By David S. Cohen*
What’s the test in lower court cases challenging abortion restrictions? Is it the burdens versus benefits balancing test from Whole Woman’s Health v. Hellerstedt? Or is it the substantial obstacle test, with no balancing, from Chief Justice Roberts’ concurring opinion in June Medical v. Russo? This is the burning question in the post-June Medical world. Answering it takes us into the world of pornography, voting paradoxes, horizontal versus vertical stare decisis, and the simple-yet-beguiling dictum/holding divide.
The solution to this problem bridges two scholarly interests of mine—reproductive rights and Supreme Court decision-making. I’ve already written about June Medical’s implications for future Supreme Court abortion cases, with the Chief signaling that he is perfectly fine to allow most restrictions to go into effect. Here, I want to focus on the lower courts, who are bound to follow Supreme Court precedent, as opposed to hints as to what the Court might do in the future. But what is the precedent from the divided decision in June Medical?
So far, two lower courts have tackled this problem, reaching opposite conclusions. First, in early July, the District of Maryland found that the FDA’s requirement that abortion pills be dispensed at the clinic rather than being sent by mail is unconstitutional during the coronavirus pandemic. In doing so, the court applied the Whole Woman’s Health balancing test. It reasoned that the “common denominator” between the June Medical plurality and concurring opinions was that the Louisiana law was a substantial burden. Beyond that, there was no common denominator about a test, so the Whole Woman’s Health’s balancing test continues to be the law.
In early August, the Eighth Circuit ruled otherwise. In a case challenging a series of Arkansas abortion restrictions, the Court of Appeals instructed the lower court to re-evaluate the claims based on the Chief’s June Medical concurrence. The court reasoned that the Chief’s opinion “is controlling” because his “vote was necessary in holding” that the Louisiana law was unconstitutional. The court also noted, quoting Justice Kavanaugh’s June Medical dissent, that five Justices (the Chief and the four June Medical dissenters) rejected the Whole Woman’s Health test.
In dueling letter briefs to the Fifth Circuit in a case challenging Texas abortion restrictions, attorneys on both sides of the abortion divide have also produced different analyses. The attorneys representing the abortion clinics told the court that there was no common denominator between the Breyer and Roberts opinions, so neither opinion is controlling, leaving Whole Woman’s Health the decisional rule. The attorneys for the state of Texas, of course, took the opposing position, claiming that Chief Justice Roberts’ rejection of the balancing test in favor of a substantial burden test (without balancing benefits) was now the correct test .
So who’s right here? The District of Maryland and the abortion clinic attorneys have reached the right result, but their analyses are not technically correct.
The right way to get there relies on what’s called the Marks rule. Marks v. United States is a 1977 Supreme Court case that addressed the proper standard for pornography convictions. Deciding the case meant the Justices had to determine what to make of a prior obscenity decision that had fractured opinions from the Justices. Justice Powell’s opinion in Marks announced what is now known as the narrowest grounds rule: “When 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.’”
As easy as it is to find and quote this rule, there has been deep scholarly and judicial disagreement (and confusion) over how it is applied (and even whether it should be the rule in these situations). The best scholarly work about the rule comes from Professor Maxwell Stearns, who has long written about Marks. In an excellent forthcoming article (“Modeling Narrowest Grounds”), Professor Stearns describes the theoretical underpinnings of the rule and explains its benefits and limitations. The rest of the analysis in this post is based on my synthesis of emails he and I have traded about his article, which is still in draft form, and June Medical over the past two weeks. (Though any flaws in this analysis are mine alone.)
The key issue in determining if and how Marks applies is whether the Court’s judgment is based on a single dimension. A single dimension means the Court’s decision turns on determining whether the applicable legal principle should be broader or narrower along a single scale. If there is a second issue that is essential for the judgment, such as determining the applicability of a second legal principle that cannot be scaled consistent with the first issue, there are two dimensions. Marks can only apply when there is a single dimension. When there are two dimensions, such as a disagreement over a separate jurisdictional issue, there is a risk of a voting paradox, something I’ve written about extensively.
For instance, in McDonald v. Chicago, the case in which the Supreme Court incorporated the Second Amendment against state and local governments, the split decisions created a voting paradox. In that case, eight Justices rejected incorporation of the Second Amendment under the Privileges or Immunities Clause and five Justices rejected incorporation under the Due Process Clause. Since both claims were rejected by a majority of the Justices, it would seem that the Second Amendment wouldn’t be incorporated. However, because four Justices thought it was incorporated under the Due Process Clause and a separate Justice believed it was incorporated under the Privileges or Immunities Clause, the outcome of the case is that the Second Amendment was incorporated. Thus, the paradox—separating out the dimensions leads to a conclusion that there is no incorporation, but the outcome of the case is that there is incorporation.
In June Medical, there is no paradox because there is only one dimension that determines the outcome of the case—how protective the Constitution is of the abortion right. Characteristic of one-dimension cases in which Marks applies, the fragmented opinions in the case can be aligned along a spectrum of more protective to least protective: Justice Breyer’s plurality opinion would protect the abortion right the most, the varying dissenting opinions would protect it the least, and Chief Justice Roberts’ opinion is in the middle. Thus, under Marks, the Chief Justice’s opinion—the narrowest that supports the judgment in the case—is the controlling opinion.
However, that isn’t the end of the analysis. The Chief’s opinion can be recast as one that has two parts to his analysis of this one dimension. First, he says that he disagrees with the legal analysis in the Breyer plurality because he doesn’t believe the Constitution requires balancing burdens and benefits to determine if an abortion restriction is unconstitutional. Rather, under the Chief’s rule, if an abortion law has a legitimate basis, it is constitutional as long as it doesn’t create a substantial burden. This is a rejection of the legal standard from Whole Woman’s Health. But second, the Chief says that, even though he rejects the legal standard from that case, as a matter of stare decisis he will follow the specific factual holding of the case (which he dissented from in 2016)—that admitting-privileges laws constitute a substantial burden. Because he follows this part of Whole Woman’s Health, he concludes the Louisiana law is unconstitutional.
If the Marks analysis ended with concluding that the Chief’s entire opinion controls, lower courts would have to apply both parts of his opinion—his relaxed test as well as the conclusion that admitting privileges laws are unconstitutional. However, the Marks analysis, by its very language, also requires determining the holding of the controlling opinion in order to determine what part of the Chief’s controlling opinion creates the binding precedent for lower courts.
Looking for the holding from the Chief’s opinion gets us to our final answer. The first part of his analysis—about the proper test for future cases—is dicta because it is not essential to the resolution of the matter before the Court. Why not? Because he says in the second part of his analysis that he is going to apply the factual holding from Whole Woman’s Health to determine that the law is unconstitutional. In other words, the new standard the Chief puts forth in the beginning of his opinion is not necessary to reach his conclusion that Whole Woman’s Health should apply to the Louisiana law as a matter of stare decisis.
What this means is that June Medical produces a very limited holding, one that is only about the unconstitutionality of admitting privileges. That is all we can take away by applying Marks to the fractured opinions. Beyond that, we have no new holding from the Supreme Court about a legal standard to apply in abortion cases. That means Whole Woman’s Health’s balancing test, which was announced in a majority opinion from the Supreme Court, continues to be the test lower courts must apply going forward.
What the Supreme Court will do as a matter of horizontal stare decisis is a different matter, as five Justices have signaled their support for a test that allows more state abortion restrictions. But, as a matter of vertical stare decisis, Whole Woman’s Health continues to bind the lower courts because any language to the contrary in the Chief’s controlling June Medical opinion was merely dictum.
*David S. Cohen (J.D.) is a Professor of Law at the Thomas R. Kline School of Law at Drexel University.
 Letter Brief of Plaintiffs-Appellants at 3–6, Whole Woman’s Health v. Smith, No. 18-50730 (5th Cir. July 10, 2020), 2020 WL 4060434.
 Letter Brief of Respondents at 5–7, Whole Woman’s Health v. Smith, No. 18-50730 (5th Cir. July 10, 2020), 2020 WL 4060435.