William Baude on Judge Easterbrook's Reason for Not Hearing an Indiana Abortion Case

Can lower courts decide novel abortion cases?

In late August, a panel of the Seventh Circuit affirmed an injunction against an Indiana abortion statute, over one judge's dissent. (The statute requires parents to be notified in some circumstances that their child is getting an abortion without their consent.)

Today, the full Seventh Circuit decided not to rehear the case en banc, by a 6-5 vote. One of those judges, Judge Frank Easterbrook, joined by another, Judge Diane Sykes, wrote an opinion explaining his decision not to rehear the case. These judges are not fans of the Supreme Court's abortion jurisprudence, so their reasoning was interesting. For one thing, Judge Easterbrook explained, the Supreme Court has agreed to hear an abortion case in a similar procedural posture out of Louisiana (though dealing with a different kind of law), and that might shed some light.

Read more at The Volokh Conspiracy