The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In late August, a panel of the Seventh Circuit affirmed an injunction against an Indiana abortion statute, over one judge's dissent. (The statute requires parents to be notified in some circumstances that their child is getting an abortion without their consent.)
Today, the full Seventh Circuit decided not to rehear the case en banc, by a 6-5 vote. One of those judges, Judge Frank Easterbrook, joined by another, Judge Diane Sykes, wrote an opinion explaining his decision not to rehear the case. These judges are not fans of the Supreme Court's abortion jurisprudence, so their reasoning was interesting. For one thing, Judge Easterbrook explained, the Supreme Court has agreed to hear an abortion case in a similar procedural posture out of Louisiana (though dealing with a different kind of law), and that might shed some light.
But in any event, Judge Easterbrook goes on, court of appeals review in abortion cases is pointless:
For a court of appeals cannot decide whether requiring a mature minor to notify her parents of an impending abortion, when she cannot persuade a court that avoiding notification is in her best interests, is an "undue burden" on abortion. The "undue burden" approach announced in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), does not call on a court of appeals to interpret a text. Nor does it produce a result through interpretation of the Supreme Court's opinions. How much burden is "undue" is a matter of judgment, which depends on what the burden would be (something the injunction prevents us from knowing) and whether that burden is excessive (a matter of weighing costs against benefits, which one judge is apt to do differently from another, and which judges as a group are apt to do differently from state legislators). Only the Justices, the proprietors of the undue-burden standard, can apply it to a new category of statute, such as the one Indiana has enacted. Three circuit judges already have guessed how that inquiry would come out; they did not agree. The quality of our work cannot be improved by having eight more circuit judges try the same exercise. It is better to send this dispute on its way to the only institution that can give an authoritative answer.
I'm familiar with various arguments about whether and how lower courts must apply Supreme Court precedent, but I can't recall seeing the suggestion that there is a genre of Supreme Court precedent that a lower court simply "cannot" apply either way, so I thought it was worth noting.