Divided Sixth Circuit Upholds Kentucky Abortion Regulations
On Friday, in EMW Women’s Surgical Center, et al. v. Friedlander, a divided panel of the U.S. Court of Appeals for the Sixth Circuit vacated a permanent injunction against Kentucky’s requirement that abortion provides have transfer agreements with local hospitals. The opinion, by Judge Joan Larsen joined by Judge Chad Readler, concluded the district court was wrong to conclude enforcement of the rules would leave Kentucky without a licensed abortion provider. In the majority’s view, the plaintiffs could not show that Kentucky’s requirements would impose an “undue burden” on the right of a woman to obtain an abortion Judge Eric Clay dissented.
Of particular interest is Judge Larsen’s discussion of how to understand the “undue burden” standard in light of the Supreme Court’s decision in June Medical Services v. Russo, in which the Court invalidated Louisiana’s admitting privilege requirement for abortion providers, but without a controlling majority opinion. In June Medical Services, the Court split 4-1-4, with the Chief Justice providing the fifth vote to invalidate the Louisiana regulations while also rejecting the interpretation of “undue burden” adopted by the Court in Whole Women’s Health v. Hellerstedt.
Here is how Judge Larsen evaluated how lower courts should apply June Medical Services.
Because no opinion in June Medical Services garnered a majority, we, as a lower court, have the “vexing task” of deciding which opinion controls. . . . 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). . . . 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. . . .
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 res
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