Health Law

7th Circuit creates clear split on viability of balancing test used to evaluate abortion restrictions

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The 7th U.S. Circuit Court of Appeals at Chicago has ruled that a balancing test should still be used to evaluate abortion restrictions, creating a clear circuit split on the issue.

The appeals court ruled Friday that the U.S. Supreme Court’s June 2020 decision in June Medical Services v. Russo did not overrule a prior decision that adopted the balancing test, Law360 reports.

The decision puts the 7th Circuit at odds with the St. Louis 8th Circuit at St. Louis and the 6th Circuit at Cincinnati.

Like the 7th Circuit, a panel of the 5th Circuit at New Orleans ruled that the balancing test still applies. But the full 5th Circuit vacated the decision and granted an en banc review. The full 5th Circuit is expected to announce its decision soon, according to Law360.

In June Medical Services, the Supreme Court struck down a Louisiana abortion law requiring doctors at abortion clinics to have admitting privileges at nearby hospitals. Chief Justice John G. Roberts wrote a concurrence giving the court’s liberal justices a fifth vote to strike down the law.

Roberts’ concurrence said precedent set in Whole Woman’s Health v. Hellerstedt in 2016 required the court to overturn the law. He added, however, that he rejected the balancing test used in Whole Woman’s Health. Instead, he said, abortion laws should be evaluated under the “undue burden” framework established in the 1992 Supreme Court decision reaffirming the right to abortion, Planned Parenthood v. Casey.

In a dissent, Justice Brett M. Kavanaugh noted that Roberts got four more votes to reject the balancing test from the court’s conservative justices.

In a pending case, Mississippi is asking the Supreme Court to address whether a balancing test still applies. The petition was filed shortly before Justice Amy Coney Barrett joined the court.

The 7th Circuit case is Planned Parenthood of Indiana and Kentucky v. Box. The appeals court said Supreme Court precedent “does not allow dicta in a nonmajority opinion to overrule an otherwise binding precedent.”

The 7th Circuit decision upheld an injunction blocking Indiana’s parental notification law for minors seeking abortions, the Indiana Lawyer reports.

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