Judge Willett (CA5) Finds That June Medical Rendered Whole Woman's Health An "Invalid Legal Standard"

Willett agrees with Justice Kavanaugh, and the Eighth Circuit, in applying the Marks Rule to June Medical.


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.

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  1. Wait, help me out here … what?

    Applying the Marks rule allows the court to reject the cost benefit analysis implied by WWH. So it goes back to the Casey standard. Fine.

    But you said that Texas sought a stay in WWH itself (I presume the case is still litigating in the lower courts on subissues). Robert’s explicitly upheld WWH. At least, he found that the law at issue is still unconstitutional. So it doesn’t matter if the standard changed. The law is still unconstitutional, regardless of the reasoning.

    So, I don’t understand what basis there is to Willetts position. And do we generally ignore reasoning in Marks cases anyhow? And we absolutely do not do this sort of vote counting … if a majority signed something, that’s a majority. We don’t pick at concurrence to see if one side or another would agree with this position.

    It may be valid to hold that in future cases in different issues you apply the casey standard and not WWH. But in a case with exactly the same set of issues … no, absolutely not.

    At the very least, a 4 judge group wanted to overrule WWH itself. If Robert’s wanted to, he could have signed on. Marks allows the solo judge to override the will of the 4 judges, but only when his opinion is interpreted as narrowly as possible. This isn’t a narrow reading.

    And finally, regardless of any reasoning provided, a majority still signed onto the judgment. The judgment was in June, even strictly confined to the facts, was that this law is unconstitutional. Debate Marks in another case. Not here. .

  2. Maybe we should just stop murdering babies and no one would have to worry about this. Novel idea there.

    1. Or do the opposite and stop calling fetuses “babies”. Novel idea there too.

    2. If you have information concerning the murder of a single baby, Jimmy the Dane, the sole reasonable course for any decent person would be to inform the relevant law enforcement authority without delay.

      If you do not have such information, Jimmy the Dane, the sole reasonable course for a decent person would be to stop spouting fairy tale-based nonsense whenever competent adults are attempting to engage in reasoned debate.

      1. Since when do you think murdering babies is reasonable?

        1. I think murdering babies is even less reasonable than believing superstitious gibberish after the age of 12 or so. Childhood indoctrination is an excuse for only so long, clingers.

      2. Let’s get real. The Supreme Court itself called the thing killed a few inches on the other side of the Texas-Mexico border, to whom the Bill of Rights is 100% equally inapplicable, a “teenager.” Let’s stop this nonsensical pretense that just because the Bill of Rights doesn’t apply, basic human terms of appelation don’t either.

        1. It’s not a baby though.

          1. The whole using the definition of “human” to justify evil, immoral, and unethical policies was wrong when it was used to justify slavery, was wrong when it was used to justify genocide, and is wrong to justify the systematic murder of unborn babies.

            1. Unless you’re wrong.

              That’s the issue – you come in 100% sure you’re right and all who disagree are villains. Great if you’re in some morality play, but unable to socially function in the real world.

            2. Unborn babies is a contradiction in terms. Babies are organisms that have already been born.

          2. It’s not a baby though.

            That’s not the technical term used by biologists in writing science textbooks, but it’s the term used in common parlance. Nobody in history has ever said to a pregnant woman, “Do you know the sex of the fetus?” No pregnant woman in history has ever said, “I just felt the fetus kick.”

            1. It’s a context and intent thing.

              People calling abortion killing babies are trying to use semantics to sell you something. Or, in Jimmy’s case, convince himself that the world is black-and-white.

            2. But David, there are multiple words that have legal or scientific definitions totally at odds with common parlance. Just because a defendant is batshit crazy doesn’t make him legally insane.

          3. Roe established a sate interest at viability. At some point, viability would include a consideration of the advancements in science/medicine for the fetus surviving outside the womb. Late-term abortion and partial-birth abortions are reasonably regulating and stopping abortions/killings after the point of viability. It is stopping the birth so that you can terminate. There’s a very fine line between partial-birth and infanticide. Virginia Governor Northam recorded comments about delivering the baby, provide comfort, and then making a decision is an example of infanticide not abortion. You want science, consider viability at some point in your analysis.

  3. Although I don’t doubt the Court will overrule the Whole Woman’s standard at some point, Roberts’ analysis of that standard was dicta. Since when does the Marks rule apply to dicta?

  4. Some advice to conservatives on the circuit courts: Do what Roberts says. If you show an extreme eagerness to overrule prior cases on similar facts, let alone the prior case itself, you will be swatted down in a ruling that bolsters the prior cases. Roberts made it clear he wants orderly procedures. You have to give him the order ge demands, or he will vote against you.

    Like it or not, he favors order over the merits even when he might agree with you on the merits. If you create disorder, you will lose.

    Overruling Whole Womens Health based on a Roberts opinion demanding stare decisis adherence to it is the epitome of disorder. Do not prod Roberts into barfing on you. He will.

  5. The explanation for the actions of Chief Justice Roberts in June Medical. Make clear the legal standard of Casey was upheld not the 4/3 smaller majority of Whole Women’s. There never has been a full majority (5 votes) for anything other than Casey’s “is there a substantial burden” test. The facts/statute requiring admitting privileges was settled but, the legal standard was the issue for the Chief Justice. Whole Women’s was being interpreted as placing an initial burden on the State to establish that any regulation (big/small/otherwise) was a benefit. Only after establishing a benefit would Whole Women allow the analysis to proceed to the burden. The Chief Justice “took the arrows” to maintain the standard of Casey.

  6. Yet another problem to be solved by enlargement of the Supreme Court.

    Universal health care will be similar. One act, broad benefit.

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