JUNE MEDICAL AND THE MARKS RULE.

• Author: Toepfer, Owen P.
• Position: Abortion admitting privilege rulings

Why then Ile fit you. Hieronymo's mad againe. (1) INTRODUCTION

In Thomas Kyd's early Elizabethan play, The Spanish Tragedy, Don Hieronimo--a member of the King of Spain's court--seeks to exact revenge on the men who murdered his son, Horatio. (2) When courtiers ask Hieronimo to stage a play for them, he uses the opportunity to avenge his son in his madness. (3) Because the murderers do not know that Hieronimo has found them out, he is able to convince them to be actors in the play. (4) Hieronimo suggests that each actor in the play speak a different language, and he replaces the prop daggers with real daggers with which he murders the murderers during the performance. (5) After the play, Hieronimo cuts his own tongue out so that he cannot speak under torture. (6) A similar drama unfolds with respect to the Marks rule and a recent Supreme Court case, June Medical Services L.L.C. v. Russo. (7)

Over forty years ago in Marks v. United States, the Supreme Court held 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.'" (8) For example, in a 4-1-4 decision (i.e., plurality-concurrence-dissent), the single-Justice concurrence will become binding precedent if it is the "narrowest" of the two opinions supporting the judgment--even though the four-Justice plurality commanded more votes.

Academics have decried the Marks rule as uneconomical, not administrable, and likely to create confusion among lower courts. (9) Among judges, Marks analysis has come to be known as a "vexing task." (10) Indeed, no agreement exists among the federal circuit courts of appeals on the definition of "narrowest," (11) nor has the Supreme Court offered guidance by defining the term--likely due in part to the fact that the Justices themselves often cannot agree on how Marks applies. (12) The confusion has led to the proliferation of "Marks disputes" (13) and a number of circuit splits. (14) And as with any doctrine whose content is contested and underdetermined among lower courts, the single most outcome-determinative factor in a Marks-implicated case may simply be the circuit that is deciding it.

A contingent of academics has recently been asking the Court to abolish--or at least clarify or alter--the Marks rule in recent years. (15) In the face of such supplication, the Court continues to cite the rule with approval and without instruction on how to apply it. (16) In its 2018, 2019, and 2020 opinions, the Court cited the rule four times in total (17)--a relatively high rate of citational recurrence in the U.S. Reports. (18) The Court, Hieronimo-like, has left lower courts in Babel and bitten out its tongue, refusing (for now) to clarify the meaning of "narrowest."

If one thing is clear, it is that the Marks rule is not going anywhere anytime soon. (19) Lower courts must continue to contend with that one consequential word: narrowest. Courts are already doing so with respect to one recent Supreme Court case from the 2019 term, June Medical Services L.L.C. v. Russo, a 4-1-4 decision in which a majority of the Justices invalidated a Louisiana admitting privileges law called Act 620. (20) Act 620 required every Louisiana abortion provider to obtain admitting privileges at a hospital within a thirty-mile radius of the clinic at which he or she performed or induced abortions. (21) Abortion providers brought a facial challenge questioning the constitutionality of Act 620, which was nearly identical to a Texas statute that the Supreme Court invalidated in Whole Woman's Health v. Hellerstedt in 2016. (22)

In his plurality opinion joined by three other Justices, Justice Breyer voted to invalidate Act 620 by applying the benefits-burdens balancing test, which he believes Whole Woman's Health v. Hellerstedt requires. (23) Chief Justice Roberts, in a concurring opinion written for himself alone, supplied the fifth judgment-supportive vote necessary for the law's invalidation, but he instead invoked stare decisis and applied the undue burden standard of Planned Parenthood of Southeastern Pennsylvania v. Casey (24) as applied by Whole Woman's Health. (25) Crucially, the Chief Justice disagrees with the plurality's contention that Whole Woman's Health augmented Casey's undue burden standard. (26)

This Note, proceeding in three parts, describes the history of the Court's abortion jurisprudence, evaluates the current state of the Marks rule, and demonstrates that Chief Justice Roberts's concurrence in June Medical is the controlling opinion for Marks purposes under each definition of "narrowest" that several federal circuit courts of appeals employ. Part I first traces the historical arc of abortion jurisprudence from Roe v. Wade to June Medical and thereafter provides background on the history of and academic reactions to the Marks rule. Part II considers the various approaches to the Marks rule taken by the several federal circuits and how each approach would treat the Marks dispute that June Medical presents. Part III then considers further the potential implications, immediate and remote, of the application of the Marks rule to June Medical and of the conclusion that the Chief Justice's concurrence has the strongest claim to precedential effect.

1. BACKGROUND

   1. A Ballad of Battling Standards: Abortion Jurisprudence Before June Medical

      Unlike many of the landmark abortion cases in the United States, June Medical did not really announce any new standard of review for evaluating abortion restrictions--it was simply about application of precedent to a set of facts. Yet the decision to apply or not to apply the benefits-burdens standard of Whole Woman's Health (27) to Louisiana's admitting privileges law was necessarily going to be a consequential one, seeing that Justice Breyer's view of the Whole Woman's Health standard is broader than some of the standards that came before it, like the undue burden standard of Casey. (28) Given that the central disagreement between the plurality and concurrence in June Medical is what exactly the proper standard of review for challenged abortion restrictions is, a brief overview of the relevant caselaw is in order.

      (1). Roe v. Wade and Strict Scrutiny

      Before the landmark Supreme Court case of Roe v. Wade (29) in 1973, state legislatures were generally free to regulate abortion in whatever ways they saw fit: abortion was either outlawed or significantly restricted in forty-six U.S. states. (30) In a single move, the Supreme Court would "[sweep] aside all of these laws and replace[ ] them with a new rule and regulatory framework of its own making," (31) thus hatching the jurisprudential beast--often morphing, never fully fledged--that was to grow into U.S. abortion law.

      The Supreme Court in Roe v. Wade declared for the first time that abortion restrictions implicate an unenumerated, fundamental right to privacy grounded in the Due Process Clause of the Fourteenth Amendment. (32) Such reasoning would have seemed fantastic and shocking had not the path been cleared for such jurisprudential innovation by a few prior decisions. It was against a backdrop of Supreme Court cases that gradually situated certain family matters within the protective reach of the right to privacy that the Court decided that abortion ought to receive similar protection. (33)

      The case most demonstrative of the sort of creative reasoning that cleared the way for Roe is Griswold v. Connecticut, in which the Court found a right to privacy in the "penumbras" created by the "emanations" of no fewer than five Amendments in the Bill of Rights: the First, Third, Fourth, Fifth, and Ninth. (34) The Griswold Court found that a law restricting the use of contraceptives was unconstitutional, as it violated this right to privacy. (35) Eight years later, the Roe Court held that the right to privacy also protected the right to abortion--but the right was no longer penumbral (at least in the context of abortion). (36) Rather, the Court (unconfidently) found the right to privacy buried in the Fourteenth Amendment's procedural guarantees. (37)

      By placing a woman's decision to terminate her pregnancy within the "fundamental right[ ]" of privacy, the Court ensured that the proper standard of judicial review for abortion restrictions would be "strict scrutiny"--the highest and most stringent standard of review. (38) Under a strict scrutiny regime, a Court may only find justification for legislative regulation of a fundamental right if there is a "compelling state interest" in regulating that right. (39) Such regulation, moreover, must be "narrowly drawn to express only the legitimate state interests at stake." (40) Most challenged laws do not survive strict scrutiny. (41)

      In the context of abortion, the Court in Roe contemplated that "[a]t some point in pregnancy" the state attains interests (which become increasingly compelling throughout gestation) in "[maternal] health, in maintaining medical standards, and in protecting potential [human] life." (42) According to Roe's (now inoperative) trimester framework, a state could not regulate abortion before the end of the first trimester. (43) After "approximately the end of the first trimester," a state's interest in maternal health would be sufficiently "compelling" to justify regulating abortion in ways related to maternal health. (44) And after fetal viability, a state's interest in potential life would be sufficiently "compelling" to justify regulation and proscription of most abortions. (45) This last directive has become known as Roe's "central holding"--i.e., that a state cannot ban "nontherapeutic" abortions before fetal viability. (46)

      The thread of Roe's central holding weaved its way through the abortion cases that percolated up to the Supreme Court in the 1970s and '80s, (47) but there...