896, 904 (5th Cir. 2020) (Paxton

II). The question is now being considered by the Fifth

Circuit en banc. 978 F.3d 974 (5th Cir. 2020).

And in this case, the Seventh Circuit likewise

split from its sister circuits and held that, although

the Chief Justice’s concurrence was “the narrowest

basis for the judgment,” the only guidance it provided

was “giving stare decisis effect to Whole Woman’s

Health v. Hellerstedt.” Planned Parenthood of Ind. &

Ky. v. Box, 991 F.3d 740, 741 (7th Cir. 2021). That,

the panel held, was the only “critical sliver of common

ground between the plurality and the concurrence.”

Id. at 748.

5

The Seventh Circuit panel classified everything

else in the Chief Justice’s opinion—everything that

the other circuits have treated as binding—as mere

“dicta.” Id. at 749. Accordingly, the panel held that

“the balancing test set forth in Whole Woman’s Health

remains binding precedent.” Id. at 752.

This divide requires the Court’s attention. “The

Marks rule is controversial,” so the Court should take

this opportunity to elucidate that rule and give the

lower courts a unified approach on how to

“determin[e] the holding of a decision when there is

no majority opinion.” Ramos v. Louisiana, 140 S. Ct.

1390, 1430 (2020) (Alito, J., dissenting). This would be

of great benefit to litigants and lower courts within

and without the context of litigation over pro-life

legislation.

At the very least, this Court should clarify that

the Chief Justice’s concurring opinion in June

Medical controls and that, under his approach, an

abortion regulation’s benefits are not balanced

against its burdens. Instead, as Casey explained,

courts must ask whether an abortion regulation has

“the effect of placing a substantial obstacle in the path

of a woman seeking an abortion of a nonviable

fetus”—and otherwise follow 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, 2138 (Roberts, C.J., concurring in the

judgment) (cleaned up). The substantial-obstacle test

gives appropriate deference to lawmaking bodies

while constraining lower courts from striking down

legislation based on subjective objections to pro-life

protections.

6

ARGUMENT

I.

There is an intractable circuit split over

Marks and how to determine which Justice

“concurred in the judgments on the

narrowest grounds.”

At the Founding, most courts—including this

one—followed “the seriatim delivery of the judgment

of each judge individually.” M. Todd Henderson, From

Seriatim to Consensus and Back Again: A Theory of

Dissent, 2007 SUP. CT. REV. 283, 292 (2008). That

practice changed when John Marshall became Chief

Justice. Marshall recognized that the “Court would be

better, perhaps more efficient at deciding cases and

making law, if it spoke with one voice.” Id. at 283.

Accordingly, he established “an ‘Opinion of the Court’

that would speak for all Justices through a single

voice.” Id. at 313. That practice survives to this day.

But sometimes “the Justices fail to converge on a

single majority rationale for a decision.” Ryan C.

Williams, Questioning Marks: Plurality Decisions and

Precedential Constraint, 69 STAN. L. REV. 795, 798

(2017). In those situations, there is no single voice

that the lower courts can heed. Initially, when this

Court splintered, “only the results of [such] plurality

decisions were considered authoritative.” Mark Alan

Thurmon, Note, When the Court Divides:

Reconsidering the Precedential Value of Supreme

Court Plurality Decisions, 42 DUKE L.J. 419, 420

(1992). But “[a]s plurality decisions became more

common,” courts began to apply different approaches.

Ibid.

7

Some lower courts “simply followed plurality

opinions as though they were Opinions of the Court.”

Thurmon, 42 DUKE L.J. at 420. Others “looked for a

logical connection or implicit agreement between the

plurality and concurring opinions.” Ibid. The

divergence led this Court to try and “end this

confusion.” Ibid. But the only guidance offered came

from “a single sentence of a decision handed down

more than four decades ago.” Williams, 69 STAN. L.

REV. at 798. That guidance dictates 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 judgments on the narrowest

grounds.” Marks, 430 U.S. at 193 (cleaned up).

This rule, though “easily stated,” has proven difficult to apply. Grutter v. Bollinger, 539 U.S. 306, 325

(2003) (quoting Nichols v. United States, 511 U.S. 738,

745–46 (1994)). Indeed, for nearly 45 years now, it has

consistently “baffled and divided” the lower courts.

Ibid. (cleaned up). Marks itself offers no theory on

what, exactly, constitutes the “narrowest grounds.”

And despite several opportunities to do so, this Court

has not set forth a definitive standard. See Ramos,

140 S. Ct. at 1430 (Alito, J., dissenting) (“[T]wo terms

ago, we granted review in a case that implicated

[Marks’s] meaning. But we ultimately decided the

case on another ground.” (citation omitted)). So the

lower courts have charted their own courses on what

opinion controls when this Court fractures, with

predictably divergent results.

8

A. The lower courts have developed at least

three frameworks to determine what

opinion constitutes the “narrowest

grounds.”

The lower courts have developed at least three

interpretive approaches to determine which Justices’

opinion occupies the “narrowest grounds.”

Under the first approach, courts consider the

“narrowest grounds” to be that opinion which “is a

logical subset of other, broader opinions.” King v.

Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc).

“Stated differently, Marks applies when, for example,

the concurrence posits a narrow test to which the

plurality must necessarily agree as a logical consequence of its own, broader position.” United States v.

Epps, 707 F.3d 337, 348 (D.C. Cir. 2013) (cleaned up).

At least eight courts have, at one time, explicitly used

this approach. E.g., United States v. Davis, 825 F.3d

1014, 1021–22 (9th Cir. 2016) (en banc) (“A fractured

Supreme Court decision should only bind the federal

courts of appeal when a majority of the Justices agree

upon a single underlying rationale and one opinion

can reasonably be described as a logical subset of the

other.”); Gibson v. Am. Cyanamid Co., 760 F.3d 600,

619 (7th Cir. 2014); United States v. Duron-Caldera,

737 F.3d 988, 994 n.4 (5th Cir. 2013); United States v.

Cundiff, 555 F.3d 200, 210 (6th Cir. 2009); United

States v. Robison, 505 F.3d 1208, 1221–22 (11th Cir.

2007); United States v. Carrizales-Toledo, 454 F.3d

1142, 1151 (10th Cir. 2006) (“[T]he Marks rule

produces a determinate holding only when one

opinion is a logical subset of other, broader opinions.”

(cleaned up)); United States v. Alcan Aluminum

Corp., 315 F.3d 179, 189 (2d Cir. 2003).

9

At times, however, the “logical subset” approach

has not “translate[d] easily” the divergence amongst

the Justices. United States v. Johnson, 467 F.3d 56,

63–64 (1st Cir. 2006). To simplify matters, some

courts developed the second approach: classifying the

“median” opinion as controlling. To these courts, the

narrowest opinion comes from the Justice who finds

him- or herself “in the middle.” Annex Books, Inc. v.

City of Indianapolis, 581 F.3d 460, 465 (7th Cir.

2009).

Courts that use this method believe that

“whenever possible, there [should] be a single legal

standard . . . that . . . when properly applied,

produce[s] results with which a majority of the

Justices in the case articulating the standard would

agree.” Planned Parenthood of Se. Pa. v. Casey, 947

F.2d 682, 693 (3d Cir. 1991), aff’d in part, rev’d in

part, and remanded, 505 U.S. 833 (1992). And these

courts believe it is the “middle-ground opinion [that]

will produce results that represent a subset of the

results generated by the other opinions.” United

States v. Duvall, 740 F.3d 604, 610 (D.C. Cir. 2013)

(Kavanaugh, J., concurring in the denial of rehearing

en banc). At least three courts—the Third, Seventh,

and Tenth Circuits—have used this method. Annex

Books, Inc., 581 F.3d at 465; Green v. Haskell Cnty.

Bd. of Comm’rs, 568 F.3d 784, 807 n.17 (10th Cir.

2009); Casey, 947 F.2d at 693 (“Where a Justice or

Justices concurring in the judgment . . . articulates a

legal standard which, when applied, will necessarily

produce results with which a majority of the Court

from that case would agree, that standard is the law

of the land.”).

10

In the third camp are those courts that consider

all opinions—dissents as well as concurrences—“to

determine each proposition where five or more

Justices agree.” Michael L. Eber, Comment, When the

Dissent Creates the Law: Cross-Cutting Majorities

and the Prediction Model of Precedent, 58 EMORY L.J.

207, 210 (2008). At least two courts—the First and

Third Circuits—have followed this model. United

States v. Donovan, 661 F.3d 174, 182 (3d Cir. 2011)

(“[W]e have looked to the votes of dissenting Justices

[to see] if they, combined with votes from the plurality

or concurring opinions, establish a majority view on

the relevant issue.”); Johnson, 467 F.3d at 65

(“Since Marks, several members of the Court have

indicated that whenever a decision is fragmented

such that no single opinion has the support of five

Justices, lower courts should examine the plurality,

concurring and dissenting opinions to extract the

principles that a majority has embraced.”); accord

Duvall, 740 F.3d at 609 (Kavanaugh, J., concurring in

the denial of rehearing en banc) (“The point of Marks,

however, is for lower courts to reach results with

which a majority of the Supreme Court in the relevant

precedent would agree.”).

B. Even courts that have adopted the same

framework differ substantially on how

to apply that framework.

The lower courts’ disagreement over which

framework best interprets Marks’s edict illustrates

only half the problem. Even when courts agree

generally on the test to apply, differences over details

abound, particularly over the test’s purpose.

11

For instance, courts might use the same

framework to interpret Marks but disagree over the

purpose behind the rule. Does Marks “promote

predictability in the law by ensuring lower court

adherence to Supreme Court precedent[?]” Casey, 947

F.2d at 693. Relatedly, should courts use Marks to

find “a single legal standard for the lower courts to

apply in similar cases[?]” EMW Women’s Surgical

Ctr., 978 F.3d at 434. Might the purpose behind the

Marks rule instead be to “produce results,” not rules,

“with which a majority of the Court in that case

necessarily would agree[?]” Duvall, 740 F.3d at 608

(Kavanaugh, J., concurring in the denial of rehearing

en banc) (emphasis added). Marks definitively

answers none of these questions and, after four

decades, the lower courts have not coalesced around

any clear solution. Rather, the longer Marks

percolates, the more the lower courts disagree.

Worse, one disagreement begets another. Courts

that agree on the framework but disagree on the

purpose often reach conflicting results. The Sixth

Circuit, for instance, sees Marks as “requir[ing] that,

whenever possible, there be a single legal standard for

the lower courts to apply in similar cases.” EMW

Women’s Surgical Ctr., 978 F.3d at 434. Yet “[m]any—

if not most—plurality decisions involve situations in

which the rationales of the various judgmentsupportive opinions overlap in some respect but

diverge in others.” Williams, 69 STAN. L. REV. at 810.

A narrow “common denominator” between the

plurality and the concurrence likely will not yield a

workable standard. Thus, “strict adherence to the

common denominator approach” would make finding

a holding nearly impossible for “many, if not most,

12

plurality opinions.” Justin F. Marceau, Lifting the

Haze of Baze: Lethal Injection, The Eighth

Amendment, and Plurality Opinions, 41 ARIZ. ST. L.J.

159, 172–73 (2009). To obtain a single legal standard,

then, the Sixth Circuit applies the entire rationale

from the narrowest opinion. It treats that opinion as

“the Court’s opinion . . . entitled to as much authority

and respect as any other opinion of the Supreme

Court,” even if only one Justice issues the opinion.

EMW Women’s Surgical Ctr., 978 F.3d at 436; accord

Duvall, 740 F.3d at 611 (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. . . . That is true even

if only one Justice issues the binding opinion.”

(cleaned up)).

But other courts, like the Seventh Circuit here,

apply Marks only when a splintered decision has

identifiable common ground. These courts infer no

duty “to bring symmetry to any ‘doctrinal disarray’

[they] might encounter” between the Justices’ various

approaches. Box, 991 F.3d at 748. Nor do they think

that Marks “command[s] lower courts to find a

common denominator—to find an implicit consensus

among divergent approaches—where there is actually

none.” Ibid. If Marks forced a single legal standard,

then these courts fear that a lone Justice would have

“the ability to write obiter dicta” into “national law.”

Id. at 747, 750. That cannot be the case, so these

courts tend to identify only narrow agreement, if any,

among the Justices.

13

Courts might also agree on the framework but

still disagree over what makes an opinion “narrow.”

Both the Sixth and Seventh Circuits ostensibly follow

the “logical subset” approach. But the Sixth Circuit

defines “narrow” as that opinion which is “the least

. . . far-reaching.” Cundiff, 555 F.3d at 209; accord

Johnson, 467 F.3d at 60; Johnson v. Bd. of Regents of

the Univ. of Ga., 263 F.3d 1234, 1247 (11th Cir. 2001).

In constitutional cases, that means the narrowest

opinion is the one “whose rationale would uphold the

fewest laws going forward” (if the fractured decision

upheld the law), or, conversely, the one “whose

rationale would invalidate the fewest laws going

forward” (if the fractured decision struck down the

law). EMW Women’s Surgical Ctr., 978 F.3d at 431–

32. Conversely, the Seventh Circuit explicitly rejects

this idea and instead adheres strictly to its conception

of “common ground” as narrow. Box, 991 F.3d at 750.

Even absent disagreement, lower courts will

sometimes blur or gloss over the distinctions between

frameworks, creating analytical confusion. Williams,

69 STAN. L. REV. at 807. The lower courts have, for

instance, treated the “logical subset” and the

“median” approaches as if they were but two prongs

of the same test. Marceau, 41 ARIZ. ST. L.J. at 170

n.49 (citing Lebanon Farms Disposal, Inc. v. Cnty. of

Lebanon, 538 F.3d 241 (3d Cir. 2008); United States

v. Williams, 435 F.3d 1148 (9th Cir. 2006)). And

courts tend to espouse one view of Marks only to later

espouse a different view, suggesting that the chosen

approach may be driven by results rather than a strict

reading of Marks. Compare, e.g., Green, 568 F.3d at

807 n.17 (using the “median” method), with

Carrizales-Toledo, 454 F.3d at 1151 (applying the

14

“logical subset” method); see also Davis, 825 F.3d at

1021 (“Our cases interpreting Marks have not been a

model of clarity.”). As the Eleventh Circuit has

candidly acknowledged, it has “taken as many as

three different approaches [to Marks]—or we at least

have articulated our approach three different ways—

when confronting other fragmented Supreme Court

decisions.” Lisk v. Lumber One Wood Preserving,

LLC, 792 F.3d 1331, 1337 (11th Cir. 2015).

Without this Court’s intervention, this confusion

will continue, and the circuit split will deepen. And

the damage will not be limited to the circuits’ views of

Marks. More often than not, this Court’s splintered

decisions arise in cases involving controversial

constitutional issues. For example, this Court has

issued fractured opinions on everything from

abortion, June Med. Servs., 140 S. Ct. at 2103; Casey,

505 U.S. at 833; Webster v. Reproductive Health

Servs., 492 U.S. 490 (1989), to gun control, McDonald

v. City of Chicago, 561 U.S. 742 (2010), to voting

rights, Crawford v. Marion Cnty. Election Bd., 553

U.S. 181 (2008), to the Commerce Clause’s scope,

Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519

(2012). Without a clarification of Marks, there is an

open invitation for lower courts to construe Marks in

a way that will allow the decision-making panel to

identify and apply the rule of law in an outcomedeterminative manner.

Inevitably, these conflicts over Marks cause

derivative circuit splits on substantive issues. This

has the effect of unnecessarily adding repeat cases to

this Court’s docket.

15

Indeed, on no less than four occasions, this Court

has had to address an issue twice because the lower

courts split over how to apply the Court’s original,

fractured decision. Hughes, 138 S. Ct. at 1772

(resolving circuits’ interpretations of Freeman v.

United States, 564 U.S. 522 (2011)); Grutter, 539 U.S.

at 325 (clarifying fractured decision in Regents of the

Univ. of Cal. v. Bakke, 438 U.S. 265 (1978)); City of

Burlington v. Dague, 505 U.S. 557, 559 (1992)

(examining “question . . . essentially identical to the

one [ ] addressed” in Pennsylvania v. Del. Valley

Citizens’ Council for Clean Air, 483 U.S. 711 (1987));

Nichols v. United States, 511 U.S. 738, 746 (1994)

(reexamining fractured decision in Baldasar v.

Illinois, 446 U.S. 222 (1980)). And no issue highlights

this fracas more than abortion.

II. There is an intractable circuit split over

what opinion from June Medical constitutes

the “narrowest grounds.”

Add to the chaos of Marks “the state of utter

entropy” of this Court’s abortion jurisprudence. June

Med. Servs., 140 S. Ct. at 2152 (Thomas, J., dissenting). Even before June Medical, that jurisprudence

attracted criticism from “Members of the Court” and

“defied consistent application by the lower courts.” Cf.

Pearson v. Callahan, 555 U.S. 223, 235 (2009). June

Medical’s fractured nature—and the lower courts’

myriad ways to deal with it—has made the problem

worse. As the panel below recognized, “the scope of

June Medical and the effect of the [Chief Justice’s

concurring opinion] has been controversial.” Box, 991

F.3d at 751. The circuit split is intractable, with one

circuit even at war with itself on the issue.

16

A. The lower courts have split over how to

apply the Chief Justice’s concurring

opinion.

One circuit, the Eighth, has concluded that Chief

Justice Roberts’ entire concurring opinion controls.

Hopkins, 968 F.3d at 915; accord Little Rock Family

Planning Servs. v. Rutledge, 984 F.3d 682, 687 n.2

(8th Cir. 2021) (“Chief Justice Roberts’s concurring

opinion is controlling.”). In doing so, the court held

that the “appropriate inquiry under Casey is whether

the law poses ‘a substantial obstacle’ or ‘substantial

burden.’” Hopkins, 968 F.3d at 915. It rejected the

idea that “the undue burden standard requires courts

to weigh the law’s asserted benefits against the

burdens it imposes on abortion access.” Id. at 914

(quoting June Med. Servs., 140 S. Ct. at 2135

(Roberts, C.J., concurring in the judgment)). On the

contrary, the Eighth Circuit, following the Chief

Justice, said that “a weighing of costs and benefits of

an abortion regulation” was for legislatures, not the

courts. Id. at 915. And those legislatures have “wide

discretion to pass legislation in areas where there is

medical and scientific uncertainty.” Ibid. (emphasis

omitted).

By contrast, the Seventh Circuit here concluded

that the Chief Justice’s concurring opinion controls

only to “giv[e] stare decisis effect to Whole Woman’s

Health v. Hellerstedt.” Box, 991 F.3d at 741. The

Seventh Circuit therefore did the very thing that the

Eighth Circuit said that June Medical forbade: it

applied the “balancing test set forth in Whole

Woman’s Health” and measured the challenged

regulation’s benefits against its burdens. Id. at 752.

17

Emphasizing how “challenging and fluid” the

situation is, id. at 751 n.7, the Sixth Circuit has

adopted both sides of the split. Initially, the Sixth

Circuit, like the Eighth, treated the Chief Justice’s

opinion as controlling in its entirety. EMW Women’s

Surgical Ctr., 978 F.3d at 433. The court therefore

measured whether the pro-life legislation in question

had the effect of placing a substantial obstacle in the

path of a woman seeking an abortion, but the court

did not weigh those burdens against the regulation’s

purported benefits, leaving such determinations “to

the state’s medical and scientific judgments.” Id. at

433.

But in a later opinion a Sixth Circuit panel

criticized the EMW panel for taking on the “vexing

task of deciding which opinion [from June Medical]

control[led].” Bristol Reg’l Women’s Ctr., P.C. v.

Slatery, 988 F.3d 329, 336 (6th Cir. 2021). This new

panel concluded that, in the end, the EMW panel’s

task was “much ado about nothing.” Ibid. Although

the new panel purported not to “resolve the issue of

EMW’s precedential value,” it nonetheless proceeded

to “consider the burdens a law imposes on abortion

access together with the benefits those laws confer.”

Id. at 337–38, 340. In light of this internal split, the

Sixth Circuit decided to take up the issue en banc.

Bristol Reg’l Women’s Ctr., P.C. v. Slatery, __ F.3d __,

2021 WL 1589336 (6th Cir. Apr. 23, 2021).2

2 The en banc court will likely reaffirm EMW’s conclusion that

the Chief Justice’s entire concurring opinion controls. In a

separate case, the en banc Sixth Circuit stated that “the test

articulated in EMW”—in other words, the test found in the Chief

Justice’s concurrence—“is the controlling law of our Circuit.”

Preterm-Cleveland v. McCloud, __ F.3d __, 2021 WL 1377279, at

18

The Fifth Circuit is also internally divided on the

issue. Like the Seventh Circuit, the Fifth initially

held that June Medical’s only precedential value was

“that the challenged Louisiana law posed an undue

burden on women seeking an abortion.” Paxton I, 972

F.3d at 653. The court thus “applied Hellerstedt’s

balancing test.” Ibid. And it doubled down on that

position later in the litigation. Paxton II, 978 F.3d at

904 (“In other words, the plurality’s and concurrence’s descriptions of the undue burden test are not

logically compatible, and June Medical thus does not

furnish a controlling rule of law on how a court is to

perform that analysis. Instead, Whole Woman’s

Health’s articulation of the undue burden test as

requiring balancing a law’s benefits against its

burdens retains its precedential force.” (cleaned up)).

But then a majority of the Fifth Circuit vacated the

panel’s conclusion and agreed to take up the issue en

banc. 978 F.3d at 974.

And that’s just the circuit courts. The district

courts have also been all over the map on the issue.

Whole Woman’s Health Alliance v. Hill, 493 F. Supp.

3d 694, 733–34 (S.D. Ind. 2020) (holding that the

Chief Justice’s opinion controls only to say that “the

Louisiana statute imposed an undue burden on a

woman’s right to access abortion”); accord Am. Coll. of

Obstetricians & Gynecologists v. FDA, 472 F. Supp. 3d

183, 209 (D. Md. 2020) (“Accordingly, June Medical

Services is appropriately considered to have been

*8 (6th Cir. Apr. 13, 2021) (en banc) (plurality opinion); see also

id. at *29 (Kethledge, J., concurring in part and concurring in

the judgment) (“[U]nder [EMW], the law of our circuit already is

that the Chief Justice’s opinion from [June Medical] is the

controlling opinion from that case.”).

19

decided without the need to apply or reaffirm the

balancing test of Whole Woman’s Health, not that

Whole Woman’s Health and its balancing test have

been overruled.”); Adams & Boyle, P.C. v. Slatery, 494

F. Supp. 3d 488, 2020 WL 6063778, at *56 (M.D.

Tenn. 2020) (applying the balancing test); but see

Memphis Ctr. for Reproductive Health v. Slatery, 2020

WL 4274198, at *14 (M.D. Tenn. July 24, 2020) (“An

undue burden exists, and therefore a provision of law

is invalid, if its purpose or effect is to place a

substantial obstacle in the path of a woman seeking

an abortion before the fetus attains viability.”

(citations omitted)).

B. This Court should confirm that the Chief

Justice’s concurrence sets the standard

for analyzing the validity of pro-life

protections.

Even if this Court decides not to clarify Marks, it

should still clarify June Medical. Cf. Grutter, 539 U.S.

at 325 (“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.” (cleaned up)). And given the

“[l]egal clashes [that] have erupted nationally over

the vexing interplay between Marks and June

Medical,” this Court should do so promptly. Paxton II,

978 F.3d at 919 (Willett, J., dissenting). Contrary to

the panel’s holding below, the Chief Justice’s

concurring opinion sets out how courts should

evaluate abortion regulations. For no matter how this

Court treats Marks—no matter which lower court’s

approach, if any, is correct—the Chief Justice

concurred on the “narrowest grounds.”

20

Start with the “median” approach, the easiest to

apply. The Chief Justice’s opinion sits between the

plurality’s broad “grand balancing test” on the one

hand and the dissenting opinions’ various approaches

on the other hand, thus putting the Chief Justice “in

the middle.” See Annex Books, Inc., 581 F.3d at 465.

That’s how the Eighth Circuit concluded that the

Chief Justice’s opinion controlled. Hopkins, 968 F.3d

at 915 (“Chief Justice Roberts’s vote was necessary in

holding unconstitutional Louisiana’s admitting-privileges law, so his separate opinion is controlling.”).

Moreover, if Marks allows courts to count the

votes from all opinions, then it is clear that “five

Members of the Court reject[ed] the Whole Woman’s

Health cost-benefit standard.” June Med. Servs., 140

S. Ct. at 2182 (Kavanaugh, J., dissenting).

But even under the stricter “logical subset”

approach, the Chief Justice’s concurring opinion

controls. Think of the plurality’s rationale in

mathematical terms: “substantial obstacle +

insignificant benefits = undue burden.” Paxton II, 978

F.3d at 917 (Willett, J., dissenting). Then consider the

Chief Justice’s rationale in those same terms:

“substantial obstacle = undue burden.” Ibid. (Willett,

J., dissenting). Like a Russian nesting doll, the Chief

Justice’s formula fits within the plurality’s formula.

See Lewis A. Kornhauser & Lawrence G. Sager, The

One and the Many: Adjudication in Collegial Courts,

81 CAL. L. REV. 1, 45–48 (1993) (arguing that Marks

only works if a concurring rationale “fit[s] within [the

plurality’s rationale] like Russian dolls”). For the

Chief Justice did not “reject the plurality’s test in its

entirety.” Paxton II, 978 F.3d at 919 (Willett, J.,

dissenting). Instead, he “only reject[ed] the plurality’s

21

added observation concerning the weighing of the

law’s asserted benefits.” Ibid. (Willett, J., dissenting)

(cleaned up). “In other words, remove the few pages of

the plurality’s benefits analysis, and the Chief Justice

is on board with the opinion.” Ibid. (Willett, J.,

dissenting) (cleaned up). That makes the Chief

Justice’s opinion “both a subset of, and a narrower

holding than, the plurality opinion.” Ibid. (Willett, J.,

dissenting).

The panel below sidestepped this conclusion by

suggesting that the only common ground between the

plurality and the Chief Justice was “giving stare

decisis effect to Whole Woman’s Health v. Hellerstedt.”

Box, 991 F.3d at 741. As Judge Kanne noted in

dissent, that conclusion “is imprecise.” Id. at 755

(Kanne, J., dissenting). Both the Chief Justice and the

plurality did agree that Hellerstedt earned stare

decisis respect. The plurality thought that

Hellerstedt’s test garnered that respect, hence the

need to evaluate an abortion regulation’s purported

benefits. But nowhere did “the Chief Justice suggest

that Whole Woman’s Health’s formulation of a

balancing test is entitled to stare decisis effect.” Id. at

755 (Kanne, J., dissenting). The Chief Justice

believed this “grand balancing test” a departure from

Casey’s undue-burden standard. Such a departure

was not entitled to stare decisis. June Med. Servs., 140

S. Ct. at 2135 (Roberts, C.J., concurring in the

judgment) (cleaned up). Instead, the Chief Justice

thought that only Hellerstedt’s conclusion deserved

stare decisis respect—that “Texas’s law imposed a

substantial obstacle requires the same determination

about Louisiana’s law.” Id. at 2139 (Roberts, C.J.,

concurring in the judgment).

22

No one questions, then, that the plurality and the

Chief Justice agree that Hellerstedt’s result garners

stare decisis effect. But the two opinions also overlap

on the test to get there—namely, on the “finding of a

substantial obstacle.” Box, 991 F.3d at 753 (Kanne, J.,

dissenting). Under both the plurality and the Chief

Justice’s rationale, courts must determine whether an

abortion regulation has “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) (cleaned up); id. at 2120 (plurality opinion)

(“[A] statute which . . . has the effect of placing a

substantial obstacle in the path of a woman’s choice

cannot be considered a permissible means of serving

its legitimate ends.” (cleaned up)). That, contrary to

the Seventh Circuit’s conclusion, is the true common

denominator between the two approaches. Box, 991

F.3d at 755 (Kanne, J., dissenting).

In the end, that most “courts [have] reached the

same conclusion while applying different standards

. . . is strong[ ] evidence” that the Chief Justice’s

opinion controls. Id. at 757 (Kanne, J., dissenting).

The Seventh Circuit was incorrect to reach a different

outcome. This Court should grant the State’s petition

and reverse, clarifying the correct standard for

evaluating pro-life legislation.

***

23

Split decisions are “a familiar feature of the

Court’s decisionmaking.” Williams, 69 STAN. L. REV.

at 799. They tend to “occur in cases involving

especially difficult and highly salient legal issues on

which public opinion is sharply divided.” Id. at 799–

800 (quoting Pamela C. Corley, Uncertain Precedent:

Circuit Court Responses to Supreme Court Plurality

Opinions, 37 AM. POL. RES. 30, 32 (2009)). And

“decades of experience with Marks suggests that” the

lower courts will never organically converge on an

interpretation. Id. at 859. Thus, the “doctrinal

confusion among lower courts regarding the proper

application of Marks” will continue to produce “a

series of longstanding circuit splits . . . from lower

courts’ disagreements regarding how the narrowest

grounds rule should apply to particular Supreme

Court plurality decisions.” Id. at 807. This Court

should end that confusion and clarify how the lower

courts should identify the “narrowest grounds.”

Even if the Court does not decide the best interpretative framework for Marks, it should at least

resolve the circuit split that Marks has produced here:

which opinion from June Medical controls. In doing

so, this Court should clarify that the Chief Justice’s

concurrence controls, and that courts should not

apply a balancing test when they evaluate legislation

that protects pregnant mothers and the nascent life

they carry. Instead, as has been the case for three

decades, courts should evaluate whether such

legislations place a substantial obstacle on abortion

access.

24

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

KRISTEN K. WAGGONER

JOHN J. BURSCH

Counsel of Record

DAVID A. CORTMAN

CODY BARNETT

ALLIANCE DEFENDING FREEDOM

440 First Street, NW

Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@ADFlegal.org

MAY 2021