Benjamin M. Parks
In 2014, the Louisiana Legislature passed Act 620, or Louisiana’s Unsafe Abortion Protection Act. The law’s basic requirement was that any physician providing abortions in the State of Louisiana had to obtain admitting privileges at a hospital within 30 miles of the location where that doctor performed abortions. Act 620 defined “admitting privileges” as being a member “of the medical staff of a hospital” and having “the ability to admit a patient and to provide diagnostic and surgical services to such patient.” Those who offered abortion services without admitting privileges could face up to $4,000 in fines for each violation. Like most abortion regulations, the Act was not without controversy. Opponents of the Act, including the Center for Reproductive Rights, characterized the law as a way for the State of Louisiana to restrict access to abortion because abortion providers who could not obtain admitting privileges would be required to shutter their clinics. Proponents of the Act argued that it protected women’s health and safety by ensuring that abortion-providing physicians with admitting privileges could treat their patients in hospitals should any complications arise from an abortion procedure.
II. June Medical Services L. L. C. v. Russo
In 2014, weeks before Act 620 was set to take effect, two abortion facilities and six Louisiana physicians providing abortion services filed suit in the U.S. District Court for the Middle District of Louisiana against the Louisiana Secretary of the Department of Health and Hospitals. In June Medical Services L. L. C. v. Russo, the plaintiffs sought a temporary restraining order and a preliminary injunction on the implementation of Act 620. As to the temporary restraining order, the district court declined to stay the law but prohibited the State from enforcing its penalties and directed the plaintiffs to keep the court informed as to their progress in securing admitting privileges. In June of 2015, after a six-day bench trial on the plaintiffs’ request for a preliminary injunction, the district court struck down Act 620 as unconstitutional. Immediately following the district court’s decision, the State asked the U.S. Fifth Circuit Court of Appeals to stay the district court’s injunction, and the court of appeals granted that stay. At the plaintiffs’ request, the U.S. Supreme Court issued its own stay, which left the preliminary injunction temporarily in effect. Two months later, the Supreme Court issued its ruling in Whole Woman’s Health v. Hellerstedt, declaring a Texas admitting privileges law nearly identical to Louisiana’s Act 620 unconstitutional.
In light of the Whole Woman’s Health decision, the Supreme Court remanded June Medical to the Fifth Circuit for reconsideration. The Fifth Circuit then remanded the case and allowed the district court to engage in further factfinding. The parties agreed that the district court could rule on the plaintiffs’ request for a permanent injunction, which the court then granted. Act 620, it ruled, did not protect women seeking an abortion; rather, it “would increase the risk of harm to women’s health by dramatically reducing the availability of safe abortion in Louisiana.” The State appealed, and the Fifth Circuit reversed, finding that Louisiana’s admitting privileges requirement presented “no substantial burden at all” on women seeking an abortion in Louisiana. The Fifth Circuit ruled that Act 620’s impact in Louisiana was “dramatically less” than that of the Texas law invalidated in Whole Woman’s Health.
Following the Fifth Circuit’s ruling, the plaintiffs filed a petition for certiorari, which the Supreme Court granted. On review, the Court first addressed the State’s argument that the plaintiffs did not have standing and that the proper parties to assert a claim were the patients themselves. A plurality made up of Justices Breyer, Ginsburg, Sotomayor, and Kagan struck down the State’s standing argument and held that the assertion of lack of standing was “belated” because the State had initially conceded that “there was no question that the physicians had standing.” According to the Court, the State could not raise an issue of standing nearly five years after conceding its existence. A decision to accept the State’s contention would reverse long-standing precedent––which the Supreme Court declined to overrule—and could have resulted in unknown implications on future challenges of abortion regulations.
The Supreme Court next considered the constitutionality of Act 620. Quoting Whole Woman’s Health, the June Medical Court outlined the constitutional test for determining whether an abortion regulation should stand, stating that “a statute which, while furthering [a] valid state interest has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.” Again directly citing Whole Woman’s Health, the Court explained that, in applying this standard, courts must “consider the burdens a law imposes on abortion access together with the benefits those laws confer.”
Upon examining the district court’s factual findings on how the law would impact abortion providers, the Supreme Court affirmed the lower court’s holding that Act 620 served no “relevant credentialing function.” The plaintiff-physicians’ applications for admitting privileges were “denied for reasons that had nothing to do with [the physicians’] ability to perform abortions safely.” For some hospitals, conditions for a grant of admitting privileges include in-hospital experience, the furnishing of data on “patient admissions and management, consultations and procedures performed,” and regular in-hospital care once admitting privileges are obtained. The June Medical Court accepted the plaintiff-physicians’ testimony that they could not meet these requirements because most of the physicians’ patients did not require hospital admission. Further, the Court found that some physicians could not secure admitting privileges because of opposition to abortion and the Louisiana medical community’s reluctance to be associated with an abortion provider. Considering the district court’s conclusion that Act 620 would impose a burden on Louisiana women’s access to abortion, the Supreme Court agreed and found that enforcement of Act 620 would leave only two abortion-providing physicians in Louisiana—one in Shreveport and one in New Orleans. The Act would also result in “longer waiting times, and increased crowding,” while forcing Louisiana women to travel longer distances to obtain an abortion—“burdens [which] . . . would fall disproportionately on poor women, who are least able to absorb them.”
Weighing the “law’s asserted benefits” of ensuring continuity of care against the “burdens [the] law impose[d] on abortion access,” the Supreme Court held that the lower court’s findings were “not clearly erroneous” and ruled that the State had not shown a requirement of admitting privileges would result in better treatment or better outcomes for Louisiana women obtaining an abortion. Ultimately, a plurality of the Court struck down the law as unconstitutional. Chief Justice Roberts filed a notable opinion concurring in the judgment. Although the Chief Justice agreed with the plurality’s final ruling that Act 620 was unconstitutional, he disagreed with the constitutional standards the plurality employed in reaching that conclusion.
In his concurrence, Chief Justice Roberts wrote that, under the legal doctrine of stare decisis, Act 620 was unconstitutional insofar as it imposed a burden on abortion access “just as severe” and “for the same reasons” as the Texas law that the Court struck down in Whole Woman’s Health. The Chief Justice went on to suggest that the June Medical plurality and the Court in Whole Woman’s Health misinterpreted the undue burden standard to require courts to “weigh the law’s asserted benefits against the burdens it imposes on abortion access.” Roberts stated that nothing in Planned Parenthood of Southeastern Pennsylvania v. Casey—where the Court first articulated the “undue burden” standard to be employed in assessing whether a law regulating abortion is constitutional––required courts to consider a law’s benefits in light of its burdens. Instead, Casey focused only on whether an abortion regulation presents a “substantial obstacle.” Justice Roberts offered that the correct constitutional standards are whether the State has a “legitimate purpose” and whether the law is “reasonably related to that goal.” Assuming those standards are satisfied, a court must determine whether an abortion regulation has the “effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” without examination of the law’s purported benefits.
III. Lower Court Rulings in the Wake of Justice Roberts’s Concurrence
Although Justice Roberts agreed with the result the plurality reached, his concurring opinion, which argued that Casey does not require a court to consider an abortion regulation’s asserted benefits, has since perplexed legal scholars and impacted lower court rulings. For example, fewer than two months after the Supreme Court’s ruling in June Medical, the Eighth Circuit Court of Appeals in Hopkins v. Jegley vacated a district court’s grant of a preliminary injunction that prevented the enforcement of four Arkansas laws regulating abortion. The Eighth Circuit found that Justice Roberts’s concurrence in June Medical set forth the controlling constitutional test in determining whether an abortion regulation should stand. The district court initially applied the Whole Woman’s Health “cost-benefit standard” because its ruling on the preliminary injunction was issued before the Supreme Court’s decision in June Medical. Because the district court issued its decision “without the benefit of Chief Justice Roberts’s separate opinion” in June Medical, the Eighth Circuit remanded the case for reconsideration in light of the Chief Justice’s concurrence. On remand, the district court utilized Justice Roberts’s framework and struck down each of the four Arkansas laws. The court found that the laws imposed a substantial and undue burden on abortion access, rendering them unconstitutional.
In Whole Woman’s Health Alliance v. Hill, the U.S. District Court for the Southern District of Indiana—which is part of the Seventh Circuit—took a different approach. The plaintiffs in Hill—abortion providers and non-profits—filed suit against the State of Indiana challenging 25 Indiana abortion regulations. After the court granted the plaintiffs’ motion for preliminary injunctive relief, the State filed a motion for summary judgment. The district court granted the motion in favor of the State regarding 9 of the laws but denied the motion as to the remaining 16. In issuing its ruling, the Hill court took a different approach than its neighbors in the Eighth Circuit. The court concluded that the Chief Justice’s June Medical concurrence was not “a new controlling rule for applying the undue burden test in abortion cases” and cited the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt as requiring the district court to weigh the laws’ benefits and burdens. With two conflicting decisions from neighboring circuits, just months after the Supreme Court’s June Medical ruling, uncertainty remains as to how the district and appellate courts will apply the “undue burden test” going forward. The Eighth Circuit’s decision in Hopkins and the Southern District of Indiana’s ruling in Hill indicates that a circuit split between the courts of appeals on the correct constitutional standard could be fast approaching. June Medical has left legal scholars uncertain as to whether courts must examine an abortion regulation’s purported benefits when considering its constitutionality.
IV. Precedential Effect of a Concurrence under Marks v. United States
The Hopkins and Hill courts’ disagreement, and the uncertainty surrounding the “undue burden test” after June, arises due to the nature of a plurality opinion and the test based on the Supreme Court’s decision in Marks v. United States. The Court in Marks ruled: “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.” This is the controlling rule for evaluating the precedential effect of a plurality opinion. In June, Chief Justice Roberts’s vote was necessary for the Supreme Court to strike down Act 620 as unconstitutional. Using the Marks Court’s reasoning, the Hopkins court held that the Chief Justice’s “separate opinion” controlled. Although Hopkins did not address the issue specifically, the court’s ruling demonstrates that it viewed the “narrowest grounds” of June Medical as the Supreme Court’s holding that Act 620 presented an undue burden to a woman’s right to an abortion and was therefore unconstitutional. In other words, under the Hopkins court’s view, June Medical’s holding was only this: Act 620 is unconstitutional. Chief Justice Roberts concurred in the judgment “on the narrowest ground” and, as a result, his opinion—that only the burdens of an abortion regulation must be examined—is binding legal precedent.
The Hill court, however, took the opposite stance. Although it recited the Marks rule, it held that the Marks rule does not apply when “a concurrence that provides the fifth vote necessary to reach a majority does not provide a common denominator for the judgment.” The court “interpret[ed] this guidance to mean that for the Chief Justice’s opinion to provide a controlling rule,” the Hill court had to find that “his opinion reflect[ed] the narrowest grounds of a common denominator shared with the plurality.” The State of Indiana in Hill argued that the “common denominator” in the analyses of the plurality and the Chief Justice was Casey’s standard, which “mandate[ed] the enjoining of a state law if it creates a substantial obstacle to choosing an abortion.” The court in Hill disagreed and ruled that Chief Justice Robert’s concurrence and the plurality’s opinion lacked a common denominator, as they employed different tests in evaluating Act. 620. Therefore, June Medical “did not hand down a new controlling rule for applying the undue burden test in abortion cases.” The Hill court instead “appl[ied] the constitutional standards set forth in . . . Casey and [Whole Woman’s Health v.] Hellerstedt” and cited Hellerstedt as requiring it to “consider the burdens a law imposes on abortion access together with the benefits those laws confer.”
Hopkins did not cite any Eighth Circuit jurisprudence containing a “common denominator” test to establish whether the Marks rule controls. However, even had the Hopkins court utilized such a test, the “common denominator” between Chief Justice Roberts’s June Medical concurrence and the plurality’s holding is the reliance of both on Casey—as the State of Indiana in Hill prudently noted—to find Act 620 unconstitutional Because such a “common denominator” exists, the Marks rule applies, and the Chief Justice’s concurrence is a controlling legal opinion. Even absent a search for a “common denominator,” which the Eighth Circuit does not seem to require, Marks makes clear that the Hopkins court’s finding is correct. Chief Justice Roberts concurred with the plurality on the “narrowest ground”: that Act 620 was unconstitutional because it presented an “‘undue burden’ on a woman’s constitutional right to choose to have an abortion.” Thus, his opinion, that the correct constitutional test in evaluating an abortion regulation requires a court to examine only the regulation’s burdens, is binding legal precedent according to Marks.
The plurality in June Medical struck down Act 620 after finding it imposed an “undue burden on a woman’s constitutional right to choose to have an abortion” and provided “no significant health-related benefits.” Although Chief Justice Roberts agreed with the result that the plurality reached, in his concurring opinion he asserted that Casey did not call for the Court to examine Act 620’s purported benefits; rather, Casey requires only that courts determine whether a law regulating abortion presented a “substantial obstacle” to a woman seeking an abortion. June Medical has left legal scholars uncertain concerning whether a court must examine an abortion regulation’s asserted benefits in determining whether the regulation is constitutional. Although the June Medical decision was rendered less than a year ago, it has paved the way for a circuit split in the future. The Hopkins and Hill courts’ holdings as to whether the Chief Justice’s concurrence is binding under the Marks rule represent the inevitability of a potentially wider, national circuit split. Although courts have interpreted the rule differently, Marks seemingly requires—as the Hopkins court held—the application of Chief Justice Roberts’ concurrence as controlling precedent.
 See 2014 La. Acts No. 620, codified at La. Rev. Stat. § 40:1061.19(A)(2)(a); Kate Smith, One of the Supreme Court’s Most Important Abortion Cases Since Roe v. Wade Has Just Begun, CBS News (Nov. 26, 2019, 10:21 AM), https://www.cbsnews.com/news/supreme-court-abortion-lawsuit-june-medical-services-v-gee-row-wade-2019-11-26/ [https://perma.cc/H83H-8V93].
 Id. § 40:1061.19(A)(2)(a).
 Id. § 40:1061.19(A)(2)(c).
 See Smith, supra note 1; Chloe Atkins, After Shift to the Right under Trump, Supreme Court to Hear Major Abortion Case from Louisiana, NBC News (Mar. 3, 2020, 7:13 AM), https://www.nbcnews.com/politics/2020-election/after-shift-right-under-trump-supreme-court-hear-major-abortion-n1147461 [https://perma.cc/QB4B-3J53].
 Smith, supra note 1.
 See June Med. Servs. L. L. C. v. Russo, 140 S. Ct. 2103, 2115 (2020).
 See Atkins, supra note 5; see also Facts about Louisiana’s Admitting Privileges Law, Louisiana Right to Life (Feb. 7, 2019), https://prolifelouisiana.org/facts-about-louisianas-admitting-privileges-law/ [https://perma.cc/SMP2-6AC8].
 June Med. Servs. L. L. C., 140 S. Ct. at 2113.
 Id. at 2114. The plaintiffs contended that Act 620 “force[d] every abortion provider [in Louisiana] to stop offering abortions” and asked the district court to enjoin the law. See Memorandum in Support of Plaintiff’s Appeal for TRO and Motion for Preliminary Injunction, June Med. Servs. L. L. C. v. Caldwell, No. 3:14-cv-525, 2014 WL 1293494 (M.D. La. Aug. 22, 2014).
 June Med. Servs. L. L. C., 140 S. Ct. at 2114.
 Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).
 June Med. Servs. L. L. C., 140 S. Ct. at 2114.
 Id. at 2116.
 Id. at 2117.
 Id. at 2116.
 Id. at 2117.
 Id. The State raised the standing issue in a cross-petition it filed in response to the plaintiff’s petition for certiorari. Id.
 Id. at 2108.
 Id. at 2118.
 See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2314 (2016); Sternberg v. Carhart, 530 U.S. 914, 922 (2000); Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 62 (1976); Doe v. Bolton, 410 U.S. 179, 188–89 (1973).
 See generally June Med. Servs. L. L. C., 140 S. Ct. at 2118–20.
 Id. at 2120.
 See Whole Woman’s Health, 136 S. Ct. at 2309. The Whole Woman’s Health Court looked to its prior holding in Planned Parenthood of Southeastern Pennsylvania v. Casey to articulate the constitutional test for abortion regulations, on which the June Medical Court relied. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 877 (1992).
 June Med. Servs. L. L. C., 140 S. Ct. at 2120.
 Id. at 2122–23.
 Id. at 2124.
 Id. at 2128.
 Id. at 2130.
 Id. at 2129.
 Id. at 2130.
 Id. at 2120.
 Id. at 2131.
 Id. at 2132.
 See id. at 2133–42.
 Id. at 2134 (Roberts, C.J., concurring).
 Id. at 2135 (Roberts, C.J., concurring).
 See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 877 (1992).
 See Casey, 505 U.S. at 878. The Court in Casey ruled that “[a]n undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion.” Id.
 June Med. Servs. L. L. C., 140 S. Ct. at 2136 (Roberts, C.J., concurring).
 Id. (Roberts, C.J., concurring).
 Id. at 2138 (Roberts, C.J., concurring).
 Id. (Roberts, C.J., concurring).
 See Hopkins v. Jegley, 968 F.3d 912 (8th Cir. 2020); Rachel Rebouche, Abortion Restrictions after June Medical Services, The Regulatory Review (Aug. 4, 2020), https://www.theregreview.org/2020/08/04/rebouche-abortion-restrictions-june-medical/ [https://perma.cc/H8CG-XC7A].
 See Hopkins, 968 F.3d at 914.
 Id. at 915.
 Id. at 916.
 See Hopkins v. Jegley, No. 4:17-cv-00404, 2021 WL 41927, at *1, *124 (E.D. Ark. Jan. 5, 2021).
 See Whole Woman’s Health All. v. Hill, No. 1:18-cv-01904, 2020 WL 5994460, at *1 (S.D. Ind. Oct. 9, 2020).
 Id. at *2.
 See id. at *55.
 See Hopkins v. Jegley, 968 F.3d 912, 916 (8th Cir. 2020).
 Whole Woman’s Health All., 2020 WL 5994460, at *1, *28.
 See id.
 See Hopkins, 968 F.3d at 916; Whole Woman’s Health All., 2020 WL 5994460, at *1, *28.
 See Rebouche, supra note 58; Adam Liptak, Supreme Court Strikes Down Louisiana Abortion Law, with Roberts the Deciding Vote, N.Y. Times (June 30, 2020), https://www.nytimes.com/2020/06/29/us/supreme-court-abortion-louisiana.html [https://perma.cc/V4ZB-BLE4] (“It would be hasty to conclude that Chief Justice Roberts was prepared to strike down other abortion restrictions or that he would vote to sustain the Roe decision.”).
 See Hopkins, 968 F.3d at 915; Whole Woman’s Health All., 2020 WL 5994460, at *26–27.
 See Marks v. United States, 430 U.S. 188, 193–96 (1977).
 Id. at 193.
 See id.
 See Hopkins, 968 F.3d at 915.
 Id. The court in Hopkins quoted specifically Marks’s holding that when “no single rationale explaining the result [of a case] 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.” Id.
 See id.
 See id.
 See id.
 See Whole Woman’s Health All. v. Hill, No. 1:18-cv-01904, 2020 WL 5994460, at *1, *26–28 (S.D. Ind. Oct. 9, 2020).
 Id. at *26.
 Id. at *27.
 Id. at *28.
 Id.; see Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2309 (2016).
 See generally Whole Woman’s Health All., 2020 WL 5994460, at *27.
 See generally Hopkins v. Jegley, 968 F.3d 912, 915 (8th Cir. 2020).
 See Whole Woman’s Health All., 2020 WL 5994460, at *27–28.
 See Hopkins, 968 F.3d at 915. The Eighth Circuit cited Marks but made no mention of a “common denominator” test accompanying the Marks rule. See id.
 See id.; see also Marks v. United States, 430 U.S. 188, 193–96 (1977).
 See June Med. Servs. L. L. C. v. Russo, 140 S. Ct. 2103, 2111 (2020).
 See Marks, 430 U.S. at 193–96.
 June Med. Servs, 140 S. Ct. at 2132
 Id. at 2134–38.
 See Rebouche, supra note 58; Liptak, supra note 74 (“It would be hasty to conclude that Chief Justice Roberts was prepared to strike down other abortion restrictions or that he would vote to sustain the Roe decision.”).
 See Hopkins v. Jegley, 968 F.3d 912, 916 (8th Cir. 2020); Whole Woman’s Health All., No. 1:18-cv-01904, 2020 WL 5994460, at *1, *28 (S.D. Ind. Oct. 9, 2020).
 See discussion supra regarding the Hopkins and Hill courts’ rulings.
 See discussion supra Part III.