                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-2879
                        ___________________________

                       Frederick W. Hopkins, M.D., M.P.H.

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

 Larry Jegley, Prosecuting Attorney for Pulaski County; Steven L. Cathey, M.D.,
 Chair of the Arkansas State Medical Board; Robert Breving, Jr., M.D. officer and
   member of the Arkansas State Medical Board, and successors in office, in his
 official capacity; Bob Cogburn, M.D., officer and member of the Arkansas State
    Medical Board, and successors in office, in his official capacity; William F.
  Dudding, M.D., officer and member of the Arkansas State Medical Board, and
successors in office, in his official capacity; Omar Atiq, M.D.,officer and member
   of the Arkansas State Medical Board, and successors in office, in his official
    capacity; Veryl D. Hodges, D.O., officer and member of the Arkansas State
  Medical Board, and successors in office, in his official capacity; Marie Holder,
officer and member of the Arkansas State Medical Board, and successors in office,
in her official capacity; Larry D. Lovell, officer and member of the Arkansas State
    Medical Board, and successors in office, in his official capacity; William L.
  Rutledge, M.D., officer and member of the Arkansas State Medical Board, and
 successors in office, in his official capacity; John H. Scribner, M.D., officer and
   member of the Arkansas State Medical Board, and successors in office, in his
   official capacity; Sylvia D. Simon, M.D., officer and member of the Arkansas
  State Medical Board, and successors in office, in her official capacity; David L.
    Staggs, M.D., officer and member of the Arkansas State Medical Board, and
   successors in office, in his official capacity; John B. Weiss, M.D., officer and
   member of the Arkansas State Medical Board, and successors in office, in his
                                    official capacity

                      lllllllllllllllllllllDefendants - Appellants
                              ------------------------------

                  Eagle Forum Education & Legal Defense Fund

                 lllllllllllllllllllllAmicus on Behalf of Appellant(s)

  National Association of Social Workers; Arkansas Abortion Support Network;
 Pennsylvania Coalition Against Rape; Margaret Drew; State of New York; State
 of California; State of Connecticut; State of Delaware; State of Hawaii; State of
Illinois; State of Iowa; State of Maine; State of Maryland; State of Massachusetts;
State of Oregon; State of Pennsylvania; State of Vermont; State of Virginia; State
   of Washington; District of Columbia; American College of Obstetricians and
         Gynecologists; Biomedical Ethicists; Constitutional Law Scholars

                   lllllllllllllllllllllAmici on Behalf of Appellee(s)
                                        ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                           Submitted: December 13, 2018
                             Resubmitted: July 9, 2020
                              Filed: August 7, 2020
                                    [Published]
                                  ____________

Before SMITH, Chief Judge, WOLLMAN and GRASZ, Circuit Judges.
                             ____________

PER CURIAM.

      The Pulaski County Prosecuting Attorney and officers and members of the
Arkansas State Medical Board appeal the district court’s grant of a preliminary
injunction preventing enforcement of four state laws that regulate abortion. The 91st
Arkansas General Assembly of 2017 enacted the following: (1) the Arkansas Unborn

                                           -2-
Child Protection from Dismemberment Abortion Act, Ark. Code Ann. §§ 20-16-1801
to 20-16-1807; (2) the Sex Discrimination by Abortion Prohibition Act, id. §§ 20-16-
1901 to 20-16-1910; (3) an amendment concerning the disposition of fetal remains,
id. §§ 20-17-801 to 20-17-802; and (4) an amendment concerning the maintenance
of forensic samples from abortions performed on a child, id. § 12-18-108(a)(1).

       On June 29, 2020, the Supreme Court issued its opinion in June Medical
Services L. L. C. v. Russo, 140 S. Ct. 2103 (2020). In that case, the Court held
unconstitutional a Louisiana law requiring doctors who perform abortions to have
admitting privileges at a nearby hospital. Justice Breyer, writing for a plurality of the
justices, concluded that “the extensive record [in the case] . . . support[ed] the District
Court’s findings of fact,” which “mirror[ed] those made in Whole Woman’s Health[1]
in every relevant respect.” Id. at 2113. As a result, the plurality held unconstitutional
the Louisiana admitting-privileges law.

       Chief Justice Roberts provided the critical fifth vote in favor of striking down
the Louisiana admitting-privileges law. But he concurred in the judgment, not the
plurality’s reasoning. Id. at 2133 (Roberts, C.J., concurring in judgment). Chief
Justice Roberts acknowledged that he had “joined the dissent in Whole Woman’s
Health” and expressed his continued belief “that the case was wrongly decided.” Id.
Nonetheless, Chief Justice Roberts agreed with the plurality that “Louisiana’s law
cannot stand under [the Court’s] precedents.” Id. at 2134. Under “[t]he legal doctrine
of stare decisis,” Chief Justice Roberts explained, “absent special circumstances, [the
Court must] . . . treat like cases alike.” Id. He concluded that because the Louisiana
admitting-privileges law “impose[d] a burden on access to abortion just as severe as
that imposed by the Texas law, for the same reasons,” it is unconstitutional. Id.




       1
           Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).

                                           -3-
       Relevant to the present case, Chief Justice Roberts discussed at length the
undue burden standard articulated in Planned Parenthood of Southeastern Pa. v.
Casey, 505 U.S. 833 (1992) (plurality opinion), in which the Court held that a state
cannot “impose an undue burden on the woman’s ability to obtain an abortion.” Id.
at 2135. Chief Justice Roberts rejected the “observation” made in Whole Woman’s
Health and again by the plurality “that the undue burden standard requires courts to
weigh the law’s asserted benefits against the burdens it imposes on abortion access.”
Id. (internal quotation omitted). According to Chief Justice Roberts, “[r]ead in
isolation from Casey, such an inquiry could invite a grand ‘balancing test in which
unweighted factors mysteriously are weighed’” and lead to arbitrary results. Id.
(quoting Marrs v. Motorola, Inc., 577 F.3d 783, 788 (7th Cir. 2009)). In the context
of abortion,

      courts applying a balancing test would be asked in essence to weigh the
      State’s interests in “protecting the potentiality of human life” and the
      health of the woman, on the one hand, against the woman’s liberty
      interest in defining her “own concept of existence, of meaning, of the
      universe, and of the mystery of human life” on the other.

Id. at 2136 (quoting Casey, 505 U.S. at 851, 871). “Pretending that we could pull that
off,” Chief Justice Roberts observed, “would require us to act as legislators, not
judges.” Id.

       Chief Justice Roberts also addressed the discretion courts must afford to
legislatures. He pointed out that “[n]othing about Casey suggested that a weighing
of costs and benefits of an abortion regulation was a job for the courts.” Id. (emphasis
added). Instead, he emphasized that, in the abortion context, “state and federal
legislatures [have] wide discretion to pass legislation in areas where there is medical
and scientific uncertainty.” Id. (alteration in original) (emphases added) (quoting
Gonzales v. Carhart, 550 U.S. 124, 163 (2007)).


                                          -4-
       According to Chief Justice Roberts, the appropriate inquiry under Casey is
whether the law poses “a substantial obstacle” or “substantial burden, not whether
benefits outweighed burdens.” Id. at 2137. To the extent that Casey “discussed the
benefits of the regulations,” it did so “in considering the threshold requirement that
the State have a ‘legitimate purpose’ and that the law be ‘reasonably related to that
goal.’” Id. at 2138 (quoting Casey, 505 U.S. at 878, 882). “So long as that showing
is made,” Chief Justice Roberts concluded, “the only question for a court is whether
a law has the ‘effect of placing a substantial obstacle in the path of a woman seeking
an abortion of a nonviable fetus.’” Id. (quoting Casey, 505 U.S. at 877). Chief Justice
Roberts “adhere[d] to the holding of Casey, requiring a substantial obstacle before
striking down an abortion regulation.” Id. at 2139. As a result, Chief Justice Roberts
concluded that “[i]n this case, Casey’s requirement of finding a substantial obstacle
before invalidating an abortion regulation is therefore a sufficient basis for [striking
down the Louisiana admitting-privileges law], [just] as it was in Whole Woman’s
Health.” Id. Nothing in Casey required “consideration of a regulation’s benefits.” Id.

       Chief Justice Robert’s vote was necessary in holding unconstitutional
Louisiana’s admitting-privileges law, so his separate opinion is controlling. See
Marks v. United States, 430 U.S. 188, 193 (1977) (explaining that when “no single
rationale explaining the result [of a case] enjoys the assent of five Justices, ‘the
holding of the Court may be viewed as that position taken by those Members who
concurred in the judgments on the narrowest grounds’” (quoting Gregg v. Georgia,
428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.))). In
light of Chief Justice Roberts’s separate opinion, “five Members of the Court
reject[ed] the Whole Woman’s Health cost-benefit standard.” June Med. Servs., 140
S. Ct. at 2182 (Kavanaugh, J., dissenting).

       Here, the district court—without the benefit of Chief Justice Roberts’s separate
opinion in June Medical—applied the Whole Woman’s Health cost-benefit standard
to the challenged laws. See Hopkins v. Jegley, 267 F. Supp. 3d 1024, 1055 (E.D. Ark.

                                          -5-
2017), amended, No. 4:17-CV-00404-KGB, 2017 WL 6946638 (E.D. Ark. Aug. 2,
2017) (“The undue burden analysis requires this Court to ‘consider the burdens a law
imposes on abortion access together with the benefits those laws confer.’” (quoting
Whole Woman’s Health, 136 S. Ct. at 2309)).2 In addition, the district court relied on


      2
        See also id. (“When applying the undue burden test, this Court must ‘weigh[]
the asserted benefits against the burdens.’” (alteration in original) (quoting Whole
Woman’s Health, 136 S. Ct. at 2310)); id. at 1055–56 (“The regulation will not be
upheld unless the benefits it advances outweigh the burdens it imposes.”); id. at 1056
(“Defendants also argue that the Court should not engage in a balancing test when
conducting the undue burden analysis . . . . The Court rejects this argument.”); id. at
1064 (“In Whole Woman’s Health, the Supreme Court clarified that the undue burden
analysis ‘requires that courts consider[] the burdens a law imposes on abortion access
together with the benefits those laws confer.’” (quoting Whole Woman’s Health, 136
S. Ct. at 2309)); id. at 1064 (“Therefore, the Court concludes that the D & E Mandate
does not ‘confer[] benefits sufficient to justify the burden upon access that [it]
imposes.” (alterations in original) (quoting Whole Woman’s Health, 136 S. Ct. at
2299); id. at 1070 (“In Whole Woman’s Health, the Supreme Court clarified that this
undue burden analysis ‘requires that courts considers the burdens a law imposes on
abortion access together with the benefits those laws confer.’” (quoting Whole
Woman’s Health, 136 S.Ct. at 2309)); id. at 1073 (“When certain records related to
a specific medical issue are requested, unless the records are transmitted and received
very quickly, any medical benefit of waiting for the records is outweighed by the fact
that delaying abortion care increases the risks associated with the procedure for the
patient.” (internal citation omitted)); id. at 1077 (“When certain records related to a
specific medical issue are requested, unless the records are transmitted and received
very quickly, any medical benefit of waiting for the records is outweighed by the fact
that delaying abortion care increases the risks associated with the procedure for the
patient.”); id. at 1079 (“The burdens of the [Medical Records] Mandate will
substantially outweigh its benefits, based on the record before this Court for the
reasons explained.”); id. at 1092 (“[T]he Whole Woman’s Health Court said . . . ‘the
virtual absence of any health benefit’ from the challenged hospital affiliation
requirement was a factor to be weighed in making an undue burden ruling. Balancing
is therefore required.” (internal citation omitted) (quoting Whole Woman’s Health,
136 S. Ct. at 2313)); id. at 1098 (“In Whole Woman’s Health, the Supreme Court


                                         -6-
Whole Woman’s Health’s “holding that the ‘statement that legislatures, and not
courts, must resolve questions of medical uncertainty is . . . inconsistent with this
Court’s case law.’” Id. at 1058 (alteration in original) (quoting Whole Woman’s
Health, 136 S. Ct. at 2310). Chief Justice Roberts, however, emphasized the “wide
discretion” that courts must afford to legislatures in areas of medical uncertainty.
June Med. Servs., 140 S. Ct. at 2136 (Roberts, C.J., concurring in judgment) (quoting
Gonzales, 550 U.S. at 163).

      As a result, we vacate the district court’s preliminary injunction and remand for
reconsideration in light of Chief Justice Roberts’s separate opinion in June Medical,
which is controlling, as well as the Supreme Court’s decision in Box v. Planned
Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780 (2019) (per curiam).
                        ______________________________




clarified that this undue burden analysis ‘requires that courts considers the burdens
a law imposes on abortion access together with the benefits those laws confer.’”
(quoting Whole Woman’s Health, 136 S. Ct. at 2309)).


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