In Planned Parenthood of Indiana and Kentucky, Inc. v. Box, (7th Cir., March 12, 2021), in a case on remand from the U.S. Supreme Court, the U.S. 7th Circuit Court of Appeals in a 2-1 decision struggled with the meaning of the Supreme Court's recent fragmented opinion on abortion rights-- June Medical Services LLC v. Russo. At issue is an Indiana statute which requires a minor's parents to be notified that their daughter is seeking to use the judicial bypass route to obtain an abortion. The only exception, regardless of the minor's maturity, is a judicial finding that parental notice is not in the minor's best interest. The court spent much of its opinion attempting to apply the test in Marks v. United States for how to make sense of a fragmented Supreme Court decision with no single majority opinion. Affirming the district court's grant of a preliminary injunction against enforcement of the statute, the court said in part:
In June Medical, there is one critical sliver of common ground between the plurality and the concurrence: Whole Woman’s Health was entitled to stare decisis effect on essentially identical facts..... The Marks rule therefore applies to that common ground, but it applies only to that common ground. That application offers no direct guidance for applying the undue burden standard more generally, let alone to the quite different parental notice requirement in this case. That absence of guidance answers our question: the Marks rule tells us that June Medical did not overrule Whole Woman’s Health. That means Whole Woman’s Health remains precedent binding on lower courts.
Judge Kanne filed a dissenting opinion saying in part:
The plurality in June Medical held that the Louisiana law at issue was unconstitutional because it “poses a ‘substantial obstacle’ to women seeking an abortion [and] offers no significant health-related benefits.”... The Chief Justice’s concurrence, however, simply held only that the Louisiana law was unconstitutional because, under Whole Woman’s Health, it “imposed a substantial obstacle.” ...
Thus, the finding of a “substantial obstacle” is the common denominator between the opinions—and we should correct our previous decision by abandoning the added weighing of benefits that Chief Justice Roberts explicitly rejected.
Reporting on the decision, ABA Journal points out:
The decision puts the 7th Circuit at odds with the ... 8th Circuit at St. Louis and the 6th Circuit at Cincinnati.
[Thanks to Tom Rutledge for the lead.]
