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18 ¦ AUGUST 31, 2020 NEWS

¦ From DIVISION on PAGE 17 to block an injunction, pending appeal, against
In the weeks since the decision, Roberts’ opinion Texas’ law banning dilation and evacuation, the
and the Marks ruling have figured in at least three standard method of abortion after approximately 15
recent abortion rulings. weeks of pregnancy.
In the case Hopkins v. Jegley, a panel of the U.S. Fifth Circuit Judge Don Willett, in a dissenting
Court of Appeals for the Eighth Circuit on Aug. 7 opinion, wrote he would have granted Texas’ motion
vacated a district court injunction blocking four for a stay and have remanded for reconsideration
Arkansas anti-abortion laws and remanded the case “under the now-governing legal standard.” (A sepa-
for reconsideration in light of Roberts’ opinion. The rate opinion by Judge James Dennis is forthcoming.)
panel, in an unsigned opinion, said the Roberts The Supreme Court, Willett wrote, divided 4-1-4
opinion was controlling under Marks as there are in June Medical.
now five votes—Roberts plus the four Louisiana dis- “The opinions are splintered, but the takeaway
senters—to overrule the benefits-burdens standard seems clear: The three-year-old injunction issued by
in Whole Woman’s Health. the district court in this case rests upon a now-inval-
A petition for rehearing be- id legal standard.” Willet cited the
fore the panel or en banc was filed Eighth Circuit panel decision and
Aug. 21 by the ACLU’s Ruth Har- Justice Brett Kavanaugh’s dissent-
low, counsel with the Center for ing opinion in June Medical in
Reproductive Rights for Dr. Fred- which Kavanaugh wrote: “Today,
erick Hopkins. Harlow argued five members of the court reject
that the panel misapplied Marks. the Whole Woman’s Health cost-
“The Supreme Court has The legal wrangling presents benefit standard.”
a fresh opportunity for
used ‘lowest common denomi- courts to resolve how to Texas state lawyers on Tuesday
nator or narrowest ground’ interpret Supreme Court asked the en banc Fifth Circuit
interchangeably in this context,” “plurality” decisions. to stay the district court’s injunc-
Harlow wrote. “The lowest com- tion, arguing that the district
mon denominator among the five court’s analysis conflicts with the
concurring votes in June Medical Casey and June Medical decisions.
is that WWH and stare decisis re- Last month, on July 13, U.S.
quired the court to hold the same District Judge Theodore Chuang
abortion restriction unconstitu- of the District of Maryland, in
tional in Louisiana as WWH had an 80-page opinion in the medi-
in Texas. Under Marks, this nar- cation abortion case American
row overlap among those Justices concurring in the College of Obstetricians & Gynecologists v. FDA, re-
judgment represents the holding of the court in June jected the Justice Department’s argument that June
Medical.” Medical altered the abortion standard.
Roberts’ reprise of his criticism of Whole Wom- Chuang, relying on Marks, wrote: “Where the chief
an’s Health, she added, was only “dicta” and not part justice’s concurrence in the judgment was necessary
of the holding. “The panel decision contravenes to reach a majority, the holding of June Medical Ser-
first principles of stare decisis and disregards that vices is fairly limited to the reasoning that represents
overruling a Supreme Court majority decision’s a ‘common denominator’ that he shared with the
mandated test requires decisive action by that court, plurality. To the extent that there is a ‘common de-
not merely critiques in one later concurrence or dis- nominator,’ it is that the five justices agreed that a
sents,” Harlow told the Eighth Circuit. ‘substantial obstacle’ based solely on consideration
Last week, on Aug. 21, in the case Whole Woman’s of burdens is sufficient to satisfy the undue burden
Health v. Paxton, a divided Fifth Circuit panel refused standard, not that it is necessary.”

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