On Friday, a 2-1 appellate panel of the Seventh Circuit consisting of Judge Stephen Kanne (dissenting), Judge Illana Rovner, and Judge David Hamilton (authoring the majority opinion) proclaimed that the Marks doctrine barred the enactment of an Indiana statute, Act 404, that sought to require minors to provide parents with notice prior to seeking judicial bypass for an abortion.
The Marks doctrine —derived from the case of Marks v. United States (Marks)— allows a Supreme Court of the United States case to have precedential value with merely a plurality opinion if five justices issue concurring opinions with some narrow commonality between said concurrences. In the event that such commonality can be found, Marks ruled that the narrowest interpretation of concurring common thread would become the binding precedent.
In 2019, the plaintiff-appellee, Planned Parenthood of Indiana & Kentucky, sued the Indiana State Department of Health, the defendant-appellant, to keep Act 404 from becoming law on grounds that it violated the constitutional prohibition on government’s ability to place undue burdens on access to abortions, as provided for in Planned Parenthood of Southeastern Pennsylvania v. Casey (Casey) and Whole Woman’s Health v. Hellerstedt (Hellerstedt). The Seventh Circuit agreed with the plaintiff, ruling that Hellerstedt and Casey indisputably required the State of Indiana to balance the harm of Act 404 against the benefit of the notice requirements, preferably via a showing in the legislative history of the Act.
The initial appellate panel ruled that the defendant lacked the appropriate evidentiary grounding to show that Act 404 ceased to serve as an undue burden to abortion access. The court concluded by taking judicial notice of “the lopsided evidence showing both the likely burden and the absence of appreciable benefit from the new notice requirement.”
The defendant appealed to the Supreme Court of the United States, which heard the case and vacated the initial decision of the Seventh Circuit to deactivate Act 404, and remanded for further review in light of June Medical Services LLC v. Russo (Russo). Russo involved a four-Justice plurality holding that a statute requiring abortion providers to acquire admittance to perform surgery in a local hospital within 30 miles of the clinic operated as an undue burden on access to abortion due to the distance between local hospitals in proximity to already limited abortion clinics. A fifth Justice signed on the result, but concurred only on the grounds that the statute failed to pass constitutional muster due to being overtly factually similar to a precedential case with a majority opinion. The fifth Justice otherwise proffered that statutes imposing a similar burden —but that were factually dissimilar to Russo— stood not to operate as a constitutionally impermissible undue burden under Casey and Hellerstedt.
The Seventh Circuit, on remand, concluded by upholding the ban on the notice requirements of Act 404 once again. The 2-1 appellate panel reasoned that Russo —as read through the understanding of pluralities under Marks— only stood for the binding precedent that statutes factually similar to the one in Russo were unconstitutionally impermissible, but left open the question of what other types of statutes might not be undue burdens on abortion access. The court explained that the viewpoint of the fifth Justice in Russo could only be recognized as dicta, with no precedential value, thus leaving the Seventh Circuit to declare Act 404 an undue burden under Casey and Hellerstadt until the Supreme Court issued a precedential opinion to the contrary.
Before the Seventh Circuit, Planned Parenthood is represented by the American Civil Liberties Union and its own counsel.