`
`IN THE
`Supreme Court of the United States
`————
`
`LESLIE RUTLEDGE, in her official capacity as
`Attorney General of the State of Arkansas, et al.,
`Petitioners,
`
`v.
`
`LITTLE ROCK FAMILY PLANNING SERVICES, et al.,
`Respondents.
`
`————
`On Petition for a Writ of Certiorari to the
`United States Court of Appeals
`for the Eighth Circuit
`————
`PETITION FOR A WRIT OF CERTIORARI
`————
`
`
`
`OFFICE OF THE ARKANSAS
`ATTORNEY GENERAL
`323 Center St., Ste. 200
`Little Rock, AR 72201
`(501) 682-6302
`nicholas.bronni@
`arkansasag.gov
`
`LESLIE RUTLEDGE
`Arkansas Attorney General
`NICHOLAS J. BRONNI
`Solicitor General
`Counsel of Record
`VINCENT M. WAGNER
`Deputy Solicitor General
`ASHER STEINBERG
`MICHAEL A. CANTRELL
`DYLAN L. JACOBS
`Assistant Solicitors General
`JENNIFER L. MERRITT
`Senior Assistant Attorney
`General
`
`Counsel for Petitioners
`WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002
`
`
`
`QUESTION PRESENTED
`
`The question presented is:
`Whether the Fourteenth Amendment bars States
`from prohibiting abortions that are sought solely
`because of a prenatal diagnosis of Down syndrome.
`
`(i)
`
`
`
`ii
`PARTIES TO THE PROCEEDINGS BELOW
`
`Petitioners are Leslie Rutledge, in her official
`capacity as Attorney General of the State of Arkansas;
`Larry Jegley, in his official capacity as Prosecuting
`Attorney of Pulaski County; Matt Durrett, in his
`official
`capacity as Prosecuting Attorney
`of
`Washington County; Sylvia D. Simon, in her official
`capacity as Chairman of the Arkansas State Medical
`Board; Rhys L. Branman, Veryl D. Hodges, Brian T.
`Hyatt, Timothy C. Paden, Don R. Phillips, John H.
`Scribner, David L. Staggs, and, automatically
`substituted under Fed. R. App. P. 43(c)(2), Elizabeth
`Anderson, Edward “Ward Gardner,” and Betty
`Guhman, in their official capacities as members of the
`Arkansas State Medical Board; and, also automati-
`cally substituted under Fed. R. App. P. 43(c)(2), Jose
`Romero, in his official capacity as Secretary of the
`Arkansas Department of Health, the position formerly
`known as Director and State Health Officer of the
`Arkansas Department of Health, see Transformation
`and Efficiencies Act of 2019, sec. 2, 2019 Ark. Acts
`5486, 5498 (Apr. 11, 2019) (enacting Ark. Code Ann.
`25-43-108(d)(7)). They were defendants-appellants in
`the court of appeals.
`Respondents are Little Rock Family Planning
`Services, Planned Parenthood of Arkansas & Eastern
`Oklahoma, d/b/a Planned Parenthood of Great Plains,
`Stephanie Ho, and Thomas Tvedten. They were
`plaintiffs-appellees in the court of appeals.
`
`
`
`
`
`
`iii
`RELATED PROCEEDINGS
`
`Little Rock Family Planning Services v. Rutledge,
`No. 4:19-cv-00449-KGB (E.D. Ark.) (preliminary
`injunction entered Aug. 6, 2019).
`In re Rutledge, No. 20-1791 (8th Cir.) (judgment
`entered Apr. 22, 2020).
`Little Rock Family Planning Services v. Rutledge,
`No. 4:20-cv-00470-BSM (E.D. Ark.) (judgment entered
`June 11, 2020).
`Little Rock Family Planning Services v. Rutledge,
`No. 19-2690 (8th Cir.) (judgment entered Jan. 5, 2021).
`
`
`
`
`
`
`
`
`
`TABLE OF CONTENTS
`
`QUESTION PRESENTED ..................................
`PARTIES TO THE PROCEEDINGS BELOW ...
`RELATED PROCEEDINGS ...............................
`TABLE OF AUTHORITIES ................................
`OPINIONS BELOW ............................................
`JURISDICTION ..................................................
`CONSTITUTIONAL AND STATUTORY
`PROVISIONS INVOLVED ..............................
`INTRODUCTION ................................................
`STATEMENT ......................................................
`A. Down Syndrome and Selective Abortion .
`B. Arkansas’s Prohibition of Selective
`Abortion .....................................................
`C. Procedural History ....................................
`REASONS FOR GRANTING THE WRIT ..........
`I. The court of appeals’ decision conflicts
`with this Court’s precedent and
`is
`wrong. ........................................................
`A. Under this Court’s precedent, abor-
`tion regulations that reasonably serve
`a compelling state
`interest are
`constitutional. ......................................
`1. Before Casey, abortion regulations
`that reasonably furthered compel-
`ling interests were valid. ...............
`
`Page
`
`i
`ii
`iii
`vii
`1
`1
`
`1
`2
`4
`4
`
`9
`10
`12
`
`12
`
`12
`
`13
`
`(v)
`
`
`
`vi
`TABLE OF CONTENTS—Continued
`
`
`
`Page
`
`18
`
`22
`
`24
`
`25
`
`29
`
`29
`
`32
`34
`
`2. Under Casey, abortion regulations
`that reasonably further compel-
`ling interests are valid. ..................
`3. June Medical did not alter Casey’s
`test. .................................................
`B. Arkansas’s law reasonably furthers
`compelling interests in antidiscrim-
`ination. .................................................
`1. Arkansas’s
`interests
`are
`compelling.......................................
`2. Arkansas’s law reasonably serves
`its compelling interests. .................
`II. The court of appeals’ decision implicates
`a circuit split. ............................................
`III. The question presented is exceptionally
`important. .................................................
`CONCLUSION ....................................................
`APPENDIX
`APPENDIX A: Opinion, Court of Appeals for
`the Eighth Circuit (January 5, 2021) .............
`APPENDIX B: Preliminary Injunction, Dis-
`trict Court for the Eastern District of
`Arkansas (August 6, 2019) ............................. 21a
`APPENDIX C: The Arkansas Down Syn-
`drome Discrimination by Abortion Prohibi-
`tion Act, Ark. Code Ann. 20-16-2101 to 2107 . 239a
`
`
`1a
`
`
`
`
`
`vii
`TABLE OF AUTHORITIES
`
`CASES
`
`Page(s)
`
`17
`
`25
`
`25
`
`29
`
`Bellotti v. Baird,
`443 U.S. 622 (1979) ...................................
`Bd. of Dirs. of Rotary Club Int’l v. Rotary
`Club of Duarte,
`481 U.S. 537 (1987) ...................................
`Box v. Planned Parenthood of Ind. &
`Ky., Inc.,
`139 S. Ct. 1780 (2019) ........................ 8-9, 25, 27
`Brown v. Bd. of Educ.,
`347 U.S. 483 (1954) ................................... 3, 27
`Buck v. Bell,
`274 U.S. 200 (1927) ...................................
`City Council of L.A. v. Taxpayers for Vincent,
`466 U.S. 789 (1984) ...................................
`City of Akron v. Akron Ctr. For
`Reprod. Health,
`462 U.S. 416 (1983) ........... 15, 16, 17, 18, 23, 29
`Connecticut v. Menillo,
`423 U.S. 9 (1975) (per curiam) ........... 15, 16, 21
`EMW Women’s Surgical Ctr., P.S.C. v.
`Friedlander,
`978 F.3d 418 (6th Cir. 2020) .....................
`Gary-Northwest Ind. Women’s Servs., Inc.
`v. Orr,
`451 U.S. 934 (1981) ...................................
`Heart of Atlanta Motel, Inc. v. United States,
`379 U.S. 241 (1964) ...................................
`
`31
`
`16
`
`28
`
`
`
`
`
`
`
`viii
`TABLE OF AUTHORITIES—Continued
`
`
`
`Page(s)
`
`17
`
`30
`
`30
`
`22
`
`25
`
`21
`
`Hodgson v. Minnesota,
`497 U.S. 417 (1990) ...................................
`Hopkins v. Jegley,
`968 F.3d 912 (8th Cir. 2020) .....................
`Hughes v. United States,
`138 S. Ct. 1765 (2018) ..............................
`June Med. Servs. L.L.C. v. Russo,
`140 S. Ct. 2103 (2020) ..............................passim
`Marks v. United States,
`430 U.S. 188 (1977) ............................. 24, 30, 31
`Mazurek v. Armstrong,
`520 U.S. 968 (1997) (per curiam) .............
`N.Y. State Club Ass’n, Inc. v. City of
`New York,
`487 U.S. 1 (1988) .......................................
`Planned Parenthood Ass’n of Kansas City,
`Mo., Inc. v. Ashcroft,
`462 U.S. 476 (1983) ...................................
`Planned Parenthood of Ind. & Ky., Inc. v.
`Box,
`— F.3d —, 2021 WL 940125 (7th Cir.
`2021) .......................................................... 22, 31
`Planned Parenthood of Ind. & Ky., Inc. v.
`Comm’r of Ind. State Dep’t of Health,
`888 F.3d 300 (7th Cir. 2018) ....................
`Planned Parenthood of Ind. & Ky, Inc. v.
`Comm’r of Ind. State Dep’t of Health,
`917 F.3d 532 (7th Cir. 2018) .....................
`
`28
`
`27
`
`
`
`
`
`ix
`TABLE OF AUTHORITIES—Continued
`
`
`
`Page(s)
`
`Planned Parenthood of S.E. Pa. v. Casey,
`505 U.S. 833 (1992) ..................................passim
`Preterm-Cleveland v. Himes,
`940 F.3d 318 (6th Cir. 2019), reh’g
` en banc granted, opinion vacated,
`944 F.3d 630 (2019) ............................ 26, 28, 30
`Roberts v. U.S. Jaycees,
`468 U.S. 609 (1984) ....................... 25, 27, 28, 29
`Roe v. Wade,
`410 U.S. 113 (1973) ..................................passim
`Simopoulos v. Virginia,
`462 U.S. 506 (1983) ................................... 16, 21
`Strauder v. West,
`100 U.S. 303 (1879) ...................................
`Tennessee v. Lane,
`541 U.S. 509 (2004) ...................................
`Thornburgh v. Am. Coll. of Obstetricians
`& Gynecologists,
`476 U.S. 747 (1986) .................................... 18, 20
`Whole Woman’s Health v. Hellerstedt,
`136 S. Ct. 2292 (2016) ...............................
`Whole Woman’s Health v. Paxton,
`972 F.3d 649 (5th Cir. 2020) .....................
`Whole Woman’s Health v. Paxton,
`978 F.3d 896 (5th Cir. 2020),
`reh’g en banc granted, opinion vacated,
`978 F.3d 974 (2020) ..................................
`
`
`
`
`
`31
`
`27
`
`25
`
`31
`
`31
`
`
`
`x
`TABLE OF AUTHORITIES—Continued
`
`CONSTITUTION
`
`Page(s)
`
`U.S. Const. amend. XIV, sec. 1 ....................
`
`STATUTES
`28 U.S.C. 1254(1) ..........................................
`Arkansas Down Syndrome Discrimination
`by Abortion Prohibition Act, Ark. Code
`Ann. 20-16-2101 to 2107
` 20-16-2102(1)(B)(i) ....................................
` 20-16-2103(a) ............................................
` 20-16-2103(b)(1) ........................................
` 20-16-2103(b)(2) ........................................
` 20-16-2106(a) ............................................
`
`1
`
`1
`
`9
`9
`9
`9
`10
`
`OTHER AUTHORITIES
`Peter A. Benn & Audrey R. Chapman,
`Practical and Ethical Considerations
`of Noninvasive Prenatal Diagnosis, 301
`J. Am. Med. Ass’n 2154 (2009) .................
`Paul Brest, Foreword: In Defense of the
`Antidiscrimination Principle, 90 Harv. L.
`Rev. 1 (1976)..............................................
`Data and Statistics on Down Syndrome,
`Ctrs. for Disease Control & Prevention,
`https://www.cdc.gov/ncbddd/birthdefects/
`downsyndrome/data.html .........................
`Ellyn Farrelly et al., Genetic Counseling for
`Prenatal Testing: Where is the Discussion
`about Disability?, 21 J. Genetic Couns.
`814 (2012) .................................................. 5, 6, 7
`
`
`4
`
`28
`
`27
`
`
`
`PETITION FOR A WRIT OF CERTIORARI
`Arkansas Attorney General Leslie Rutledge, two
`state prosecutors, members of the Arkansas State
`Medical Board, and the Secretary of the Arkansas
`Department of Health, respectfully petition for a
`writ of certiorari to review the judgment of the
`United States Court of Appeals for the Eighth Circuit
`in this case.
`
`OPINIONS BELOW
`The court of appeals’ opinion (Pet. App. 1a-20a) is
`reported at 984 F.3d 682. The district court’s order
`(Pet. App. 21a-238a) is reported at 397 F. Supp. 3d 1213.
`JURISDICTION
`The court of appeals entered judgment on January
`5, 2021. The jurisdiction of this Court is invoked
`under 28 U.S.C. 1254(1).
`CONSTITUTIONAL AND STATUTORY
`PROVISIONS INVOLVED
`Section 1 of the Fourteenth Amendment to the U.S.
`Constitution provides:
`All persons born or naturalized in the United States,
`and subject to the jurisdiction thereof, are citizens
`of the United States and of the state wherein they
`reside. No state shall make or enforce any law which
`shall abridge the privileges or immunities of citizens
`of the United States; nor shall any state deprive any
`person of life, liberty, or property, without due process
`of law; nor deny to any person within its jurisdiction
`the equal protection of the laws.
`The Arkansas Down Syndrome Discrimination by
`Abortion Prohibition Act, Ark. Code Ann. 20-16-2101
`to 2107, is set forth in the appendix to this petition
`
`(Pet. App. 239a-247a).
`
`
`
`2
`INTRODUCTION
`This case is about whether the Constitution
`enshrines a right to have an abortion solely to avoid
`having a child diagnosed with Down syndrome. The
`majority of the panel below agreed that cannot be
`true, but ultimately held that this Court’s precedent
`said otherwise. That conclusion threatens the very
`existence of people with Down syndrome in this coun-
`try. And it sends an unmistakable message to people
`with Down syndrome that the Constitution, as inter-
`preted by this Court, is indifferent to their survival.
`The Court should grant certiorari and reverse the
`decision below.
`New technology has made it possible for all preg-
`nant women to test their unborn children for Down
`syndrome. When they do, false stereotypes and misin-
`formation from doctors with little knowledge of the
`condition lead over two-thirds of women who receive
`a Down-syndrome diagnosis to choose abortion. The
`result is a rapidly disappearing population of Americans
`with this already rare condition.
`In an effort to prevent that population from being
`eliminated, Arkansas narrowly prohibited providers
`from performing abortions sought solely because of a
`Down-syndrome diagnosis. The courts below held it
`could not do so. Taking sides in a growing circuit split,
`the Eighth Circuit reluctantly held that after this
`Court’s decision in June Medical, a State’s interests no
`longer mattered to whether its abortion regulations
`were constitutional; all that mattered was whether its
`laws imposed a substantial obstacle to obtaining an
`abortion. Arkansas’s law did, so it was invalid.
`That decision was grievously wrong. From Roe to
`Casey and even June Medical, this Court has always
`
`
`
`3
`held that a State’s compelling interests can justify
`its regulation of abortion—even regulations that can
`be characterized as a ban. Yet in June Medical’s
`fragmented wake, multiple courts of appeals, led
`astray by a misreading of the Chief Justice’s opinion,
`have held state interests no longer count. The Court
`should grant certiorari to make clear that, as is true
`everywhere else in constitutional law, state interests
`matter and can sustain abortion regulation.
`It should then hold that two compelling interests
`in antidiscrimination sustain Arkansas’s law. First,
`Arkansas has a palpably compelling interest in
`preventing selective abortion from eliminating its
`population with Down syndrome. No antidiscrimina-
`tion interest more strongly compels state action than
`prohibiting discrimination that threatens a group’s
`very existence.
`Second, Arkansas has an equally powerful interest
`in protecting its citizens with Down syndrome from
`the grotesquely stigmatic messages that selective
`abortion sends them. When people with Down syn-
`drome see that the vast majority of unborn children
`diagnosed with their condition are aborted, the
`message they receive from their community is that a
`life with Down syndrome is not worth living. For
`them, selective abortion “generates a feeling of inferi-
`ority as to their status in the community that may
`affect their hearts and minds in a way unlikely ever to
`be undone.” Brown v. Bd. of Educ., 347 U.S. 483, 494
`(1954). The Court should grant certiorari, vindicate
`those interests, and uphold Arkansas’s law.
`
`
`
`
`
`
`
`4
`STATEMENT
`A. Down Syndrome and Selective Abortion
`1. Down syndrome is a genetic disorder. Most of us
`are born with 23 pairs of chromosomes, but people
`with Down syndrome have a third copy of chromosome
`21. C.A. App. 804-05; see C.A. App. 1150-52. People
`with Down syndrome typically have mild to moderate
`cognitive impairment, C.A. App. 804, and their life
`expectancies are lower than the general population’s,
`C.A. App. 822. But thanks to advances in care and
`support, the prognosis for people with Down syndrome
`is constantly improving. In 1960, the life expectancy
`for someone with Down syndrome was 10 years, Data
`and Statistics on Down Syndrome, Ctrs. for Disease
`Control & Prevention;1 by 2007, it was 47, id.; today,
`it is about 60, C.A. App. 822.
`Not only has the medical outlook for people with
`Down syndrome dramatically improved; so too has
`their quality of life. Though medical professionals
`often assume that people with Down syndrome are a
`burden to themselves and their families, infra at 5-7,
`empirical research debunks that stereotype.
`In a groundbreaking series of studies published in
`2011 in the American Journal of Medical Genetics,
`Brian Skotko, an associate professor at Harvard
`Medical School, found that people with Down syn-
`drome are just as happy as their peers and a joy to
`their families. In a survey of hundreds of people with
`Down syndrome, 99% reported they were happy; 97%
`said they liked who they were; 96% said they liked how
`they looked; and 86% reported they could make friends
`
`
`1 https://www.cdc.gov/ncbddd/birthdefects/downsyndrome/dat
`a.html.
`
`
`
`5
`easily, with the minority who said they couldn’t mostly
`living in isolated situations. C.A. App. 762.
`In a second survey of parents of children with Down
`syndrome, Dr. Skotko found that 97% were proud
`of their children with Down syndrome. And although
`11% reported that their child with Down syndrome
`was putting a strain on their marriage or partnership,
`that figure was no greater than the share of respond-
`ents who reported that a child without Down syn-
`drome had put a strain on their relationship. C.A.
`App. 995-96. Those findings echo multiple earlier
`studies concluding that parents of children with Down
`syndrome have no greater stress, marital difficulties,
`or lack of confidence in their parenting, than parents
`of children without Down syndrome. C.A. App. 977.
`2. Unfortunately, that is not the message pregnant
`women who receive a diagnosis of Down syndrome
`receive. Counseled by reproductive-health specialists
`with scarce education on Down syndrome,2 women are
`given an overwhelmingly negative, dated, and inaccu-
`rate picture of life with Down syndrome that frequently
`veers into outright advocacy of selective abortion.
`For example, one study recorded nearly a hundred
`simulated counseling sessions between genetic coun-
`selors and researchers playing clients. Ellyn Farrelly
`et al., Genetic Counseling for Prenatal Testing: Where
`is the Discussion about Disability?, 21 J. Genetic
`
`2 In one survey of fellows in the American College of Obstetri-
`cians and Gynecologists, 45% rated their training on how to
`deliver a prenatal diagnosis of Down syndrome as “barely ade-
`quate or non-existent,” and only 28% deemed themselves “well-
`qualified” to offer prenatal genetic counseling. C.A. App. 800.
`Another survey of medical students found that 81% were “not
`getting any clinical training regarding individuals with intellec-
`tual disabilities” at all. Id.
`
`
`
`6
`Couns. 814 (2012). Even in that monitored setting,
`77% of counselors described Down syndrome as a
`severe disability. Id. at 817. Almost invariably, they
`discussed the physical and cognitive differences that
`can accompany Down syndrome (95% and 87%
`respectively). Id. One counselor even advised a
`client that children with Down syndrome “all do have
`mental retardation.” Id. at 819. Far fewer counselors
`(just 27%) talked about their social skills. Id. at 817.
`And one counselor advised a client that children with
`Down syndrome “have issues and they are longstand-
`ing issues and it is a financial drain to have a child
`with Down syndrome. That is the blunt and honest
`truth and I’m not going to try and pussyfoot around
`that.” Id. at 818.
`Prenatal-screening literature offers a similarly
`pessimistic outlook. As recently as 2009, California
`gave mothers with a prenatal Down-syndrome diag-
`nosis a state-produced brochure that stated Down
`syndrome “causes mental retardation” and that just “a
`few” infants with Down syndrome are only “mildly . . .
`retarded.” C.A. App. 844. But in reality, Down syn-
`drome causes only mild intellectual disabilities in over
`a third of cases. C.A. App. 844. And a study of
`Canadian prenatal-screening pamphlets on Down
`syndrome found that 47% of their statements about
`the condition were negative, while just 2% were
`positive—even counting statements about available
`services and support as positive. C.A. App. 851.
`Unsurprisingly,
`that overwhelmingly negative
`portrayal of raising a child with Down syndrome often
`crosses the line into encouraging women to abort
`them. In one survey of hundreds of physicians and
`genetic counselors, 13% admitted they overemphasize
`the condition’s negative aspects to persuade their
`
`
`
`7
`patients to abort; another 10%—in spite of the pro-
`fession’s supposed commitment to nondirective coun-
`seling—flatly admitted they “urge” aborting children
`with Down syndrome. C.A. App. 801.
`Shocking as those admissions are, studies that
`don’t rely on self-reporting paint a still darker picture.
`In one study of women who gave birth to children
`with Down syndrome after a prenatal diagnosis, 24%
`reported they carried their pregnancies to term despite
`“medical professionals’ insistence on terminating the[ir]
`pregnancies.” C.A. App. 881 (emphasis added). And
`in the study of simulated genetic-counseling sessions
`discussed above, 86% of counselors—before Down
`syndrome was even diagnosed—raised abortion as
`an option in the event it was. Farrelly, supra, at 819.
`By contrast, only 37% mentioned continuing the
`pregnancy in that event, 22% mentioned the availabil-
`ity of services for disabled children, and a mere 13%
`mentioned adoption. Id.
`The individual experiences of Arkansas mothers
`bear out these statistics. For instance, one mother
`testified below about how she regretted aborting her
`third child based solely on a Down-syndrome diagno-
`sis. See C.A. App. 1792-97. Her doctor did not “provide
`[her] any information about Down syndrome”—just a
`referral to Respondent Little Rock Family Planning
`Services, an abortion clinic. C.A. App. 1793-94.
`3. The medical profession’s negative portrayal of
`Down syndrome and encouragement of women to
`abort children diagnosed with it has a predictable
`consequence: Women who receive a prenatal diagno-
`sis of Down syndrome overwhelmingly choose abor-
`tion. The estimated abortion rate differs from study
`to study, but it is—on any account—extraordinarily
`high. A weighted average of studies drawing on three
`
`
`
`8
`States’ birth-defect registries estimates a rate of 67%,
`with one study estimating a rate of 93%. C.A. App.
`903. And a weighted average of eight studies in large
`hospitals estimates a rate of 85%, with individual
`hospitals’ rates as high as 89.6%. Id.
`Women make these choices, for the most part, not
`for self-interested reasons, but because of the false
`narrative surrounding the condition. In one study
`of women who chose to abort a child with Down
`syndrome, 92% said they believed their child would
`never be able to function independently, C.A. App.
`933, and 83% said they believed the condition’s burden
`would be too heavy for the child to bear, id.—
`notwithstanding that the vast majority of people with
`Down syndrome do not view their lives that way.
`The extraordinarily high rates of abortion of
`children diagnosed with Down syndrome are rapidly
`shrinking the population of Americans with that
`condition. The most recent study of selective abor-
`tion’s effects in the United States found that by 2007,
`abortion had reduced the number of children born with
`Down syndrome by 30%. C.A. App. 864. But that
`number almost certainly substantially underesti-
`mates selective abortion’s effects on the population,
`because it predates the 2011 advent of cell-free DNA
`testing. C.A. App. 1022. This is a widely available
`non-invasive screening test that has two advantages
`over past screening tests: It is far more sensitive and,
`unlike them, can be performed in the first trimester.
`C.A. App. 811-13.
`Indeed, in Iceland, since such screening has become
`nearly universal, only about one to two babies with
`Down syndrome have been born a year—in a nation
`with a population of over 300,000. C.A. App. 838-39;
`see also Box v. Planned Parenthood of Ind. & Ky., Inc.,
`
`
`
`9
`139 S. Ct. 1780, 1791 (2019) (Thomas, J., concurring)
`(“In Iceland, the abortion rate for children diagnosed
`with Down syndrome in utero approaches 100%.”). In
`Denmark, where prenatal screening has also become
`near-universal, only eighteen babies were born with
`Down syndrome in 2019—in a nation with a popula-
`tion of over 5,000,000. Pet. App. 20a (Erickson, J.,
`concurring). As the United States’ extremely high
`rates of abortion after a Down-syndrome diagnosis
`intersect with today’s screening techniques, Down
`syndrome in America may largely become a thing of
`the past.
`
`of
`
`Selective
`
`B. Arkansas’s Prohibition
`Abortion
`To prevent selective abortion from eradicating its
`population with Down syndrome, in 2019 Arkansas
`enacted the Down Syndrome Discrimination by
`Abortion Prohibition Act, Ark. Code Ann. 20-16-2101
`to 2107. The Act prohibits practitioners from know-
`ingly performing abortions solely on the basis of a
`prenatal diagnosis or indication of Down syndrome.
`Id. 20-16-2103(a).
`To prevent evasion of that prohibition, abortion
`practitioners are required to ask whether a woman
`has received a diagnosis of, or test result indicating,
`Down syndrome. Id. 20-16-2103(b)(1). If so, the abor-
`tion practitioner must inform the woman of the Act’s
`prohibition and review her medical records to
`determine if she has previously aborted a child
`diagnosed with Down syndrome. Id. 20-16-2103(b)(2).
`The Act does not prohibit a practitioner from perform-
`ing an abortion if they find a history of selective
`abortion, but such a history is relevant to the practi-
`tioner’s knowledge of their patients’ intent.
`
`
`
`10
`Pregnant women themselves may not be held
`criminally or civilly liable under the Act. Id. 20-16-
`2106(a). Additionally, though the Act only prohibits
`abortions obtained solely because of a Down-syndrome
`diagnosis, abortions performed to protect the life or
`health of the mother or child are expressly excepted
`from the Act’s coverage. Id. 20-16-2102(1)(B)(i).
`
`C. Procedural History
`1. In June 2019, four weeks before the Act’s effec-
`tive date, two Arkansas abortion facilities and two
`affiliated practitioners challenged the Act,3 claiming it
`unconstitutionally burdened what they alleged was
`the right to obtain abortions, for whatever reason, pre-
`viability. C.A. App. 6-7, 21-22.
`The plaintiffs acknowledged they performed abor-
`tions sought solely based on a Down-syndrome
`diagnosis, and testified that, while they did not ask
`their patients their reasons for seeking an abortion,
`those whose reason was a Down-syndrome diagnosis
`“usually disclose this fact.” Pet. App. 80a. The
`plaintiffs also testified that the Act’s prohibition would
`be effective; if it went into effect, they testified, they
`would not perform abortions that they knew were
`sought solely because of a diagnosis of Down
`syndrome. Pet. App. 81a.
`2. The district court preliminarily enjoined enforce-
`ment of the Act, concluding it was facially unconstitu-
`tional. Pet. App. 137a. The district court did not
`address Arkansas’s interest in antidiscrimination;
`rather, it claimed that under this Court’s decision in
`
`
`3 Subsequently, one of the plaintiff facilities and its practi-
`tioner withdrew from the preliminary-injunction motion. C.A.
`App. 528.
`
`
`
`11
`Casey, no state interest could ever sustain any prohi-
`bition of pre-viability abortion. Pet. App. 132a. By
`merely prohibiting a minute subset of pre-viability
`abortions—ones of children diagnosed with Down
`syndrome, sought solely because of that diagnosis—
`the district court held that Arkansas had sought “to
`move the point of viability to conception.” Pet. App.
`134a. Indeed, the district court deemed the law
`so transparently invalid that it “refus[ed] to apply the
`undue burden standard,” which it thought inapplica-
`ble to any “prohibition on certain abortions prior to
`viability.” Pet. App. 136a.
`3. The court of appeals affirmed, but the majority of
`the panel lamented the result. In an opinion by Judge
`Loken, the court explained that recent circuit prece-
`dent had held the Chief Justice’s concurring opinion in
`June Medical Services L.L.C. v. Russo, 140 S. Ct. 2103
`(2020), was controlling. Pet. App. 5a n.2. And under
`that opinion, the court reasoned, a law’s benefits or
`the interests it served were only relevant to whether
`it survived rational-basis review. If it did, “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.” Pet. App. 9a
`(internal quotation marks omitted) (quoting June
`Med., 140 S. Ct. at 2138 (Roberts, C.J., concurring)).
`Reasoning that the Act is a substantial obstacle for
`those women who wish to get an abortion because of
`a Down-syndrome diagnosis, the court of appeals
`concluded it followed automatically that the Act was
`invalid. Pet. App. 10a. Whether or not the State had
`a compelling interest in preventing selective abortion
`was, in the court’s view, irrelevant.
`In two separate concurring opinions, Judges
`Shepherd and Erickson lamented that this Court’s
`
`
`
`12
`precedent, as they understood it, required them to
`strike down the Act. Judge Shepherd, joined by
`Judge Erickson, wrote that prohibitions of abortion
`sought solely because of “an unwanted immutable
`characteristic of the unborn child” present “significant
`and, as yet, unconsidered issues regarding the balance
`of [the State’s] interests” and abortion. Pet. App. 15a
`(Shepherd, J., concurring). Yet he reluctantly con-
`cluded that “Casey directs that we resolve this inquiry
`by considering viability alone.” Pet. App. 16a.
`Judge Erickson, joined by Judge Shepherd, argued
`at length that the State’s interest in preventing
`discriminatory abortion was compelling, reasoning
`that if unchecked, such abortion could eliminate the
`“population [of] children with Down syndrome,” Pet.
`App. 20a (Erickson, J., concurring), and reduce the
`“diversity of the human population” generally, Pet.
`App. 19a. But reading Casey to only permit prohibi-
`tions of abortion that protect viable fetal life, Pet. App.
`18a, he concluded with “deep[] regret” that “precedent
`forecloses a balancing of the state’s actual interest
`against the woman’s right to choose,” Pet. App. 20a.
`
`REASONS FOR GRANTING THE WRIT
`I. The court of appeals’ decision conflicts with
`this Court’s precedent and is wrong.
`A. Under this Court’s precedent, abortion
`regulations that reasonably serve a com-
`pelling state interest are constitutional.
`The court of appeals’ decision invalidating Arkansas’s
`prohibition of Down-syndrome-discriminatory abortion
`rests on one premise: Under this Court’s precedent,
`any law that places a substantial obstacle in the path
`of a woman seeking a pre-viability abortion is per se
`invalid. That is incorrect.
`
`
`
`13
`Casey did not find an absolute right against laws
`that substantially burden abortion pre-viability. Nor
`did it hold that protecting viable fetal life is the only
`compelling interest States have in regulating abortion.
`Instead, Casey held that only laws that place a
`substantial obstacle in the path of a woman seeking
`an abortion are potentially invalid. And—as true in
`virtually every other context—even laws that have
`that effect are permissible if they further a compelling
`interest. Indeed, that’s why States may bar late-term
`abortions,
`impose reasonable health and safety
`requirements that reduce abortion access, and prohibit
`minors who are unable to obtain parental consent or a
`judicial bypass from obtaining an abortion.
`In sum, to decide whether Arkansas’s law ran afoul
`of the right articulated in Roe and Casey, the courts
`below had to decide whether Arkansas has a com-
`pelling interest in preventing selective abortion of
`children diagnosed with Down syndrome. In declining
`to apply that standard, the courts below contravened
`this Court’s precedent, and this Court should grant
`certiorari and reverse the judgment below.
`
`1. Before Casey, abortion regulations that
`reasonably furthered compelling interest