Almost a year ago, the Sixth Circuit reheard en banc Preterm-Cleveland v. Himes, which involves a constitutional challenge to an Ohio law that bans abortion where the reason for the abortion is that the fetus has or may have Down syndrome. After the en banc oral argument, the Supreme Court decided June Medical Services LLC v. Russo, 140 S. Ct. 2103 (2020), but no single opinion garnered a majority of the Justices. The parties in Preterm-Cleveland promptly filed dueling 28(j) letters that addressed June Medical and, specifically, the import of Chief Justice Roberts’s concurring opinion.

The en banc case remains pending. Now Professor Marc Spindelman of Ohio State’s Moritz College of Law has published this article in the Georgetown Law Journal Online that analyzes in greater depth the meaning of the Chief Justice’s concurring opinion and applies that analysis to Preterm-Cleveland.