This Note, proceeding in three parts, describes the history of the Court’s abortion jurisprudence, evaluates the current state of the Marks rule, and demonstrates that Chief Justice Roberts’s concurrence in June Medical is the controlling opinion for Marks purposes under each definition of “narrowest” that several federal circuit courts of appeals employ. Part I first traces the historical arc of abortion jurisprudence from Roe v. Wade to June Medical and thereafter provides background on the history of and academic reactions to the Marks rule. Part II considers the various approaches to the Marks rule taken by the several federal circuits and how each approach would treat the Marks dispute that June Medical presents. Part III then considers further the potential implications, immediate and remote, of the application of the Marks rule to June Medical and of the conclusion that the Chief Justice’s concurrence has the strongest claim to precedential effect.
Owen P. Toepfer,
June Medical and the Marks Rule,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol96/iss4/16