Each new decision added to the Supreme Court abortion jurisprudence confuses the standard of the right to abortion. Even when granting certiorari, the Supreme Court has consistently reaffirmed the fundamental right to abortion while continually altering the right to allow for new limits on an individual’s ability to obtain one, making the standard harder for the lower courts to apply and the circuits to be consistent. For example, the Supreme Court’s latest decision in June Medical v. Russo, the Supreme Court published a plurality decision making consistency and clarity in the constitutional right to access abortion nearly impossible. When the Supreme Court comes down in a plurality opinion, that opinion still has precedential effects. In Marks v. United States, the Supreme Court created the Marks Rule instructing lower courts to ascertain precedential effect in the narrowest common denominator of a plurality holding. However, using the Marks Rule to determine a controlling opinion has been deemed a “vexing task,” leaving many circuit splits in its wake. Using the Marks Rule to determine the controlling opinion in June Medical’s plurality is already plaguing lower court judges across the nation; circuits differ from holding that June Medical left the right to abortion unchanged to determining the plurality opinion overruled prior abortion precedent, creating variation and unreliability in access to reproductive rights by jurisdiction. The abortion debate has yet to hit its breaking point and state politics, as well as in judicial appointments.
The Marks Rule Misses the Mark: How the Seventh Circuit Correctly Determined the Precedential Effect of the Supreme Court's June Medical Plurality,
Seventh Circuit Rev.
Available at: https://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol17/iss1/2