The Volokh Conspiracy
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On August 7, an Eighth Circuit panel found that of that Chief Justice Roberts's concurrence in June Medical was controlling. As a result, the panel concluded, there are now five votes to reject Whole Woman's Health's benefit/burden framework. Now, Judge Willettt (5th Circuit) reached the same conclusion.
The Texas Attorney General sought a stay in the long-running Whole Woman's Health case. The majority (Judges Stewart and Dennis) denied the motion for a stay pending appeal. Judge Willett dissented, and would have granted the motion. He agreed with Justice Kavanaugh, and the Eighth Circuit, that there are five votes to overrule WWH. In light of the Marks rule, he called that case a "now-invalid legal standard."
I would grant the State of Texas's motion to stay the injunction.
The Supreme Court recently divided 4-1-4 in June Medical Services LLC v. Russo, 140 S. Ct. 2103 (2020). The opinions are splintered, but the takeaway seems clear: The three-year-old injunction issued by the district court in this case rests upon a now-invalid legal standard. See Hopkins v. Jegley, No. 17-2879, 2020 WL 4557687, at *1-2 (8th Cir. Aug. 7, 2020) (explaining that June Medical upended the previous cost-benefit balancing test for reviewing the constitutionality of abortion restrictions); June Med. Servs., 140 S. Ct. at 2182 (Kavanaugh, J., dissenting) ("Today, five Members of the Court reject the Whole Woman's Health cost-benefit standard.").
Judge Willett would have remanded the case so the district court can consider the effect of June Medical, which he called the "now-governing standard." The Supreme Court took this same approach in Box v. Planned Parenthood.
I would grant the motion to stay. Additionally, I would remand the underlying merits appeal to the district court for reconsideration under the now-governing legal standard. See Box v. Planned Parenthood of Ind. & Ky., Inc., No. 19-816, 2020 WL 3578672, at *1 (U.S. July 2, 2020) and Box v. Planned Parenthood of Ind. & Ky., Inc., No. 18-1019, 2020 WL 3578669 (U.S. July 2, 2020) (remanding "for further consideration in light of June Medical").
WWH drew a very favorable panel for the Fifth Circuit. It is unclear if this motions panel will also be the merits panel.