United States Court of Appeals
` For the Eighth Circuit
`___________________________
`
`No. 19-2690
`___________________________
`
`Little Rock Family Planning Services, et al.
`
`lllllllllllllllllllllPlaintiffs - Appellees
`
`v.
`
`Leslie Rutledge, in her official capacity as Attorney General of the State of
`Arkansas, et al.
`
`lllllllllllllllllllllDefendants - Appellants
`
`------------------------------
`
`Justin Buckley Dyer, Ph. D.; State of Missouri; State of Alabama; State of Alaska;
`State of Georgia; State of Idaho; State of Indiana; Commonwealth of Kentucky;
`State of Louisiana; State of Nebraska; State of Ohio; State of Oklahoma; State of
`South Carolina; State of South Dakota; State of Tennessee; State of Texas; State
`of Utah; State of West Virginia
`
`lllllllllllllllllllllAmici on Behalf of Appellants
`
`Society for Maternal- Fetal Medicine; American College of Obstetricians and
`Gynecologists; Constitutional Law Scholars; State of California; State of
`Colorado; State of Connecticut; State of Delaware; State of Hawaii; State of
`Illinois; State of Maine; State of Maryland; State of Massachusetts; State of
`Minnesota; State of Nevada; State of New Mexico; State of New York; State of
`Oregon; State of Pennsylvania; State of Rhode Island; State of Vermont; State of
`Virginia; State of Washington; District of Columbia; Reproductive Justice Organizations
`
`lllllllllllllllllllllAmici on Behalf of Appellees
` ____________
`
`

`

`Appeal from United States District Court
`for the Eastern District of Arkansas - Little Rock
` ____________
`
` Submitted: September 23, 2020
`Filed: January 5, 2021
`____________
`
`
`Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.
`____________
`
`LOKEN, Circuit Judge.
`
`Little Rock Family Planning Services and Dr. Thomas Tvedten (collectively,
`“LRFP”) brought this 42 U.S.C. § 1983 action challenging the constitutionality of
`three Arkansas statutes enacted in 2019 that relate to abortions: (1) Act 493, codified
`at Ark. Code Ann. § 20-16-2004, bans providers from performing an abortion when
`the “probable age” of the fetus is “determined to be greater than eighteen weeks’
`gestation,” with exceptions for a “medical emergency” or a pregnancy that results
`from rape or incest. (2) Act 619, codified at Ark. Code Ann. § 20-16-2103, prohibits
`a provider from intentionally performing an abortion with knowledge that the
`pregnant woman is seeking the abortion “solely on the basis” of a test indicating
`Down syndrome or any other reason to believe that the fetus has Down syndrome,
`with exceptions if the abortion is necessary to save the woman’s life or to preserve
`her health or if the pregnancy is the result of rape or incest. (3) Act 700, codified at
`Ark. Code Ann. § 20-16-606, provides that a person who performs an abortion must
`be a licensed physician “board-certified or board-eligible in obstetrics and
`gynecology” (OBGYN). A provider who violates these statutes commits a Class D
`felony and is subject to suspension or revocation of his or her medical licence.
`Defendants are the Attorney General of Arkansas and numerous other officials acting
`in their official capacities.
`
`-2-
`
`

`

`Following an evidentiary hearing at which eight witnesses testified, the district
`court issued a 186-page Preliminary Injunction order preliminarily enjoining
`Defendants “from enforcing Act 493 of 2019, Act 619 of 2019, and Act 700 of 2019.”
`The court applied our traditional four-part test for the grant of preliminary injunctions
`in Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc),
`as modified when the moving party seeks to enjoin a state statute by Planned
`Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 725, 732 (8th Cir. 2008) (en banc).
`Defendants appeal.1 With the appeal pending, LRFP moved to dismiss as moot
`Defendants’ appeal of the injunction against enforcing Act 700, explaining that
`Plaintiffs now comply with the statute’s OBGYN requirement. After careful, de novo
`review, we affirm the order preliminarily enjoining enforcement of Act 493 and Act
`619. We dismiss as moot the appeal of that part of the order that preliminarily
`enjoined enforcement of Act 700 (the OBGYN requirement) and remand with
`instructions to vacate that part of the Preliminary Injunction order and its supporting
`findings and conclusions.
`
`1Defendants’ Notice of Appeal also included an order of the district court judge
`to whom this case was initially assigned consolidating the case with Planned
`Parenthood of Ark. & E. Okla. v. Jegley, Case No. 4:15-cv-00784-KGB, then pending
`before the judge who issued the Preliminary Injunction order. Defendants did not
`include this order in their statement of the issues presented for review or the argument
`sections of their brief, as Fed. R. App. P. 28(a)(5) and (8) require. Therefore, we do
`not consider this issue, and we deny LRFP’s time-wasting motion to dismiss that part
`of the appeal. We also reject as totally without merit Defendants’ disrespectful
`argument that we direct the case be reassigned because the judge who issued the
`Preliminary Injunction order “has a long history of unlawfully enjoining Arkansas
`laws.” In these motion wars, counsel of record for both sides lost sight of their duties
`to serve as officers of the court as well as vigorous advocates for their clients.
`
`-3-
`
`

`

`I. Acts 493 and 619, The Pre-Viability Abortion Bans.
`
`As the district court recognized, the law governing the constitutionality of two
`of the three statutes at issue -- Act 493 and Act 619 -- though obviously subject to
`change in the future, is well established in this Circuit today:
`
`Before viability, a State “may not prohibit any woman from making the
`ultimate decision to terminate her pregnancy.” It also may not impose
`upon the right an undue burden, which exists if a regulation’s “purpose
`or effect is to place a substantial obstacle in the path of a woman seeking
`an abortion before the fetus attains viability.” On the other hand,
`“[r]egulations which do no more than create a structural mechanism by
`which the State, or the parent or guardian of a minor, may express
`profound respect for the life of the unborn are permitted, if they are not
`a substantial obstacle to the woman’s exercise of the right to choose.”
`
`MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 772 (8th Cir. 2015), cert. denied, 136
`S. Ct. 981 (2016), quoting Gonzales v. Carhart, 550 U.S. 124, 146 (2007), in turn
`quoting Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 879, 878, and 877
`(1992). The Supreme Court has defined viability as “the time at which there is a
`realistic possibility of maintaining and nourishing a life outside the womb, so that the
`independent existence of the second life can in reason and all fairness be the object
`of state protection that now overrides the rights of the woman.” Casey, 505 U.S. at
`870. “Before viability,” the Court declared, “the State’s interests are not strong
`enough to support a prohibition of abortion or the imposition of a substantial obstacle
`to the woman’s effective right to elect the procedure.” Id. at 846. “The woman’s
`right to terminate her pregnancy before viability . . . . is a rule of law and a component
`of liberty we cannot renounce.” Id. at 871 (citation omitted).
`
`-4-
`
`

`

`The Supreme Court has repeatedly stated that its pre-viability rule is
`categorical: “Regardless of whether exceptions are made for particular circumstances,
`a State may not prohibit any woman from making the ultimate decision to terminate
`her pregnancy before viability.” Casey, 505 U.S. at 879; see Gonzales, 550 U.S. at
`146; cf. June Med. Servs. L.L.C., v. Russo, 140 S. Ct. 2103, 2135 (2020) (Roberts,
`C.J., concurring).2 We have applied the rule categorically, even while recognizing
`“that viability varies among pregnancies and that improvements in medical
`technology will both push later in pregnancy the point at which abortion is safer than
`childbirth and advance earlier in gestation the point of fetal viability.” Edwards v.
`Beck, 786 F.3d 1113, 1117 (8th Cir. 2015) (citations omitted) (invalidating an
`Arkansas statute banning abortions after twelve weeks’ gestation because the Act
`“prohibits women from making the ultimate decision to terminate a pregnancy at a
`point before viability”).
`
`A. Act 493, The 18-Week Ban. Act 493 provides that a person “shall not
`intentionally or knowingly perform, induce, or attempt to perform or induce an
`abortion of an unborn human being if the probable gestation age of the unborn human
`being is determined to be greater than eighteen (18) weeks’ gestation.” Ark. Code
`Ann. § 20-16-2004(b). The district court preliminarily enjoined enforcement of this
`statute based on uncontroverted medical testimony that “no fetus is viable at 18
`weeks,” and that “[i]t is commonly accepted in the field of OBGYN that a normally
`developing fetus will not attain viability until at least 24 weeks.” This testimony has
`strong support in governing case law. See MKB Mgmt., 795 F.3d at 774 (“[t]oday,
`viability generally occurs at 24 weeks”); accord Casey, 505 U.S. at 860.
`
`2Chief Justice Roberts’s concurring opinion is controlling. Hopkins v. Jegley,
`968 F.3d 912, 915 (8th Cir. 2020), citing Marks v. United States, 430 U.S. 188, 193
`(1977), and Gregg v. Georgia, 428 U.S. 158, 169 n.15 (1976).
`
`-5-
`
`

`

`On appeal, Defendants do not contest the district court’s conclusion that LRFP
`is likely to succeed on the merits of its claim that Act 493 prohibits LRFP and other
`providers from performing pre-viability abortions. Rather, they argue that Arkansas
`may ban abortions eighteen weeks after gestation because the statute “responds to
`evidence linking increased maternal risk to increased gestational age” and
`“recognizes” that, by eighteen weeks, “an unborn child has taken on the human form
`in all relevant respects.” But this argument simply brushes aside the governing legal
`principle: “[b]efore viability the State’s interests are not strong enough to support a
`prohibition of abortion.” Casey, 505 U.S. at 846. As Defendants presented no
`generally accepted medical evidence that the attainment of viability has shifted to
`before eighteen weeks after gestation, we must affirm the district court’s order
`preliminarily enjoining enforcement of Act 493, which effectively prohibits a
`substantial universe of pre-viability abortions.
`
`B. Act 619, The Down Syndrome Ban. Act 619 prohibits a physician from
`performing or attempting to perform an abortion “with the knowledge that a pregnant
`woman is seeking an abortion solely on the basis of: (1) A test result indicating
`Down syndrome in an unborn child; (2) A prenatal diagnosis of Down syndrome in
`an unborn child; or (3) Any other reason to believe that an unborn child has Down
`syndrome.” Ark. Code Ann. § 20-16-2103(a). Based on undisputed evidence that
`“post-viability abortions are not performed in Arkansas currently,” the district court
`concluded that Act 619 “unconstitutionally restricts pre-viability abortions” and
`preliminarily enjoined Defendants from “enforcing . . . Act 619.”3
`
`3The court’s Preliminary Injunction order stated that, because there is no
`evidence post-viability abortions are performed in Arkansas, “the court will not
`examine whether Act 619 is constitutional as applied to post-viability abortions at this
`stage of the proceedings.” At oral argument, LRFP confirmed that Plaintiffs do not
`perform post-viability abortions and do not challenge Act 619 in that regard. Both
`counsel agreed that the preliminary injunction does not affect Act 619 as it may apply
`to post-viability abortions, so we need not address that issue.
`
`-6-
`
`

`

`On appeal, Defendants argue we should reverse the preliminary injunction
`because the district court erroneously declared a “novel, absolute right to pre-viability
`abortion.” According to Defendants, in both Casey and Gonzales the Supreme Court
`upheld pre-viability abortion bans -- in Casey, the Court upheld a Pennsylvania
`parental-consent requirement that “entirely barred” minors from electing pre-viability
`abortions unless they obtained a “judicial bypass,” and in Gonzales, the Court upheld
`bans on “certain kinds” of pre-viability abortions. Defendants argue that Act 619 is
`constitutional because it furthers the State’s valid interest in preventing
`discrimination on the basis of Down syndrome. They assert that this issue is not
`controlled by Casey, citing Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct.
`1780, 1792 (2019) (Thomas, J., concurring in the denial of a writ of certiorari to
`consider the issue) (“Whatever else might be said about Casey, it did not decide
`whether the Constitution requires States to allow eugenic abortions.”).
`
`Defendants misconstrue Casey and Gonzales. These decisions did not uphold
`complete bans on pre-viability abortions. In Casey, the Court upheld the parental
`consent regulation at issue because the judicial bypass procedure ensured that minors
`were not completely banned from obtaining pre-viability abortions. 505 U.S. at 899.
`In Gonzales the Court upheld a law banning physicians from performing a
`particularly brutal method of abortion; the Court noted the statute “still allows, among
`other means, a commonly used and generally accepted method [to perform abortion],
`so it does not construct a substantial obstacle to the abortion right.” 550 U.S. at 165
`(2007). The Court expressly stated that it “assume[d] the following principles for the
`purposes of this opinion. Before viability, a State ‘may not prohibit any woman from
`making the ultimate decision to terminate her pregnancy.’” Id. at 146, quoting Casey,
`505 U.S. at 879. A majority of the Supreme Court recently reaffirmed these
`principles:
`
`Both [parties] agree that the undue burden standard announced in
`Casey provides the appropriate framework to analyze Louisiana’s law.
`
`-7-
`
`

`

`Casey reaffirmed the most central principle of Roe v. Wade, a
`woman’s right to terminate her pregnancy before viability. At the same
`time, it recognized that the State has important and legitimate interests
`in protecting . . . the potentiality of human life. . . . To serve the latter
`interest, the State may, among other things, enact rules and regulations
`designed to encourage her to know that there are philosophic and social
`arguments of great weight that can be brought to bear in favor of
`continuing the pregnancy to full term.
`
`* * * * *
`
`Casey discussed [the] benefits [of a particular regulation] in considering
`the threshold requirement that the State have a “legitimate purpose” and
`that the law be “reasonably related to that goal.” So long as that
`showing is made, 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.”
`
`* * * * *
`
`Here the plurality expressly acknowledges that we are not considering
`how to analyze an abortion regulation that does not present a substantial
`obstacle. . . . In this case, Casey’s requirement of finding a substantial
`obstacle before invalidating an abortion regulation is therefore a
`sufficient basis for the decision . . . . I would adhere to the holding of
`Casey, requiring a substantial obstacle before striking down an abortion
`regulation.
`
`June Med. Servs., 140 S. Ct. at 2135, 2138-39 (2020) (Roberts, C.J., concurring)
`(cleaned up).
`
`In this case, it is undisputed that Act 619 is a substantial obstacle; indeed, it is
`a complete prohibition of abortions based on the pregnant woman’s reason for
`exercising the right to terminate her pregnancy before viability. We agree with our
`sister circuits that it is “inconsistent to hold that a woman’s right of privacy to
`
`-8-
`
`

`

`terminate a pregnancy exists if . . . the State can eliminate this privacy right if [she]
`wants to terminate her pregnancy for a particular purpose.” Planned Parenthood of
`Ind. & Ky., Inc. v. Comm’r, Ind. State Dep’t of Health, 888 F.3d 300, 307 (7th Cir.
`2018), rev’d in part on other grounds sub nom., Box v. Planned Parenthood of Ind.
`& Ky., Inc., 139 S. Ct. 1780 (2019); accord Jackson Women’s Health Org. v. Dobbs,
`945 F.3d 265, 274 (5th Cir. 2019). Though the Supreme Court may of course decide
`to revisit how Casey should apply to purpose-based bans on pre-viability abortions,
`the district court did not abuse its discretion by preliminarily enjoining enforcement
`of Act 619 under current governing law. That portion of the preliminary injunction
`is affirmed.
`
`II. Act 700, The OBGYN Requirement.
`
`Act 700 provides that abortions in Arkansas must be performed by a licensed
`physician who is a board-certified or board-eligible OBGYN. Ark. Code Ann. § 20-
`16-606(a). After Defendants appealed the district court’s order preliminarily
`enjoining enforcement of Act 700, all plaintiffs moved to dismiss this part of the
`appeal as moot because LRFP has hired a board-certified OBGYN to provide
`abortion care at LRFP, making the injunction unnecessary at this time. Plaintiff
`Tvedten, who has provided abortion services at LPRF for many years and is not
`OBGYN-certified, joined in the motion to dismiss. Defendants argue the appeal is
`not moot because “Plaintiffs will seek yet another preliminary injunction from the
`district court as soon as they decide again that litigation would be more fruitful than
`compliance.” LRFP replies that, if it does seek injunctive relief in the future, “their
`entitlement to relief will depend on the facts presented at that time.”4
`
`4The recognized exception to mootness for issues “capable of repetition, yet
`evading review,” does not apply to moot appeals of preliminary injunctions. Bierman
`v. Dayton, 817 F.3d 1070, 1074 (8th Cir. 2016) (citation omitted).
`
`-9-
`
`

`

`We have jurisdiction of an appeal from an interlocutory order granting a
`preliminary injunction. 28 U.S.C. § 1292(a)(1). The “purpose of a preliminary
`injunction is merely to preserve the relative positions of the parties until a trial on the
`merits can be held.” University of Texas v. Camenisch, 451 U.S. 390, 395 (1981).
`The mootness doctrine “has its origins in the article III case or controversy
`requirement” and also serves “as a check against the unnecessary use of judicial
`resources . . . and against the creation of unnecessary precedent.” Olin Water Servs.
`v. Midland Research Laboratories, Inc., 774 F.2d 303, 305 & n.2 (8th Cir. 1985)
`(citations omitted). “Mootness occurs when the parties ‘lack a legally cognizable
`interest in the outcome.’” Id. If a judgment or interlocutory order becomes moot
`while awaiting appellate review, the appellate court “may not consider its merits, but
`may make such disposition of the whole case as justice may require.” U.S. Bancorp
`Mtg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 21 (1994).
`
`Here, the preliminary injunction preserved the status quo by allowing LRFP to
`continue providing abortion services by doctors who are not OBGYN-certified.
`Having been granted this preliminary relief, LRFP argues Defendants’ appeal is moot
`because LRFP is now complying with Act 700 and therefore Plaintiffs are not
`adversely affected by the statute. Though the premise is certainly open to question,5
`we agree that this part of the controversy is now moot. “Plaintiffs are masters of their
`complaints and remain so at the appellate stage of a litigation,” and their argument
`“amounts to a decision to no longer seek” a preliminary injunction. Webster v.
`Reproductive Health Servs., 492 U.S. 490, 512 (1989). Defendants cite no practical
`reason why there is an actual controversy at this time. Defendants argue that LRFP
`
`5When the motion to dismiss this part of the appeal as moot was filed, Dr.
`Tvedten’s license to practice medicine had been temporarily suspended due to a
`complaint unrelated to abortion services. We are advised that the suspension was
`recently lifted, which presumably means that, if the preliminary injunction is vacated,
`Act 700 will again preclude him from providing abortion services. However, it is
`undisputed that Dr. Tvedten joined LRFP’s motion to dismiss.
`
`-10-
`
`

`

`may seek future preliminary injunctive relief if its OBGYN-certified providers go
`elsewhere. But a “conjectural or hypothetical” possibility of future harm is
`insufficient to satisfy the case-or-controversy requirement for seeking injunctive
`relief. Brazil v. Ark. Dep’t of Human Servs., 892 F.3d 957, 960 (8th Cir. 2018)
`(citation omitted). In these circumstances, their opposition to dismissal simply urges
`an unnecessary use of judicial resources and the creation of unnecessary precedent.
`
`The more important question, which invariably arises when the party that
`prevailed in the district court takes voluntary action that moots an appeal, is whether
`to remand with directions to vacate the mooted order. See generally Perficient, Inc.
`v. Munley, 973 F.3d 914 (8th Cir. 2020). The Supreme Court has instructed us to
`“dispose[] of moot cases in the manner most consonant to justice in view of the nature
`and character of the conditions which have caused the case to become moot.” U.S.
`Bancorp, 513 U.S. at 24 (cleaned up). Applying that general principle, the Court
`declared that the “equitable tradition of vacatur” should normally be invoked when
`a party “seeks review of the merits of an adverse ruling, but is frustrated [when]
`mootness results from unilateral action of the party who prevailed below.” Id. at 25.
`
`We conclude that vacatur is the appropriate disposition in this case for many
`reasons. First, the timing of LRFP’s actions strongly suggest an intent to avoid
`appellate review. Second, the merits of LRFP’s challenge to Act 700 remain to be
`decided in the district court, and it would be inappropriate to have those unresolved
`issues affected by the district court’s findings and conclusions in a preliminary
`injunction order LRFP’s actions prevented us from reviewing. See Perficient, 973
`F.3d at 917. Third, and perhaps most important, in preliminarily enjoining Act 700,
`the district court employed the undue burden analysis based upon Whole Woman’s
`Health v. Hellerstedt, 136 S. Ct. 2292 (2016), that it used in Hopkins, which we
`recently reversed and remanded for further consideration in light of June Medical
`Services. 968 F.3d at 915-16. As LRFP’s voluntary action has caused the
`preliminary injunction of Act 700 to become moot, we accomplish the same result in
`
`-11-
`
`

`

`this case by remanding to the district court with directions to vacate as moot the part
`of its order preliminarily enjoining Act 700 together with the findings of fact and
`conclusions of law supporting that equitable relief.
`
`III. Conclusion.
`
`For the forgoing reasons, we affirm the district court’s order preliminarily
`enjoining enforcement of Act 493 and Act 619. We dismiss as moot the appeal of the
`preliminary injunction of Act 700 and remand to the district court with instructions
`to vacate this part of its Preliminary Injunction order. We dismiss Defendants’ appeal
`from the district court’s consolidation orders and deny their request that the case be
`reassigned on remand. We deny as frivolous LRFP’s motion to exclude from the
`record on appeal the files from Planned Parenthood of Ark. & E. Okla. v. Jegley that
`Defendants included in their Designation of Record. See fn.1 supra. The parties will
`each bear their own costs of appeal. There is no “prevailing party” for purposes of
`42 U.S.C. § 1988(b).
`
`SHEPHERD, Circuit Judge, with whom ERICKSON, Circuit Judge, joins,
`concurring.
`
`Because the Court’s opinion applies binding Supreme Court precedent, I join
`it in full. I write separately, however, to reiterate my view that “good reasons exist
`for the [Supreme] Court to reevaluate its jurisprudence” regarding the viability
`standard as announced in Planned Parenthood of Southeastern Pennsylvania v. Casey,
`505 U.S. 833 (1992). See MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 773 (8th
`Cir. 2015).
`
`In MKB Management Corp., this Court discussed at length the reasons that the
`viability standard has proven unsatisfactory, including that it “gives too little
`consideration to the ‘substantial state interest in potential life throughout pregnancy’”
`
`-12-
`
`

`

`by tying the interests to scientific advancements in obstetrics and “not to
`developments in the unborn”; that it deprives state legislatures of the opportunities
`to determine the appropriate interest in protecting unborn children by substituting the
`Supreme Court’s “own preference to that of the legislature”; and that the factual
`underpinnings of Roe v. Wade, 410 U.S. 113 (1973), and Casey may have changed.
`Id. at 774-75 (citations omitted). I continue to believe that these reasons warrant
`reconsideration of the viability standard. But this case presents yet another reason
`why the viability standard is unsatisfactory and worthy of reconsideration. Act 619,
`which prohibits a physician from performing or attempting to perform an abortion
`based on a diagnosis or suspicion of Down Syndrome involves significant and, as yet,
`unconsidered issues regarding the balance of interests when the sole reason a woman
`seeks an abortion is what she deems an unwanted immutable characteristic of the
`unborn child. And Casey directs that we resolve this inquiry by considering viability
`alone.
`
`In Box v. Planned Parenthood of Indiana & Kentucky, Inc., 139 S. Ct. 1780,
`1782 (2019) (per curiam), the Supreme Court granted certiorari and reversed the
`judgment of the Seventh Circuit regarding an Indiana statute governing the
`disposition of fetal remains, but declined to grant certiorari to a second question,
`regarding another Indiana statue prohibiting abortion providers from providing
`abortions sought on the basis of the sex, race, or disability of the unborn child. In a
`separate concurring opinion, Justice Thomas expressed his view that the latter law
`“and other laws like it promote a State’s compelling interest in preventing abortion
`from becoming a tool of modern-day eugenics,” and acknowledged that “with today’s
`prenatal screening tests and other technologies, abortion can easily be used to
`eliminate children with unwanted characteristics.” Id. at 1783, 1790 (Thomas, J.,
`concurring). Justice Thomas agreed, however, with the Court’s decision to decline
`to grant certiorari because “further percolation may assist our review of this issue of
`first impression.” Id. at 1784. But in closing, Justice Thomas noted that “[a]lthough
`the Court declines to wade into these issues today, we cannot avoid them forever.
`
`-13-
`
`

`

`Having created the constitutional right to an abortion, this Court is dutybound to
`address its scope.” Id. at 1793.
`
`Others have taken note of the fact that “Casey did not consider the validity of
`an anti-eugenics laws.” Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of Ind.
`State Dep’t of Health, 917 F.3d 532, 536 (7th Cir. 2018) (Easterbrook, J., dissenting).
`In the Seventh Circuit proceedings prior to Box, Judge Easterbook noted in dissent
`that
`
`Casey and other decisions hold that, until a fetus is viable,
`a woman is entitled to decide whether to bear a child. But
`there is a difference between “I don’t want a child” and “I
`want a child, but only a male” or “I want only children
`whose genes predict success in life.” Using abortion to
`promote eugenic goals is morally and prudentially
`debatable on grounds different from those that underlay the
`statutes Casey considered.
`
`Id. Today’s opinion is another stark reminder that the viability standard fails to
`adequately consider the substantial interest of the state in protecting the lives of
`unborn children as well as the state’s “compelling interest in preventing abortion from
`becoming a tool of modern-day eugenics.” Box, 139 S. Ct. at 1783 (Thomas, J.,
`concurring). The viability standard does not and cannot contemplate abortions based
`on an unwanted immutable characteristic of the unborn child. However, because we
`must apply the ill-fitting and unworkable viability standard to an act aimed at
`preventing eugenics-based abortions unless and until the Supreme Court dictates
`otherwise, I concur in the Court’s opinion holding Act 619 unconstitutional.
`
`-14-
`
`

`

`ERICKSON, Circuit Judge, with whom SHEPHERD, Circuit Judge, joins,
`concurring.
`
`I concur in the Court’s opinion and in Judge Shepherd’s concurrence, but write
`separately to emphasize my belief that there are important reasons for the Supreme
`Court to revisit its precedent in Planned Parenthood of Southeastern Pennsylvania v.
`Casey, 505 U.S. 833 (1992). Viability as a standard is overly simplistic and
`overlooks harms that go beyond the state’s interest in a nascent life alone.
`
`The great glory of humanity is its diversity. We are, as a species, remarkably
`variant in our talents, abilities, appearances, strengths, and weaknesses. The human
`person has immense creative powers, a range of emotional responses that astound the
`observant, and a capacity to love and be loved that is at the core of human existence.
`Each human being possesses a spirit of life that at our finest we have all recognized
`is the essence of humanity. And each human being is priceless beyond measure.
`Children with Down syndrome share in each of these fundamental attributes of
`humanity.
`
`While the state’s interest in nascent life has been recognized to give way to the
`right of a woman to be free from “unduly burdensome interference with her freedom
`to decide whether to terminate her pregnancy” id. at 874 (quoting Maher v. Roe, 432
`U.S. 464, 473–74(1977)), it is apparent that the right is not, and should not be,
`absolute. By focusing on viability alone, the Court fails to consider circumstances
`that strike at the core of humanity and pose such a significant threat that the State of
`Arkansas might rightfully place that threat above the right of a woman to choose to
`terminate a pregnancy.
`
`As Judge Easterbrook recognized in his dissent in Planned Parenthood of
`Indiana & Kentucky, Inc. v. Comm’r of Indiana State Dep’t of Health, 917 F.3d 532,
`536 (7th Cir. 2018) (Easterbrook, J., dissenting), eugenics pose a question that is
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`different in both degree and kind from the interest of the state in nascent life. One of
`the great curses of the 20th century was rise of the eugenics movement. It gave a
`patina of acceptability to such horrors as genocide, forced sterilization, the
`development of a master race, and the death of millions of innocents.
`
`The new eugenics movement is more subtle, but a state could nonetheless
`conclude that it poses a great and grave risk to its citizens. A core value of eugenics
`is the notion that diversity in the human population should be reduced to maximize
`and eventually realize the “ideal” of a more “perfect person.” Inherent in this concept
`is the goal of controlling genetic diversity of a population in order to create a super
`race: one that is deemed to be healthier, smarter, stronger, and more beautiful. The
`creation of such a cadre of people would undoubtedly lead to greater discrimination
`against people who are deemed to be “inferior,” resulting in a broad attack on
`diversity of the human population.
`
`Recent history demonstrates biases broadly prevalent in the society related to
`race, gender, sexual orientation, and medical or intellectual infirmities that could in
`the not-too-distant future be the subject of genetic manipulation, either in the
`laboratory or by termination of pregnancies. The State of Arkansas could decide that
`the risk posed by such practices presents a greater risk to humanity than a burden
`placed on a woman’s right to choose to terminate her pregnancy–but such a decision
`is foreclosed by our current precedent based on viability alone. The State of Arkansas
`could decide that addressing social inequalities and disparities is a far more
`appropriate response to marginalized populations than embracing the neo-eugenics
`movement.
`
`In Western society, there is currently no more threatened population than
`children with Down syndrome. While there are still 6,000 children born annually in
`the United States with Down syndrome, the same is not the case in other western
`democracies. Centers for Disease Control & Prevention, Data & Statistics on Down
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`Syndrome, https://www.cdc.gov/ncbddd/birthdefects/downsyndrome/data.html (last
`accessed on December 29, 2020). For example, since Denmark adopted universal
`prenatal screening for Down syndrome, the number of parents who chose to continue
`a pregnancy after a diagnosis of Down syndrome has ranged from 0–13. Last year
`in 2019, only seven pregnancies proceeded to term after diagnosis of Down syndrome
`and another 11 infants undiagnosed by the testing were born. That is a total of 18
`infants with Down syndrom