Amicus Curiae Brief — Kristina Box, Commissioner, Indiana Department of Health, et al., Petitioners v. Planned Parenthood of Indiana and Kentucky, Inc., et al.
Supreme Court briefNov 15, 2018
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No. 18-483
In the Supreme Court of the United States
KRISTINA BOX, COMMISSIONER, INDIANA DEPARTMENT
OF HEALTH, ET AL., PETITIONERS,
v.
PLANNED PARENTHOOD OF INDIANA AND KENTUCKY,
INC., ET AL., RESPONDENTS
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF OF THE STATES OF WISCONSIN,
ALABAMA, ARIZONA, ARKANSAS, GEORGIA,
IDAHO, KANSAS, LOUISIANA, MICHIGAN,
MISSOURI, NEBRASKA, OHIO, OKLAHOMA,
SOUTH CAROLINA, SOUTH DAKOTA, TEXAS,
UTAH, WEST VIRGINIA, AND GOVERNOR
PHIL BRYANT OF THE STATE OF
MISSISSIPPI AS AMICI CURIAE
SUPPORTING PETITIONERS
BRAD D. SCHIMEL
Attorney General
STATE OF WISCONSIN
DEPARTMENT OF JUSTICE
17 West Main Street
Madison, WI 53703
tseytlinm@doj.state.wi.us
(608) 267-9323
MISHA TSEYTLIN
Solicitor General
Counsel of Record
KEVIN M. LEROY
Deputy Solicitor
General
Attorneys for Amicus Curiae State of Wisconsin
[Additional counsel listed at end]
QUESTIONS PRESENTED
1. Whether a State may mandate the respectful
disposition of the remains of aborted “child[ren]
assuming the human form,” Gonzales v. Carhart, 550
U.S. 124, 160 (2007).
2. Whether a State may ban the invidiously
discriminatory practice of aborting unborn children
solely because of their race, sex, or disability
diagnosis.
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ....................................... i
INTEREST OF AMICI CURIAE ................................1
INTRODUCTION AND SUMMARY OF
ARGUMENT ...............................................................2
REASONS FOR GRANTING THE PETITION .........4
I. The States May Require The Respectful
Disposition Of The Remains Of Aborted
Unborn Children ..............................................4
II. The States May Prohibit The Elimination
Of Classes Of Human Beings By Invidiously
Discriminatory Abortions ...............................11
CONCLUSION ..........................................................26
iii
TABLE OF AUTHORITIES
Cases
14 Penn Plaza LLC v. Pyett,
556 U.S. 247 (2009)............................................. 16
Barnes v. Glen Theatre, Inc.,
501 U.S. 560 (1991)............................................. 10
Bd. of Dirs. of Rotary Int’l v. Rotary Club of
Duarte,
481 U.S. 537 (1987)............................................. 18
Bethune-Hill v. Virginia State Bd. of Elections,
137 S. Ct. 788 (2017)........................................... 16
Bob Jones Univ. v. United States,
461 U.S. 574 (1983)............................................. 19
Chaplinsky v. New Hampshire,
315 U.S. 568 (1942)............................................. 16
City of Akron v. Akron Ctr. for Reprod. Health,
Inc.,
462 U.S. 416 (1983)...................................... passim
Coleman v. DeWitt,
282 F.3d 908 (6th Cir. 2002)................................. 9
FCC v. Beach Commc’ns, Inc.,
508 U.S. 307 (1993)......................................... 7, 10
Franklin v. Fitzpatrick,
428 U.S. 901 (1976) (mem.) .................................. 5
iv
Gonzales v. Carhart,
550 U.S. 124 (2007)...................................... passim
Harris v. Quinn,
134 S. Ct. 2618 (2014)......................................... 17
Heart of Atlanta Motel, Inc. v. United States,
379 U.S. 241 (1964)............................................. 18
Hodgson v. Minnesota,
497 U.S. 417 (1990)............................................. 14
Janus v. Am. Fed’n of State, Cty., & Mun. Emps.,
Council 31,
138 S. Ct. 2448 (2018)......................................... 17
Johnson v. California,
543 U.S. 499 (2005)............................................. 16
Knox v. Serv. Emps. Int’l Union, Local 1000,
567 U.S. 298 (2012)............................................. 17
Kovacs v. Cooper,
336 U.S. 77 (1949)............................................... 15
McDonald v. City of Chicago,
561 U.S. 742 (2010)............................................. 15
N.Y. State Club Ass’n v. City of New York,
487 U.S. 1 (1988)................................................. 19
Planned Parenthood of Minn. v. Minnesota,
910 F.2d 479 (8th Cir. 1990)..................... 2, 5, 6, 7
v
Planned Parenthood of Se. Pa. v. Casey,
505 U.S. 833 (1992)...................................... passim
Roberts v. U.S. Jaycees,
468 U.S. 609 (1984)............................................. 18
Roe v. Wade,
410 U.S. 113 (1973)............................................... 7
Sch. Bd. of Nassau Cty. v. Arline,
480 U.S. 273 (1987)............................................. 19
Thornburgh v. Am. Coll. of Obstetricians &
Gynecologists,
476 U.S. 747 (1986)............................................... 8
Virginia v. Black,
538 U.S. 343 (2003)............................................. 15
Washington v. Glucksberg,
521 U.S. 702 (1997)............................................. 18
Webster v. Reprod. Health Servs.,
492 U.S. 490 (1989)........................................... 5, 8
Whole Woman’s Health v. Hellerstedt,
136 S. Ct. 2292 (2016)................................... 13, 17
Whole Woman’s Health v. Smith,
896 F.3d 362 (5th Cir. 2018)................................. 5
Williams-Yulee v. Fla. Bar,
135 S. Ct. 1656 (2015)......................................... 16
vi
Statutes
18 U.S.C. § 1841 ......................................................... 8
29 U.S.C. § 794 ......................................................... 19
42 U.S.C. § 289g–2 ..................................................... 9
42 U.S.C. § 12132 ..................................................... 19
Ariz. Rev. Stat. § 13-3603.02 ..................................... 1
Ark. Code § 20-16-1904 .............................................. 1
Ind. Code § 16-34-2-6 ................................................. 9
Ind. Code § 23-14-54-1 ........................................... 4, 9
Ind. Code § 23-14-54-4 ........................................... 4, 9
Ind. Code § 35-50-2-16 ............................................... 8
Indiana House Enrolled Act 1337 ............................. 1
Kan. Stat. § 65-6726................................................... 1
La. Rev. Stat. § 40:1061.1.2 ....................................... 1
Minn. Stat. § 145.1621 ............................................... 5
N.C. Gen. Stat. § 90-21.121 ....................................... 1
N.D. Cent. Code § 14-02.1-04.1.................................. 1
Ohio Rev. Code § 2919.10 .......................................... 1
vii
Ohio Rev. Code § 2919.14 .......................................... 9
Okla. Stat. tit. 63, § 1-731.2....................................... 1
S.D. Codified Laws § 34-23A-64 ................................ 1
Wis. Stat. § 106.52 ............................................. 18, 19
Wis. Stat. § 111.321 ................................................. 19
Wis. Stat. § 940.01 ..................................................... 8
Constitutional Provisions
U.S. Const. amend. I ................................................ 15
U.S. Const. amend. XIV, § 1 .................................... 16
Rule
Sup. Ct. R. 10 ............................................................. 4
Other Authorities
Arthur L. Caplan, Chloe’s Law: A Powerful
Legislative Movement Challenging a Core
Ethical Norm of Genetic Testing, 13 PLoS Biol.
1 (2015) ................................................................ 22
Briana S. Nelson Goff et al., Receiving the Initial
Down Syndrome Diagnosis: A Comparison of
Prenatal and Postnatal Parent Group
Experiences, 51 Intellectual & Developmental
Disabilities 446 (2013) ........................................ 22
viii
David A. Savitz, How Far Can Prenatal
Screening Go in Preventing Birth Defects, 152
J. Pediatrics 3 (2008) .......................................... 23
Douglas Almond & Lena Edlund, Son-biased sex
ratios in the 2000 United States Census, 105
Proc. of the Nat’l Acad. of Sci. 5861 (2008) ........ 23
Fetal Homicide Laws, Nat’l Conf. of State
Legislatures .......................................................... 8
Frank Newport, Slight Preference for Having Boy
Children Persists in U.S., Gallup (July 5,
2018) .............................................................. 23, 24
Frank Stephens, Testimony Before House
Subcommittee on Labor, Health and Human
Services, and Education (Oct. 25, 2017) ............ 24
Gender-Biased Sex Selection, U.N. Population
Fund .................................................................... 21
Gert de Graaf et al., Estimates of the Live Births,
Natural Losses, and Elective Terminations
with Down Syndrome in the United States,
167A(4) Am. J. Med. Genetics 756 (2015) .......... 21
Gregory Kellogg et al., Attitudes of Mothers of
Children with Down Syndrome Towards
Noninvasive Prenatal Testing, 23 J. Genetic
Counseling 805 (2014) ........................................ 22
ix
Hannah Korkow-Moradi et al., Common Factors
Contributing to the Adjustment Process of
Mothers of Children Diagnosed with Down
Syndrome: A Qualitative Study, 28 J. Fam.
Psychotherapy 193 (2017) .................................. 22
Homer, The Iliad, Book XXIV ................................... 9
Jamie L. Natoli et al., Prenatal diagnosis of Down
syndrome: a systematic review of termination
rates (1995–2011), 32 Prenat. Diagn. 142
(2012) ................................................................... 21
Jason Abrevaya, Are There Missing Girls in the
United States? Evidence from Birth Data, 1(2)
Am. Econ. J.: Applied Econ. 1 (2009) ................. 23
John Finnis, Abortion and Health Care Ethics, in
Bioethics: An Anthology (Helga Kuhse et al.
eds., 3d ed. 2016)................................................... 9
Julian Quinones & Arijeta Lajka, “What kind of
society do you want to live in?”: Inside the
country where Down syndrome is
disappearing, CBS News (Aug. 14, 2017) .......... 19
Mara Hvistendahl, Unnatural Selection:
Choosing Boys over Girls, and the
Consequences of a World Full of Men (2011) ..... 20
Mara Hvistendahl, Where Have All the Girls
Gone?, Foreign Policy (June 27, 2011) ............... 21
x
Nat’l Down Syndrome Soc’y, Understanding a
Diagnosis of Down Syndrome ............................. 25
Nicholas Eberstadt, The Global War Against
Baby Girls, The New Atlantis (2011) ................. 20
Patrick Lee, Abortion & Unborn Human Life (2d
ed. 2010) ................................................................ 9
Rachèl V. van Schendel et al., What Do Parents of
Children with Down Syndrome Think about
Non-Invasive Prenatal Testing (NIPT)?, 26 J.
Genetic Counseling 522 (2017)..................... 22, 25
Sam Roberts, U.S. Births Hint at Bias for Boys in
Some Asians, N.Y. Times (June 14, 2009) ......... 23
Sex Imbalances at Birth: Current Trends,
Consequences, and Policy Implications, U.N.
Population Fund Asia & Pacific Regional
Office (Aug. 2012) ............................................... 20
Simon Denyer & Annie Gowen, Too Many Men:
China and India Battle with the Consequences
of Gender Imbalance, The Washington Post
(Apr. 24, 2018)..................................................... 21
Sital Kalantry, How to Fix India’s Sex-Selection
Problem, N.Y. Times (Jul. 27, 2017) .................. 20
Sophocles, Antigone.................................................... 9
William Blackstone, Commentaries .......................... 9
INTEREST OF AMICI CURIAE*
Amici are the States of Wisconsin, Alabama,
Arizona, Arkansas, Georgia, Idaho, Kansas,
Louisiana, Michigan, Missouri, Nebraska, Ohio,
Oklahoma, South Carolina, South Dakota, Texas,
Utah, West Virginia, and Governor Phil Bryant of the
State of Mississippi (hereinafter “the States”). The
States have the solemn duty and sovereign right to
protect the dignity of all human beings within their
borders. Through House Enrolled Act 1337 (“HEA
1337” or “the Act”), Indiana forwarded this and other
important sovereign interests by requiring the
respectful disposition of the remains of unborn
children and prohibiting the discriminatory
elimination of classes of human beings based upon
race, gender, or disability. App. 131a–36a. Many
“[o]ther states have followed Indiana’s lead” by
enacting laws similar to HEA 1337. App. 31a
(Manion, J., concurring in the judgment in part,
dissenting in part); e.g., Ariz. Rev. Stat. § 13-3603.02;
Ark. Code § 20-16-1904; Kan. Stat. § 65-6726; La.
Rev. Stat. § 40:1061.1.2; N.C. Gen. Stat. § 90-21.121;
N.D. Cent. Code § 14-02.1-04.1; Ohio Rev. Code
§ 2919.10; Okla. Stat. tit. 63, § 1-731.2(B); S.D.
Codified Laws § 34-23A-64.
* Counsel of record received timely notice of the States’ intent
to file this amicus brief at least ten days before the due date.
Sup. Ct. R. 37.2(a). Pursuant to Supreme Court Rule 37.4, the
consent of the parties is not required for the States to file this
brief.
2
INTRODUCTION AND SUMMARY OF
ARGUMENT
The Seventh Circuit’s decision below contains two
holdings that, especially when taken together, exhibit
an unprecedented, unlawful hostility to the States’
authority to honor human life and dignity.
The Seventh Circuit first held that Indiana had no
constitutional authority to enact the RespectfulDisposition Provision, which requires providers to
dispose respectfully of aborted unborn children,
rather than dumping them as medical waste (as is
Respondents’ practice). Disregarding this Court’s
explanation in City of Akron v. Akron Center for
Reproductive Health, Inc., 462 U.S. 416, 452 & n.45
(1983), overruled on other grounds by Planned
Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833 (1992), and in direct conflict with the
Eighth Circuit’s holding in Planned Parenthood of
Minnesota v. Minnesota, 910 F.2d 479, 487–88 (8th
Cir. 1990), the Seventh Circuit concluded that
Indiana’s “interest in requiring . . . dispos[al] of
aborted fetuses in the same manner as human
remains is not legitimate” because this Court has held
that those unborn children are not “persons” under
the Fourteenth Amendment.
App. 15a–16a
(emphasis added).
The Seventh Circuit’s
unprecedented holding that unborn children are so
unworthy of dignity that it is not even “legitimate” for
the State to require that their remains not be thrown
away like medical waste warrants this Court’s review.
3
The Seventh Circuit also invalidated Indiana’s
Antidiscrimination Provision, which prohibits the
elimination of classes of human beings through
discriminatory abortion based upon race, gender, and
disability because, in the Seventh Circuit’s view,
Casey foreclosed any prohibition on pre-viability
abortions, no matter the interest being sought, no
matter how carefully tailored the law. But the
plaintiffs in Casey specifically declined to challenge
Pennsylvania’s discriminatory-abortion prohibition,
and this Court, accordingly, did not rule upon that
prohibition.
See Br. for Respondents, Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)
(Nos. 91-744, 91-902), 1992 WL 12006423, at *4.
Nevertheless, the Seventh Circuit concluded that
Casey controlled the outcome in this case because, in
the Seventh Circuit’s view, Casey enshrined the right
to pre-viability abortion as “categorical.” But this
Court has never declared any right to be “categorical,”
and Casey itself upheld one type of pre-viability
abortion prohibition. Under a proper understanding
of Casey’s undue-burden test, the Antidiscrimination
Provision furthers the State’s compelling interest in
prohibiting the discriminatory elimination of classes
of human beings by race, gender, or disability. This
issue is ripe for this Court’s review, as Judge
Easterbrook, joined by Judges Sykes, Barrett and
Brennan, explained below. App. 123a.
This Court should grant the Petition.
4
REASONS FOR GRANTING THE PETITION
I. The States May Require The Respectful
Disposition Of The Remains Of Aborted
Unborn Children
Indiana’s
Respectful-Disposition
Provision
requires an abortion clinic to “inter[ ] or cremate[ ]”
the remains of any “aborted fetus” in its “possession.”
App. 136a. This ensures that the remains of unborn
children receive the same dignified disposition as the
remains of other human beings. Compare App. 136a,
with Ind. Code §§ 23-14-54-1, -4. The Seventh Circuit
invalidated Indiana’s Provision, taking the
remarkable position that “the State’s interest in
requiring . . . dispos[ition] of aborted fetuses in the
same manner as human remains is not legitimate.”
App. 16a (emphasis added). Since that decision
violates this Court’s explanation in Akron and creates
a division with the Eighth Circuit, this Court’s review
is warranted. See Sup. Ct. R. 10(a), (c).
A. In Akron, this Court considered the
constitutionality
of
Akron’s
fetal-disposition
ordinance,
holding
that
the
statute
was
unconstitutionally vague because of the statute’s
particular wording.
462 U.S. at 451–52.
In
articulating the narrow limits of this holding,
however, this Court specifically explained that a
State “remains free, of course, to enact [ ] carefully
drawn regulations that further its legitimate interest
in proper disposal of fetal remains.” 462 U.S. at 452
5
n.45 (emphasis added). Most relevant here, this
Court explained that a State may enact a statute that
“preclude[s] the mindless dumping of aborted fetuses
on garbage piles.” Id. at 451 & n.44 (citing Franklin
v. Fitzpatrick, 428 U.S. 901 (1976) (mem.)).
Consistent with this Court’s guidance in Akron,
the Eighth Circuit in Planned Parenthood of
Minnesota, 910 F.2d 479, upheld Minnesota’s fetaldisposition statute, which ensured “the dignified and
sanitary disposition of the remains of aborted [ ]
human fetuses” by requiring all “medical facilities” to
“provide for the disposal of the[se] remains” in their
possession “by cremation, internment by burial, or in
a manner directed by the commissioner of health.” Id.
at 481 n.2, 483 (quoting Minn. Stat. § 145.1621,
subds. 1, 4); compare App. 136a (Indiana’s RespectfulDisposition Provision). The Eighth Circuit held that
the statute furthered the “legitimate interest in
proper disposal of fetal remains” recognized by this
Court in Akron. 910 F.2d at 482 (quoting Akron, 462
U.S. at 452 n.45). Since, as this Court has held, “a
state may make a value judgment favoring childbirth
over abortion,” it must for the same reason be allowed
to “conclu[de] that fetal remains are the equivalent of
[born] human remains.” Id. at 487 (citing Webster v.
Reprod. Health Servs., 492 U.S. 490, 505–06 (1989));
accord Whole Woman’s Health v. Smith, 896 F.3d 362,
376 (5th Cir. 2018) (Ho, J., concurring) (“[N]othing in
the text or original understanding of the Constitution
prevents a state from requiring the proper burial of
fetal remains.”).
6
B. In the decision below, a divided panel majority
invalidated
Indiana’s
Respectful-Disposition
Provision. That holding creates a direct split of
authority with the Eighth Circuit’s decision in
Planned Parenthood of Minnesota, ignores this
Court’s explanation of the legitimate interests
underlying respectful-disposition laws from Akron,
and makes numerous other legal errors.
The divided panel’s decision below conflicts
directly with the Eighth Circuit’s upholding of a
materially indistinguishable respectful-disposition
provision. Indiana’s Provision requires that an
abortion clinic “inter[ ] or cremate[ ]” any “aborted
fetus” in its “possession,” App. 136a, just like
Minnesota’s law that the Eighth Circuit upheld
against an identical legal challenge, see Planned
Parenthood of Minn., 910 F.2d at 481 n.2. Applying
rational-basis review, as all conceded was proper,
App. 14a–15a, the panel majority nevertheless held
that Indiana’s interest in showing respect to the
remains of unborn children was “not legitimate”
because this Court “has concluded that the word
‘person,’ as used in the Fourteenth Amendment, does
not include the unborn,” App. 15a–17a (citation
omitted), and that, even if Indiana’s interest were
legitimate, the law failed to pursue it through
“rationally related” means, App. 18a–19a. That
conclusion “create[s] a conflict with” the Eighth
Circuit’s decision in Planned Parenthood of
Minnesota, App. 124a (Easterbrook, J., dissenting
from the denial of rehearing en banc), given that the
7
Eighth Circuit held that fetal-disposition laws further
legitimate purposes, Planned Parenthood of Minn.,
910 F.2d at 487–88; supra p. 5, and any one legitimate
purpose is sufficient to sustain a law on rational-basis
review, FCC v. Beach Commc’ns, Inc., 508 U.S. 307,
315 (1993). Simply put, the Seventh Circuit split with
the Eighth Circuit in a case that is “substantially
similar in every material respect.” App. 39a (Manion,
J., concurring in the judgment in part, dissenting in
part).
The panel majority’s decision invalidating the
Respectful-Disposition Provision similarly conflicts
with this Court’s explanation that a State “remains
free, of course, to enact [ ] carefully drawn regulations
that further its legitimate interest in proper disposal
of fetal remains.” Akron, 462 U.S. at 452 n.45
(emphasis added). The panel majority did not even
discuss Akron, relegating it to a “see also” cite.
App. 17a. Instead, the panel majority claimed that its
holding followed from this Court’s decision in Roe,
which had concluded that unborn children are not
“persons” under the Fourteenth Amendment’s Due
Process Clause. App. 15a–16a (citing Roe v. Wade,
410 U.S. 113, 158–59 (1973)). From Roe, the panel
majority derived the conclusion that Indiana’s
requirement that the remains of unborn children be
disposed of in the same manner as the remains of
other babies is “not legitimate.” App. 15a–16a. But
Roe predated Akron and, in any event, its holding on
this score is a “red herring.” App. 41a (Manion, J.,
concurring in the judgment in part, dissenting in
8
part). The question of who counts as a “person” under
the Fourteenth Amendment is analytically distinct
from the question of “whether the fetus is a ‘human
being’” in a scientific, moral, or philosophical sense.
Thornburgh v. Am. Coll. of Obstetricians &
Gynecologists, 476 U.S. 747, 792 (1986) (White, J.,
dissenting), overruled in part by Casey, 505 U.S. 833.
Nothing prevents Indiana from reaching its own
considered judgments on these questions. App. 41a–
42a (Manion, J., concurring in the judgment in part,
dissenting in part). Indeed, the sovereign authority
of the States to make such judgments is precisely the
reason why, under this Court’s settled precedent,
States may “make a value judgment favoring
childbirth over abortion.” Webster, 492 U.S. at 505–
06 (citation omitted).
Far from being irrational, respect for unborn
children as human beings is a well-recognized basis
for legislative action. Accord Gonzales, 550 U.S. at
160 (“the fast-developing brain of her unborn child, a
child assuming the human form”). The Federal
Government and 38 States rely on that same
judgment as the core justification for their fetalhomicide laws. See 18 U.S.C. § 1841; Ind. Code § 3550-2-16; Wis. Stat. § 940.01(1)(b); Fetal Homicide
Laws,
Nat’l
Conf.
of
State
Legislatures,
https://perma.cc/A7D3-SF3V (all links last visited
Nov. 7, 2018). These laws have survived legal
challenge time and again, App. 41a, with courts often
rejecting arguments practically identical to the
Seventh Circuit’s wrongheaded reliance on Roe, see,
9
e.g., Coleman v. DeWitt, 282 F.3d 908, 911–13 (6th
Cir. 2002). Additionally, the Federal Government
bans the commercial sale of fetal tissue, 42 U.S.C.
§ 289g–2, and many States ban experimentation on
fetal remains, e.g., Ind. Code § 16-34-2-6; Ohio Rev.
Code § 2919.14, all in recognition of the unborn child’s
humanity. And the “majority” of biologists define
“human beings” to include the unborn, Patrick Lee,
Abortion & Unborn Human Life 71–107 (2d ed. 2010),
as do many eminent bioethicists, e.g., John Finnis,
Abortion and Health Care Ethics, in Bioethics: An
Anthology 15 (Helga Kuhse et al. eds., 3d ed. 2016).
The Seventh Circuit’s interference with the State’s
provision for the respectful disposition of human
remains is also contrary to history. Society has long
practiced the proper disposition of human remains as
a sign of respect. See, e.g., Homer, The Iliad, Book
XXIV (“And Priam answered [Achilles], . . . ‘Nine
days, therefore, will we mourn Hector in my house; on
the tenth day we will bury him . . . ; on the eleventh
we will build a mound over his ashes . . . .’”).
Performing a proper disposition has long been a duty
owed to the deceased. See, e.g., Sophocles, Antigone,
Scene I, Line 413 (“Nevertheless, there are honors due
all the dead.”); 2 William Blackstone, Commentaries,
*508 (“[The executor] must bury the deceased in a
manner suitable to the estate which he leaves behind
him.”). A State enshrining this duty in the law, see,
e.g., Ind. Code §§ 23-14-54-1, -4, as an exercise of its
police power, furthers the rational purpose of showing
this type of respect, see Barnes v. Glen Theatre, Inc.,
10
501 U.S. 560, 569 (1991) (“The traditional police
power of the States is defined as the authority to
provide for the public health, safety, and morals, and
we have upheld such a basis for legislation.”); accord
Gonzales, 550 U.S. at 137, 158 (banning of the “intact
D&E” abortion procedure is “justif[ied]” because it
“implicates additional ethical and moral concerns”).
As this Court recognized in Akron, States have a
“legitimate interest in proper disposal of fetal
remains,” 462 U.S. at 452 n.45, since they have an
interest in the proper disposal of all human remains.
Finally, even if the Constitution somehow
prohibited the States from requiring the treatment of
unborn children as human beings for purposes of the
respectful disposition of remains, this would still not
render the Respectful-Disposition Provision unlawful
under the rational-basis standard that all parties
agree applies here. See Beach Commc’ns, 508 U.S. at
315 (“[I]t is entirely irrelevant for constitutional
purposes whether the conceived reason for the
challenged [law] actually motivated the legislature.”).
As Judge Easterbrook explained below, the States’
“regulatory authority” extends well beyond human
beings. App. 123a. States have, for example, ample
authority to enact “animal-welfare statutes,”
including statutes that “prescribe how animals’
remains must be handled.”
App. 123a; accord
Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., No.
17-71 (U.S. argued Oct. 1, 2018) (considering federal
protections for the “dusky gopher frog”). In Judge
Easterbrook’s words, “[t]he panel has held invalid a
11
statute that would be sustained had it concerned the
remains of cats or gerbils.” App. 123a. This Court
should grant review and correct this horrific
consequence of the Seventh Circuit’s decision.
II. The States May Prohibit The Elimination Of
Classes Of Human Beings By Invidiously
Discriminatory Abortions
Indiana’s Antidiscrimination Provision prohibits
the “eugenic” practice of doctors performing abortions
sought solely because of the race, sex, or disability
status of the unborn child. App. 121a (Easterbrook,
J., dissenting from the denial of rehearing en banc);
App. 132a–33a. The Seventh Circuit invalidated this
law by purporting to find within this Court’s case law
a “categorical” right to pre-viability abortion, a right
that a State cannot infringe no matter how powerful
its interest, App. 10a (emphasis added), even if this
Court has never confronted a case dealing with that
interest, App. 121a–22a (Easterbrook, J., dissenting
from the denial of rehearing en banc).
That
conclusion is legally wrong and would perversely
place the unenumerated right to pre-viability
abortion above even core protections of the Bill of
Rights.
A. Whether a State’s anti-discrimination interests
justify the prohibition of discriminatory abortions is
an issue that this Court has never addressed. In
Casey, the challengers “sought declaratory and
injunctive relief against a wide array of
12
[Pennsylvania’s]
1988
and
1989”
abortion
regulations, but did not seek to block Pennsylvania’s
prohibition of gender-discriminatory abortions, which
Pennsylvania enacted during the same period. See
Br. for Respondents, Casey, 505 U.S. 833, 1992 WL
12006423, at *4.
Failing to recognize this as an issue of first
impression, the Seventh Circuit concluded that
certain language in Casey enshrined the pre-viability
abortion right as “categorical,” preemptively
foreclosing any anti-eugenics prohibitions on previability abortions. App. 10a. In reaching this
conclusion, the Seventh Circuit relied on a single
passage from Casey: “‘a State may not prohibit any
woman from making the ultimate decision to
terminate her pregnancy before viability.’” App. 10a
(quoting Casey, 505 U.S. at 879 (plurality op.)). The
Seventh Circuit read this passage as mandating the
conclusion that every effort by the State to prohibit
any
pre-viability
abortion
is
automatically
unconstitutional, without any need to even consider
either the weight of the State’s proffered interest or
how narrowly tailored the law is to achieving that
interest. App. 13a–14a.
The Seventh Circuit’s interpretation of this
passage from Casey is incorrect.
As Judge
Easterbrook explained below, the passage has no
bearing on the Antidiscrimination Provision because
Casey “did not consider the validity of an antieugenics law.” App. 121a. “Judicial opinions are not
13
statutes; they resolve only the situations presented
for decision.” App. 121a. The passage is best
understood as limited to only “the State’s interests”
actually urged before this Court in Casey—the State’s
general interest in unborn life and the health of the
mother. See Casey, 505 U.S. at 846; Whole Woman’s
Health v. Hellerstedt, 136 S. Ct. 2292, 2310 (2016).
And since “[u]sing abortion to promote eugenic goals
is morally and prudentially debatable on grounds
different from those that underlay statutes Casey
considered,” the lower courts “ought not impute” a
decision on that question to this Court. App. 122a
(Easterbrook, J., dissenting from the denial of
rehearing en banc). In short, “[n]one of th[is] Court’s
abortion decisions holds that states are powerless to
prevent abortions designed to choose the sex, race,
and other attributes of children.”
App. 122a
(Easterbrook, J., dissenting from the denial of
rehearing en banc) (emphasis added).
No other passages in Casey support the Seventh
Circuit’s conclusion. So, for example, while Judge
Manion believed that the label “undue burden”
suggests a “pure effects test,” blind to any compelling
interests of the State, App. 26a, this label was a
“shorthand” for a traditional means-ends test—albeit
one specifically fashioned for the abortion context.
Casey, 505 U.S at 876–77 (plurality op.). Thus, the
test calls for weighing the State’s “interest[s]” against
the “burdens on the right to decide whether to
terminate a pregnancy.” Id. at 876.
14
Casey itself rejects the extreme “categorical”
position that the Seventh Circuit ascribes to it. Casey
held that the State could prohibit some pre-viability
abortions, namely, those of a minor when her parents
do not consent and a court finds both that the abortion
is not in the minor’s best interests and that the minor
is not “mature and capable of giving informed
consent.” 505 U.S. at 899 (plurality op.). That
prohibition is justified not by the State’s interest in
the life of the unborn child or the health of the mother,
but by its “strong and legitimate interest in the
welfare of its young citizens.” Hodgson v. Minnesota,
497 U.S. 417, 444 (1990). Had Casey elevated the
right to a pre-viability abortion to “categorical” status,
as the Seventh Circuit believed, this restriction would
have fallen. Put another way, since this Court in
Casey concluded that the State’s interest in
youngsters’ welfare is sufficiently powerful to prohibit
some pre-viability abortions, it follows that courts
must consider the possibility that other interests
might justify the prohibition of other such abortions.
The Seventh Circuit also misunderstood Casey’s
broader place within the development of this Court’s
abortion jurisprudence.
Casey’s undue-burden
standard replaced the post-Roe strict-scrutiny test,
which had developed as part of Roe’s trimester
framework, to make it easier for States to regulate
abortions. See Casey, 505 U.S. at 871–73 (plurality
op.); e.g., Akron, 462 U.S. at 427, 434. The Casey
plurality found this shift justified because Roe had
“undervalue[d] the State’s interest.” Casey, 505 U.S.
15
at 873 (plurality op.). To make the undue-burden test
“more difficult to satisfy” than Roe’s “strict-scrutiny
test,” as the Seventh Circuit did in this case, would be
an “absurd result[ ].”
App. 24a (Manion, J.,
concurring in the judgment in part, dissenting in
part).
More generally, this Court has never declared any
right in the Constitution to be absolute, so the
Seventh Circuit’s enshrining of the right to a previability abortion as “categorical” cannot be correct.
Even assuming that pre-viability abortion is a right
on par with core constitutional rights like free speech
or equal protection—a doubtful proposition—“[n]o
fundamental right . . . is absolute.” McDonald v. City
of Chicago, 561 U.S. 742, 802 (2010) (Scalia, J.,
concurring). “[E]ven the fundamental rights of the
Bill of Rights are not absolute.” Kovacs v. Cooper, 336
U.S. 77, 85 (1949); Virginia v. Black, 538 U.S. 343,
358 (2003).
Accordingly, “the strength of the
individual’s liberty interests and the State’s
regulatory interests must always be assessed and
compared” when evaluating a law’s constitutionality.
McDonald, 561 U.S. at 879 (Stevens, J., dissenting)
(emphasis added).
For example, the First
Amendment provides in categorical terms that
“Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech,
or of the press,” U.S. Const. amend. I, but it recognizes
“certain well-defined and narrowly limited classes of
speech, the prevention and punishment of which have
16
never been thought to raise any Constitutional
problem,” Chaplinsky v. New Hampshire, 315 U.S.
568, 571–72 (1942). The First Amendment also
permits the States to prohibit even fully protected
political speech where it satisfies strict scrutiny. See,
e.g., Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656,
1665–66 (2015). Moving beyond the Bill of Rights, the
Fourteenth Amendment’s Equal Protection Clause
provides, without qualification, that “[n]o State shall
. . . deny to any person within its jurisdiction the
equal protection of the laws.” U.S. Const. amend.
XIV, § 1. Yet, as this Court has explained, a State
may even use racial classifications where it satisfies
strict scrutiny; for example, to prevent prison riots,
see Johnson v. California, 543 U.S. 499, 512–14
(2005), or to comply with the Voting Rights Act, see
Bethune-Hill v. Virginia State Bd. of Elections, 137
S. Ct. 788, 800–02 (2017). It is unthinkable that
Casey endowed the unenumerated right to previability abortion with greater status than
enumerated rights like the freedom of speech or the
freedom from state-sponsored racial classification.
While the Seventh Circuit’s interpretation of
Casey wrongly “impute[s] to [this Court] decisions [it
has] not made about problems [it has] not faced,”
App. 122a (Easterbrook, J., dissenting from the
denial of rehearing en banc), if Casey’s “broad dicta”
is causing the lower courts to err, that is reason
enough for review here, see 14 Penn Plaza LLC v.
Pyett, 556 U.S. 247, 265 (2009). It is this Court’s role
to reevaluate periodically the soundness of the
17
statements in its decisions, Knox v. Serv. Emp. Int’l
Union, Local 1000, 567 U.S. 298, 311 (2012) (“[Abood]
is an anomaly.”), and, if it finds that precedent flawed,
Harris v. Quinn, 134 S. Ct. 2618, 2638 (2014)
(“Abood[ ] [has] questionable foundations”), to
reconsider it, Janus v. Am. Fed’n of State, Cty., &
Mun. Emps., Council 31, 138 S. Ct. 2448, 2460 (2018)
(“Abood is [ ] overruled.”).
B. The correct understanding of Casey’s undueburden standard is that it balances the burdens
imposed by the law, on the one hand, with the gravity
of the state interest that the law furthers, on the
other. The exactness required in this balancing is a
sliding-scale level of inquiry—ranging from rigorous
to permissive, based upon how substantial the law’s
level of interference with the right to abortion, if any.
See Gonzales, 550 U.S. at 146. Put another way,
“Casey’s undue-burden test [is a] right-specific test on
the spectrum between rational-basis and strictscrutiny review.” Whole Woman’s Health, 136 S. Ct.
at 2327 (Thomas, J., dissenting). It is a means-end
balancing test of the type this Court applies in
countless other contexts. So, when reviewing an
abortion law under the undue-burden standard—no
matter how rigorously calibrated—a court must
consider both “the burdens a law imposes on abortion
access together with the benefits those laws confer.”
Whole Woman’s Health, 136 S. Ct. at 2309.
Assuming, arguendo, that the most stringent form
of scrutiny applies to Indiana’s Antidiscrimination
18
Provision, the Provision satisfies such scrutiny. See
App. 21a (Manion, J., concurring in the judgment in
part, dissenting in part).
Antidiscrimination
Provisions like Indiana’s seek to prohibit an
invidiously discriminatory practice that violates the
Nation’s most core commitments: eliminating the
“targeting” of individuals for disfavored treatment
“because of [their] immutable human characteristics”
like race, sex, or disability. App. 23a (Manion, J.,
concurring in the judgment in part, dissenting in
part). Such laws further the most compelling of
government interests, and “it is hard to imagine
legislation more narrowly tailored to promote this
interest.” App. 35a (Manion, J., concurring in the
judgment in part, dissenting in part); see Washington
v. Glucksberg, 521 U.S. 702, 728–29 (1997).
That States have a compelling interest in stopping
such discriminatory practices follows from the logic
underlying this country’s legal protections against
private discrimination. This Court has held, for
example, that States have a “compelling interest in
eliminating discrimination against women,” even
where antidiscrimination laws conflict with First
Amendment associational values. See Bd. of Dirs. of
Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537,
549 (1987); Roberts v. U.S. Jaycees, 468 U.S. 609, 623
(1984); see, e.g., Wis. Stat. § 106.52. Similarly, both
Congress and the States may prohibit the “moral and
social wrong” of discrimination by private parties in
public accommodations. See Heart of Atlanta Motel,
Inc. v. United States, 379 U.S. 241, 257 (1964); e.g.,
19
Wis. Stat. § 106.52, and in other areas, see Bob Jones
Univ. v. United States, 461 U.S. 574, 604 (1983). And
both Congress and the States have legislated to forbid
discrimination
against
disabled
individuals,
including by enacting laws such as the Americans
With Disabilities Act, 42 U.S.C. § 12132, and the
Rehabilitation Act of 1973, 29 U.S.C. § 794. See Sch.
Bd. of Nassau Cty. v. Arline, 480 U.S. 273, 284 (1987);
e.g., Wis. Stat. § 111.321. Given that stopping private
discrimination based upon gender, race, or
disability—in
areas
as
diverse
as
public
accommodations, employment, and organization
membership—is a “compelling” state interest, N.Y.
State Club Ass’n v. City of New York, 487 U.S. 1, 14
n.5 (1988), the state interest in stopping the
elimination of classes of people based on these same
characteristics is even more compelling. Surely a
State that has the constitutional authority to protect
members of the Down syndrome community from
being discriminated against in employment or public
accommodations can protect that same community
from wholesale elimination by eugenic practices.
The evil that the Antidiscrimination Provision
seeks to combat is quite serious. Iceland is a canary
in the coal mine. “[T]he vast majority of women [in
Iceland]—close to 100 percent—who receive[ ] a
positive test for Down syndrome terminate[ ] their
pregnancy.” Julian Quinones & Arijeta Lajka, “What
kind of society do you want to live in?”: Inside the
country where Down syndrome is disappearing, CBS
News (Aug. 14, 2017), https://perma.cc/A5P4-8KBX.
20
Nor is Iceland alone, as the “estimated termination
rate” of unborn children with Down syndrome is 98
percent in Denmark. Id. Such countries “are now
celebrating the ‘eradication’ of Down syndrome” by
eliminating virtually all unborn children diagnosed
with this condition in utero. App. 33a (Manion, J.,
concurring in the judgment in part, dissenting in
part).
In Asia, “widespread sex-selective abortion” has
caused “disastrous effects.” App. 32a n.5 (Manion, J.,
concurring in the judgment in part, dissenting in
part).
Some experts have concluded that this
continent has 100 to 160 million “missing” women.
See Mara Hvistendahl, Unnatural Selection:
Choosing Boys over Girls, and the Consequences of a
World Full of Men 5–12 (2011). In India, “[o]ver the
course of several decades, 300,000 to 700,000 female
fetuses were selectively aborted [ ] each year.” Sital
Kalantry, How to Fix India’s Sex-Selection Problem,
N.Y. Times (Jul. 27, 2017), https://perma.cc/B4UNUDX3; accord Nicholas Eberstadt, The Global War
Against Baby Girls, The New Atlantis (2011),
https://perma.cc/ZCM9-MU3K (documenting similar
phenomenon in China, South Korea, and other
countries). This male favoring “is a symptom of
pervasive social, cultural, political and economic
injustices against women, and a manifest violation of
women’s human rights.” Sex Imbalances at Birth:
Current
Trends,
Consequences,
and
Policy
Implications, U.N. Population Fund Asia & Pacific
Regional Office (Aug. 2012), https://perma.cc/Y6CB-
21
GCK2; Gender-Biased Sex Selection, U.N. Population
Fund, https://perma.cc/KCT4-6T23?type=image. And
it causes social disruption as the generations mature.
“[F]eminists in Asia worry that as women become
scarce, they will be pressured into taking on domestic
roles and becoming housewives and mothers rather
than scientists and entrepreneurs.”
Mara
Hvistendahl, Where Have All the Girls Gone?, Foreign
Policy (June 27, 2011), https://perma.cc/2735-FQD6;
accord Simon Denyer & Annie Gowen, Too Many
Men, The Washington Post (Apr. 24, 2018),
https://perma.cc/2U6J-WC8G.
The United States is not immune from these evil
practices; indeed, the casus belli of this lawsuit is
Respondents’ unabashed desire to assist in such
discrimination. E.g., App. 5a. According to the best
available estimates, 50 percent or more of pregnant
women in the United States who learn that their child
will be born with Down syndrome eliminate that child
by abortion. Dist. Ct. Dkt. 54-2:13; see also, e.g.,
Jamie L. Natoli et al., Prenatal diagnosis of Down
syndrome: a systematic review of termination rates
(1995–2011), 32 Prenat. Diagn. 142, 142 (2012)
(between 61% and 93%), https://perma.cc/4JDVR69B. This practice has reduced the Down syndrome
community by 30 percent, Gert de Graaf et al.,
Estimates of the Live Births, Natural Losses, and
Elective Terminations with Down Syndrome in the
United States, 167A(4) Am. J. Medical Genetics 756–
67 (2015), https://perma.cc/A9VT-33V5, and the loss
may be expected to grow as the availability of early
22
prenatal screening increases, see Rachèl V. van
Schendel et al., What Do Parents of Children with
Down Syndrome Think about Non-Invasive Prenatal
Testing (NIPT)?, 26 J. Genetic Counseling 522 (2017),
https://perma.cc/D8YE-WQYU. This discriminatory
practice is partly due, no doubt, to the pressure that
some women experience from doctors to abort unborn
children with Down syndrome. Dist. Ct. Dkt. 54-1:6;
see, e.g., Hannah Korkow-Moradi et al., Common
Factors Contributing to the Adjustment Process of
Mothers of Children Diagnosed with Down Syndrome:
A Qualitative Study, 28 J. Fam. Psychotherapy 193,
197 (2017); Briana S. Nelson Goff et al., Receiving the
Initial Down Syndrome Diagnosis: A Comparison of
Prenatal and Postnatal Parent Group Experiences, 51
Intellectual & Developmental Disabilities 446, 455
(2013). For example, mothers of children with Down
syndrome “commonly express[ ]” that the medical
information they receive in prenatal counseling is
“biased or overly negative.” Gregory Kellogg et al.,
Attitudes of Mothers of Children with Down Syndrome
Towards Noninvasive Prenatal Testing, 23 J. Genetic
Counseling 805, 810 (2014), https://perma.cc/TG3Z8387. This bias takes the form of the “subtle shading
of information by counselors against persons with
Down syndrome,” Arthur L. Caplan, Chloe’s Law: A
Powerful Legislative Movement Challenging a Core
Ethical Norm of Genetic Testing, 13 PLoS Biol. 1, 2
(2015), https://perma.cc/A92V-CYGQ, or even open
advocacy for the “eradication” of Down syndrome via
“widespread acceptance of selective termination” of
unborn children with the condition, David A. Savitz,
23
How Far Can Prenatal Screening Go in Preventing
Birth Defects, 152 J. Pediatrics 3, 3 (2008),
https://perma.cc/HP2Q-JNKH (also calling this “a
desirable and attainable goal”).
Sex-selective abortions are common in some
communities in the United States. See Douglas
Almond & Lena Edlund, Son-biased sex ratios in the
2000 United States Census, 105 Proc. of the Nat’l
Acad. of Sci. 5861, 5861 (2008), https://
perma.cc/F9X5-KWX6; Jason Abrevaya, Are There
Missing Girls in the United States? Evidence from
Birth Data, 1(2) Am. Econ. J.: Applied Econ. 1–34
(2009), https://perma.cc/KXJ9-2XW8.
A recent
Gallup survey confirms that the longstanding
“tendency for American adults to express overall
preferences for a boy over a girl” persists today.
Frank Newport, Slight Preference for Having Boy
Children Persists in U.S., Gallup (July 5, 2018),
https://perma.cc/36SP-AYW2 (noting that this bias
towards boys is greater for “Americans aged 18 to
29”). As reported in The New York Times, a physician
described her experience with this bias in patients
that are pregnant with their third child: “‘If it’s a boy,
they keep it. If it’s a girl, they’ll abort.’” Sam Roberts,
U.S. Births Hint at Bias for Boys in Some Asians, N.Y.
Times (June 14, 2009), https://perma.cc/5RL8-3D8D.
As with discriminatory abortions based on disability
status, the negative effects of sex-selective abortions
may only be expected to grow in the future: “[a]s the
ability to . . . create ‘designer babies’ with specified
characteristics [like sex] becomes more of a reality,”
24
the bias toward children of a certain sex could even
more directly affect fertility patterns. Newport,
supra.
The State combating this invidious discrimination
by enacting its nondiscrimination interests into law
sends a powerful signal to members of minority
communities that it is “inhumane” to terminate them,
thereby affirming the “profound respect” that the
State holds for all people. See Gonzales, 550 U.S. at
157 (citation omitted).
As Frank Stephens, a
disability-rights activist who himself has Down
syndrome, powerfully testified before Congress, “a
notion is being sold that maybe we don’t need to
continue to do research concerning Down syndrome.
Why? Because there are pre-natal screens that will
identify Down syndrome in the womb, and we can just
terminate those pregnancies.”
Frank Stephens,
Testimony Before House Subcommittee on Labor,
Health and Human Services, and Education 1 (Oct.
25, 2017), https://perma.cc/S73U-GYKS.
Recent
efforts to “eliminate” Down syndrome are nothing
more than “people pushing [a] particular ‘final
solution’ [ ] that people [with Down syndrome] should
not exist. They are saying that [people with Down
syndrome] have too little value to exist.” Id. By
enacting laws like Indiana’s Antidiscrimination
Provision, the State affirms Mr. Stephens’ poignant
claim that those like him are equal human beings. Id.
These laws thus advance the vital cause of
demonstrating to society that all human beings—
25
including women, racial minorities, and those with
disabilities—have lives “worth living.”
Finally,
that
Indiana’s Antidiscrimination
Provision includes pre-viability abortions does not
affect its constitutionality because the State’s
interests do not correspond to the unborn child’s stage
of development.
In the traditional abortionregulation context, this Court has held that the
State’s interest in protecting an unborn child’s life is
“not strong enough” to prohibit a pre-viability
abortion. See Casey, 505 U.S. at 846, 860. The logic
is that the more developed the unborn child, the
stronger the State’s interest in keeping that child
alive. Id. This reasoning has no applicability where
the strength of the State’s interests does not
correspond to the unborn child’s stage of
development. The State’s interest is the prevention of
the discriminatory elimination of classes of human
beings; it makes no difference from the point of view
of that interest if unborn children with Down
syndrome are systematically eliminated at 10 weeks
or 25 weeks, if the result is the same. Genetic
screening for Down syndrome now regularly occurs
“as early as 10 weeks” into the pregnancy, well before
the unborn child is viable. See Nat’l Down Syndrome
Soc’y, Understanding a Diagnosis of Down Syndrome,
https://perma.cc/249P-5FD3; accord van Schendel,
supra, at 525.
So to prohibit effectively the
discriminatory elimination of this class of society, the
Provision must operate pre-viability.
26
CONCLUSION
This Court should grant the Petition.
Respectfully submitted,
BRAD D. SCHIMEL
Attorney General
STATE OF WISCONSIN
DEPARTMENT OF JUSTICE
17 West Main Street
Madison, WI 53703
tseytlinm@doj.state.wi.us
(608) 267-9323
MISHA TSEYTLIN
Solicitor General
Counsel of Record
KEVIN M. LEROY
Deputy Solicitor
General
Attorneys for Amicus
Curiae State of
Wisconsin
November 2018
[Additional counsel
listed on next page]
27
ADDITIONAL COUNSEL
STEVE MARSHALL
Alabama Attorney
General
DOUGLAS J. PETERSON
Nebraska Attorney
General
MARK BRNOVICH
Arizona Attorney
General
MICHAEL DEWINE
Ohio Attorney
General
LESLIE RUTLEDGE
Arkansas Attorney
General
MIKE HUNTER
Oklahoma Attorney
General
CHRISTOPHER M. CARR
Georgia Attorney
General
ALAN WILSON
South Carolina
Attorney General
LAWRENCE G. WASDEN
Idaho Attorney
General
MARTY J. JACKLEY
South Dakota
Attorney General
DEREK SCHMIDT
Kansas Attorney
General
KEN PAXTON
Texas Attorney
General
JEFF LANDRY
Louisiana Attorney
General
SEAN D. REYES
Utah Attorney
General
BILL SCHUETTE
Michigan Attorney
General
PATRICK MORRISEY
West Virginia
Attorney General
JOSHUA D. HAWLEY
Missouri Attorney
General
PHIL BRYANT
Governor of the State
of Mississippi
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