Amicus Curiae Brief — Leslie Rutledge, Attorney General of Arkansas, et al., Petitioners v. Little Rock Family Planning Services, et al.

Supreme Court briefMay 13, 2021

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No. 20-1434

In the

Supreme Court of the United States

LESLIE RUTLEDGE, ET AL.,

Petitioners,

LITTLE ROCK FAMILY PLANNING SERVICES, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

BRIEF OF THE STATE OF MISSOURI AND

TWENTY-ONE OTHER STATES AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

ERIC S. SCHMITT

Missouri Attorney General

D. JOHN SAUER

Solicitor General

Counsel of Record

JEFF P. JOHNSON

Deputy Solicitor General

OFFICE OF THE MISSOURI

ATTORNEY GENERAL

Supreme Court Building

P.O. Box 899

Jefferson City, MO 65102

(573) 751-3321

John.Sauer@ago.mo.gov

Counsel for Amici Curiae

(Additional Counsel listed on signature page)

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ...............................1

ARGUMENT ...............................................................3

Arkansas’s Prohibition Against Aborting

Unborn Children Solely Because They May

Have Down Syndrome Satisfies Any Level of

Constitutional Scrutiny .............................3

A. Arkansas’s law advances at least eight

compelling state interests .....................4

B. Arkansas’s law is narrowly tailored ... 14

II.

Arkansas’s Prohibition Against Down

Syndrome Abortions Is Not Per Se Invalid

Under Casey ............................................. 16

CONCLUSION ....................................................22

TABLE OF AUTHORITIES

Cases

Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte,

481 U.S. 537 (1987) ..................................................4

Bethune-Hill v. Virginia State Bd. of Elections,

137 S. Ct. 788 (2017) .............................................. 19

Bob Jones Univ. v. United States,

461 U.S. 574 (1983) .............................................. 4, 5

Box v. Planned Parenthood of Ind. and Ky.,

139 S. Ct. 1780 (2019) .......................... 2, 4, 5, 10, 16

Chaplinksy v. New Hampshire,

315 U.S. 568 (1942) ................................................ 19

FEC v. NRA Political Victory Fund,

513 U.S. 88 (1994) .................................................. 17

Fisher v. University of Texas,

136 S. Ct. 2198 (2016) ............................................ 19

Gonzales v. Carhart,

550 U.S. 124 (2004) .................. 10, 11, 14, 18, 21, 22

Heart of Atlanta Motel v. United States,

379 U.S. 241 (1964) ..................................................4

Illinois v. Lidster,

540 U.S. 419 (2004) ................................................ 17

Johnson v. California,

543 U.S. 499 (2005) ................................................ 19

iii

Kovacs v. Cooper,

336 U.S. 77 (1949) .................................................. 19

Lewis v. Casey,

518 U.S. 343 (1996) ................................................ 17

Little Rock Fam. Plan. Servs. v. Rutledge,

984 F.3d 682 (8th Cir. 2021) ....................................3

Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of

Ind. State Dep’t of Health,

917 F.3d 532 (7th Cir. 2018) .................................. 16

Planned Parenthood of Indiana & Kentucky, Inc. v.

Comm’r of Indiana State Dep’t of Health,

888 F.3d 300 (7th Cir.) ................. 3, 9, 13, 14, 15, 19

Planned Parenthood of Southeastern Pennsylvania v.

Casey,

505 U.S. 833 (1992) .......................... 4, 17, 18, 19, 20

Preterm-Cleveland v. Himes,

940 F.3d 318 (6th Cir. 2019) .................................. 18

Preterm-Cleveland v. McCloud,

994 F.3d 512 (6th Cir. April 13, 2021) ....................3

Roberts v. U.S. Jaycees,

468 U.S. 609 (1984) ..................................................4

Roe v. Wade,

410 U.S. 113 (1973) ................................................ 17

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) .................................................. 17

United States v. L.A. Tucker Truck Lines, Inc.,

344 U.S. 33 (1952) .................................................. 17

Washington v. Glucksberg,

521 U.S. 702 (1997) .......................................... 10, 21

Williams-Yulee v. Florida Bar,

575 U.S 433 (2015) ................................................. 19

Statutes

29 U.S.C. § 794 ............................................................4

42 U.S.C. § 12132 ........................................................4

Ariz. Rev. Stat. § 13-3603.02 ......................................2

Ark. Code Ann. 20-16-2102 .........................................3

Ark. Code Ann. § 20-16-2103(a) ................................ 15

HB 1110, 96th Leg. Sess. (S.D. 2021) ........................2

Ind. Code § 16-34-4-6 ..................................................2

Ky. Rev. Stat. § 311.731(2)(c) ......................................2

La. Rev. Stat. § 40:1061.1.2 ........................................2

Miss. Code Ann. § 41-41-407.......................................2

Mo. Rev. Stat. § 188.038.1(6) .................................... 12

Mo. Rev. Stat. § 188.038.2 .................................... 2, 13

N.D. Cent. Code § 14-02.1-04 ......................................2

Ohio Rev. Code § 2919.10(B).......................................2

SD Stat. § 34-23A-90 ...................................................3

Tenn. Code Ann. § 39-15-217 ......................................3

Utah Code § 76-7-302.4 ...............................................3

Other Authorities

AM. COLLEGE OF OBSTETRICIANS AND GYNECOLOGISTS,

COMMITTEE OPINION NO. 393: NEWBORN SCREENING

(2007) ....................................................................... 7

Peter A. Benn & Audrey R. Chapman, Practical and

Ethical Considerations of Noninvasive Prenatal

Diagnosis,

301 J. AM. MED. ASS’N 2154, 2155 (2009) ............ 13

Remi Bertrand, Parents’ Perspective on Having a

Child with Down Syndrome in France,

179A AM. J. MED. GENET. 770, 781 (2019) ........... 10

LD Bryant, et al., Descriptive Information About

Down Syndrome: a Content Analysis of Serum

Screening Leaflets, PRENATAL DIAGNOSIS 1057–63

(Dec. 2001) .............................................................. 9

Arthur L. Caplan, Chloe’s Law: A Powerful

Legislative Movement Challenging a Core Ethical

Norm of Genetic Testing, PLOS BIOLOGY 13(8)

(Aug. 2015) .......................................................... 6, 9

Alexandra DeSanctis, Iceland Eliminates People with

Down Syndrome, NATIONAL REVIEW

(Aug. 16, 2017) ........................................................ 9

Duff & Campbell, Moral and Ethical Dilemmas in

the Special-Care Nursery, 289 N. ENG. J. MED. 89

(Oct. 1973) ............................................................... 5

Gabriel Fernandez, Amy Bockerstette to Become First

Person with Down Syndrome to Compete in College

National Championship, CBS SPORTS.COM

(May 5, 2021) .......................................................... 2

Michael A. Grodin, et al., The Nazi Physicians as

Leaders in Eugenics and “Euthanasia”: Lessons for

Today, 108 AM. J. PUB. HEALTH 53–57

(Jan. 2018) ............................................................ 11

A. Guibilini, et al., After-Birth Abortion: Why Should

the Baby Live?, 39 J. OF MED. ETHICS 261-63

(2013) .................................................................... 12

Guttmacher Institute, State Legislation Tracker:

Abortion Due to Genetic Anomaly Banned (visited

May 5, 2021) ........................................................... 3

Sujatha Jesudason et al., Sex Selection in America:

Why It Persists and How We Can Change It, THE

ATLANTIC (May 31, 2012) .................................. 11

J. Johnston, et al., Supporting Women’s Autonomy in

Prenatal Testing, N. ENG. J. MED. 505–507

(Aug. 2017) .............................................................. 7

Lauren Knight, On Her Way: Grace’s Bus Stop, ST.

LOUIS MAGAZINE (March 21, 2014) ....................... 14

vii

KL Lawson, et al., The Portrayal of Down Syndrome

in Prenatal Screening Information Pamphlets, 34 J.

OBST. & GYN. CANADA 760–768 (Aug. 2012) ........ 14

Harry J. Lieman, M.D., et al., Sex Selection for

Family Balancing, AMA JOURNAL OF ETHICS

(2014) .................................................................... 11

Heidi Lindh et al., Characteristics and Perspectives of

Families Waiting to Adopt a Child with Down

Syndrome, GENETICS IN MED. (April 2007) ............ 9

Rita L. Marker et al., Euthanasia: a Historical

Overview, MD. J. CONTEMP. LEGAL ISSUES 2(2)

257–298 (1991) ...................................................... 11

T. Marteau, et al., Counseling Following Diagnosis of

a Fetal Abnormality: the Differing Approaches of

Obstetricians, Clinical Geneticists, and Genetic

Nurses, 31 J. MED. GENETICS 864–867

(Nov. 1994) .............................................................. 8

Martin J. McCaffery, Trisomy 13 and 18: Selecting

the road not previously taken, 172 AM. J. OF MED.

GENETICS, COMMENTARY, SEMINARS IN MEDICAL

GENETICS (Aug. 13, 2016) ....................................... 6

Linda McCabe, et al., Call for Change in Prenatal

Counseling for Down Syndrome, 158A AM. J. OF

MED. GENETICS 482, 482 (Feb. 7, 2012) ................. 8

Jenny McCoy, Chris Nikic Wants to Be the First

Ironman Finisher with Down Syndrome, RUNNER’S

WORLD (updated Nov. 7, 2020) ........................... 1, 2

viii

Pet., Infant Doe v. Bloomington Hosp., et al., at 8

(No. 83-437), denied 104 S. Ct. 394

(Nov. 7, 1983) .......................................................... 5

CD Roberts, et al., The Role of Genetic Counseling in

the Elective Termination of Pregnancies Involving

Fetuses with Disabilities, 36 J. SPECIAL EDUC. 48–

55 (Spring 2002) ..................................................... 7

Kate Santich, Maitland Triathlete Chris Nikic 1st

Person With Down Syndrome to Finish Ironman,

ORLANDO SENTINEL (Nov. 9, 2020) ......................... 1

Marsha Saxton, Disability Rights and Selective

Abortion, in ABORTION WARS: A HALF CENTURY OF

STRUGGLE: 1950 TO 2000 (1998) ............................ 14

Peter Singer, Pulling Back the Curtain on the Mercy

Killing of Newborns, L.A. TIMES

(Mar. 11, 2005) ...................................................... 12

Brian Skotko, et al., Family Perspectives about Down

Syndrome, AM. J. MED. GENETICS ANNUAL 930–41

(Apr. 2016) .............................................................. 9

Testimony of Frank Stephens, Down Syndrome:

Update on the State of the Science & Potential for

Discoveries Across Other Major Diseases Before the

H. Subcomm. on Labor, Health and Human Servs.,

and Ed. Comm. on Appropriations, at 2

(Oct. 25, 2017) ........................................... 12, 13, 14

Kurt Streeter, Chris Nikic, You Are an Ironman. And

Your Journey Is Remarkable, N.Y. TIMES

(Nov. 16, 2020) ...................................................... 21

Michelle Sie Whitten, The Story of Two Syndromes,

Global Down Syndrome Foundation (available at

https://bit.ly/3vOaXIs) ........................................ 5, 6

George Will, The Real Down Syndrome Problem:

Accepting Genocide, WASH. POST

(March 14, 2018) ..................................................... 7

INTEREST OF AMICI CURIAE1

On November 7, 2020, Chris Nikic became the first

person with Down syndrome to complete an Ironman

triathlon. The Ironman is a punishing test of physical

endurance, involving a 2.4-mile swim, 112-mile bike

ride, and a full marathon, completed consecutively

within a limited time. Jenny McCoy, Chris Nikic

Wants to Be the First Ironman Finisher with Down

Syndrome, RUNNER’S WORLD (updated Nov. 7, 2020).

Chris’s father said, “From the time he was born, we

were told by everyone that he’d never do anything or

amount to anything or be able to accomplish anything

beyond being able to tie his own shoes.” Kate Santich,

Maitland Triathlete Chris Nikic 1st Person With

Down Syndrome to Finish Ironman, ORLANDO

SENTINEL (Nov. 9, 2020). “The doctors and experts

said I couldn’t do anything,” Chris told a reporter after

his triumph. “So I said, ‘Doctor! Experts! You need

to stop doing this to me. You’re wrong!’” Id.

In 2018, Amy Bockerstette became the first person

with Down syndrome to receive an athletic

scholarship to college. A golfer from Arizona, she rose

to international fame when she played alongside Gary

Woodland at a Special Olympics event. Before sinking

a putt for par on one of the most famed holes in golf,

hole 16 at TPC Scottsdale, Amy said, “yeah, I got this.”

The video of her putt and optimistic demeanor

garnered over 43 million views on social media

platforms. On May 10, 2021, Amy “will make history

… as she becomes the first person with Down

syndrome to compete in a national collegiate athletic

1 All counsel of record received timely notice of the intent

to file this amicus brief under Rule 37.2.

championship,

the

NJCAA

golf

national

championship.” Gabriel Fernandez, Amy Bockerstette

to Become First Person with Down Syndrome to

Compete in College National Championship, CBS

SPORTS.COM (May 5, 2021).

The inspiration Chris Nikic and Amy Bockerstette

provides is irreplaceable.

People with Down

syndrome add unique joy, beauty, and diversity to our

society. Yet the abortion of children with Down

syndrome approaches genocidal levels, threatening

the Down syndrome community with complete

elimination. “[A]bortion is an act rife with the

potential for eugenic manipulation.” Box v. Planned

Parenthood of Ind. and Ky., 139 S. Ct. 1780, 1787

(2019) (Thomas, J., concurring). All States share

Arkansas’s compelling interest in preventing the

eradication of people with Down syndrome through

the practice of eugenic abortion.

Amici curiae are the States of Missouri, Alabama,

Alaska, Arizona, Florida, Georgia, Idaho, Indiana,

Kansas, Louisiana, Mississippi, Montana, Nebraska,

North Dakota, Ohio, Oklahoma, South Carolina,

South Dakota, Tennessee, Texas, Utah, and West

Virginia. Amici have a strong interest in protecting

their own Down syndrome populations and

preventing the extermination of people with Down

syndrome from society. At least eleven States have

enacted laws similar to Arkansas’s law to protect

disabled communities from eugenic abortion. See Mo.

Rev. Stat. § 188.038.2; 2021 Ariz. Sess. Laws ch. 286,

§ 2 (amending Ariz. Rev. Stat. § 13-3603.02); Ind.

Code § 16-34-4-6; N.D. Cent. Code § 14-02.1-04; Ohio

Rev. Code § 2919.10(B); Ky. Rev. Stat. § 311.731(2)(c);

La. Rev. Stat. § 40:1061.1.2; Miss. Code Ann. § 41-41407; HB 1110, 96th Leg. Sess. (S.D. 2021) (enacted

and codified at SD Stat. § 34-23A-90 (eff. July 1,

2021)); Tenn. Code Ann. § 39-15-217; Utah Code § 767-302.4. Similar legislation is under consideration in

many other states. Guttmacher Institute, State

Legislation Tracker: Abortion Due to Genetic Anomaly

Banned (visited May 5, 2021).2 Since Arkansas’s

petition was filed, a three-circuit split on the validity

of such laws has emerged. Preterm-Cleveland v.

McCloud, 994 F.3d 512 (6th Cir. April 13, 2021) (en

banc) (upholding Ohio’s law); Little Rock Fam. Plan.

Servs. v. Rutledge, 984 F.3d 682, 690 (8th Cir. 2021)

(invalidating Arkansas’s law); Planned Parenthood of

Indiana & Kentucky, Inc. v. Comm’r of Indiana State

Dep’t of Health, 888 F.3d 300, 306 (7th Cir.), rev’d in

part on other grounds sub nom. Box v. Planned

Parenthood of Indiana & Kentucky, Inc., 139 S. Ct.

1780 (2019) (invalidating Indiana’s law). A suit

challenging Missouri’s law is on appeal in the Eighth

Circuit. Reproductive Health Services v. Parson, Nos.

19-2882, 19-3134 (8th Cir. argued Sept. 24, 2020).

The outcome of the current petition could control the

validity of all such laws. Amici with such laws have a

strong interest in defending their validity, and all

amici have a strong interest in retaining their

sovereign authority to enact such laws as they see fit.

ARGUMENT

Arkansas’s Prohibition Against Aborting

Unborn Children Solely Because They May

Have Down Syndrome Satisfies Any Level of

Constitutional Scrutiny.

Arkansas’s Down Syndrome Discrimination by

Abortion Prohibition Act, Ark. Code Ann. 20-16-2102

2 https://www.guttmacher.org/state-policy.

to 2107, is carefully tailored to advance at least eight

compelling state interests. Thus, it satisfies strict

scrutiny or any other level of scrutiny, including

Planned Parenthood of Southeastern Pennsylvania v.

Casey’s less stringent “undue burden” standard. 505

U.S. 833, 876 (1992).

Arkansas’s law advances at least eight

compelling state interests.

First, as Arkansas contends, its law advances the

State’s compelling interest in protecting an entire

class of persons from being targeted for elimination

solely because of disability. See Pet. 25–27. As Justice

Thomas noted in Box: “[T]his law and other laws like

it promote a State’s compelling interest in preventing

abortion from becoming a tool of modern-day

eugenics.” Box v. Planned Parenthood of Indiana and

Kentucky, Inc., 139 S. Ct. 1780, 1783 (2019) (Thomas,

J., concurring). In other contexts, the Court has

recognized that the States have a “compelling interest

in eliminating discrimination” that justifies some

restrictions on rights, even those that are actually

enumerated in the Constitution. 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). Both Congress and the States may prohibit

the “moral and social wrong” of invidious

discrimination by private parties. Heart of Atlanta

Motel v. United States, 379 U.S. 241, 257 (1964); Bob

Jones Univ. v. United States, 461 U.S. 574, 604 (1983).

Eliminating invidious discrimination against the

disabled is a compelling state interest. See 42 U.S.C.

§ 12132; 29 U.S.C. § 794.

Second, Arkansas’s law advances the State’s

compelling interest in eradicating historical animus

and bias against persons with Down syndrome. The

history of medicalized discrimination against persons

with Down syndrome is both recent and appalling,

and the Down syndrome provision serves to eradicate

the ongoing vestiges of that history.

“Before the 1980s, the overwhelming majority of

people with Down syndrome in the United States were

placed in institutions, often times as infants or young

children.” Michelle Sie Whitten, The Story of Two

Syndromes, Global Down Syndrome Foundation

(available at https://bit.ly/3vOaXIs).

“[M]ost

professionals considered it impossible for people with

Down syndrome to learn how to speak properly, let

alone read and write,” and “most Americans believed

they should not be allowed in public spaces such as

movie theaters, malls or parks.”

Id.

This

discrimination was rooted in the eugenic movement’s

rejection of the “feeble-minded” as “unfit” and worthy

of “elimination.” Box, 139 S. Ct. at 1785–86 (Thomas,

J., concurring).

These prejudices against the disabled were deeply

entrenched in the medical profession. In 1973, a study

reported that Yale University NICU routinely

deprived disabled infants of simple, life-saving

treatments, leaving them to die. Duff & Campbell,

Moral and Ethical Dilemmas in the Special-Care

Nursery, 289 N. ENG. J. MED. 89 (Oct. 1973). Dr.

Walter L. Owens, the obstetrician in the infamous

“Baby Doe” case from Indiana, in court testimony

described children with Down syndrome as “mere

blobs.” Pet., Infant Doe v. Bloomington Hosp., et al.,

at 8 (No. 83-437), denied 104 S. Ct. 394 (Nov. 7, 1983).

This medicalized discrimination was literally fatal

for persons with Down syndrome. “Pictures of these

institutions and their ‘inmates’ show us bedlam –

cruel and unusual punishment for innocents whose

only crime is to have been born differently-abled.”

Whitten, supra. “Because of neglect, abuse, and lack

of access to education and medical care, people with

Down syndrome would die an early death.” Id. In

1960, the life expectancy for a person with Down

syndrome was 10 years. Pet. 4. Today that has

increased to 60 years. Whitten, supra. It was not

until well into the 1980s that the medical profession

uniformly

abandoned

recommendations

for

institutionalization of people with Down syndrome—

institutionalization that led to early death. Martin J.

McCaffery, Trisomy 13 and 18: Selecting the road not

previously taken, 172 AM. J. OF MED. GENETICS,

COMMENTARY, SEMINARS IN MEDICAL GENETICS (Aug.

13, 2016). Political action spearheaded by parent and

disability rights groups, not physicians, forced the

medical community to extend commonly accepted

medical interventions to Down syndrome patients. Id.

Despite radical changes in both treatment and

societal acceptance, this historical animus was not

eradicated from the medical profession.

The

persistent medicalized biases against Down syndrome

continue in the widespread practice of eugenic

abortion. As Arkansas compellingly describes, Pet. 5–

7, the medical profession’s biases continue to

influence parents of Down syndrome children at their

point of greatest vulnerability—i.e., immediately

upon learning of a prenatal screening or diagnosis of

Down syndrome. “When it comes to testing for Down

syndrome, the impact of genetic testing and

counseling is clear—abortions.” Arthur L. Caplan,

Chloe’s Law: A Powerful Legislative Movement

Challenging a Core Ethical Norm of Genetic Testing,

PLOS BIOLOGY 13(8) (Aug. 2015).

The institutionalized medical pessimism which

surrounds Down syndrome begins with ACOG

recommendations for universal prenatal genetic

screening. McCaffrey, supra; see also AM. COLLEGE OF

OBSTETRICIANS AND GYNECOLOGISTS, COMMITTEE

OPINION NO. 393: NEWBORN SCREENING (2007).

Because Down syndrome has no prenatal treatment,

such screening may serve to create the opportunity to

abort the disabled. Unlike screening programs for a

host of disorders, when it comes to Down syndrome,

these prenatal genetic screenings offer no corrective

intervention or earlier introduction of therapies. The

“cure” for Down syndrome is the elimination of the

infant. Prenatal genetic-screening techniques, when

applied to Down syndrome, have thus been described

as “search-and-destroy technologies.” George Will,

The Real Down Syndrome Problem: Accepting

Genocide, WASH. POST (March 14, 2018).

When screening or diagnostic tests report the

possibility of Down syndrome, the counseling process

heavily favors abortion.

Although non-directive

counseling is a stated aim for prenatal counseling,

medical anthropologists have found that these

practices include “the ‘collective fiction’ that screening

can improve fetuses’ health and a ‘collective silence’

regarding the fact that a positive screening result

could eventually lead to a decision to abort.” J.

Johnston, et al., Supporting Women’s Autonomy in

Prenatal Testing, N. ENG. J. MED. 505–507 (Aug.

2017).

One survey found that, among women

receiving genetic counseling, “83% reported they did

not receive balanced counseling regarding the quality

of life for children with disabilities.” CD Roberts, et

al., The Role of Genetic Counseling in the Elective

Termination of Pregnancies Involving Fetuses with

Disabilities, 36 J. SPECIAL EDUC. 48–55 (Spring 2002).

Another survey of prenatal screening pamphlets

found that nearly one half of the statements portrayed

a negative message pertaining to Down syndrome,

while only 2.4% of the statements conveyed a positive

image of Down syndrome. KL Lawson, et al., The

Portrayal of Down Syndrome in Prenatal Screening

Information Pamphlets, 34 J. OBST. & GYN. CANADA

760–768 (Aug. 2012). Another survey of medical

professionals found that “[f]or Down syndrome, 60%

of obstetricians and 40% of geneticists reported

counseling for termination of pregnancy in a directive

manner.” T. Marteau, et al., Counseling Following

Diagnosis of a Fetal Abnormality: the Differing

Approaches of Obstetricians, Clinical Geneticists, and

Genetic Nurses, 31 J. MED. GENETICS 864–867 (Nov.

1994). Yet another survey found that “[g]enetic

counselors were more likely to emphasize clinical

information and negative aspects of the diagnosis,

while parents valued information regarding the

abilities and potential of individuals with Down

syndrome.” Linda McCabe, et al., Call for Change in

Prenatal Counseling for Down Syndrome, 158A AM. J.

OF MED. GENETICS 482, 482 (Feb. 7, 2012). Iceland,

where the elimination rate for Down syndrome is

virtually 100 percent, reportedly relies on “heavyhanded genetic counseling” to achieve that goal. Will,

The Real Down Syndrome Problem, supra.

In short, “women report feeling pressured by their

doctors . . . to choose abortion if the test reveals Down

syndrome or other abnormalities. It is taken for

granted in the medical community that no woman

would carry a Down-syndrome pregnancy to term.”

Alexandra DeSanctis, Iceland Eliminates People with

Down Syndrome, NATIONAL REVIEW (Aug. 16, 2017),

https://bit.ly/3w013TU. And “the impact of genetic

testing and counseling is clear—abortions.” Caplan,

supra. These negative attitudes of the medical

profession lag far behind those of society as a whole,

which has come to accept and celebrate people with

Down syndrome. Indeed, “[m]any families are eager

to adopt children with Down syndrome,” and there are

long wait lists to do so.

Heidi Lindh et al.,

Characteristics and Perspectives of Families Waiting

to Adopt a Child with Down Syndrome, GENETICS IN

MED. (April 2007).

Further, the negative focus of genetic counseling has

no basis in reality. As Arkansas notes, Pet. 4–5,

studies find overwhelming evidence of happiness, joy,

and personal satisfaction in the lives of people with

Down syndrome and their families. These surveys

demonstrate “that the overwhelming majority of

people with Down syndrome they surveyed indicate

they live happy and fulfilling lives,” and that “the

overwhelming majority of parents surveyed are happy

with their decision to have their child with Down

syndrome and indicate that their sons and daughters

are sources of great love and pride.” LD Bryant, et al.,

Descriptive Information About Down Syndrome: a

Content Analysis of Serum Screening Leaflets,

PRENATAL DIAGNOSIS 1057–63 (Dec. 2001). Medical

literature and parent reports clearly show that

families with a Down syndrome member believe they

are better for it, at rates as high as 97 to 99 percent.

Brian Skotko, et al., Family Perspectives about Down

Syndrome, AM. J. MED. GENETICS ANNUAL 930–41

(Apr. 2016); see also Planned Parenthood of Ind. and

Ky., Inc. v. Comm’r of Ind. State Dep’t of Health, 888

F.3d 300, 315–16 (7th Cir. 2018) (“PPINK”) (Manion,

J., concurring in the judgment in part and dissenting

in part). A study in France reported the following

typical reaction from a parent of a child with Down

syndrome: “It is the most beautiful experience of my

life. I have no regret and would not change anything

if it was possible.”

Remi Bertrand, Parents’

Perspective on Having a Child with Down Syndrome

in France, 179A AM. J. MED. GENET. 770, 781 (2019).

Yet, notwithstanding the beauty and happiness

associated with Down syndrome in real life,

medicalized bias results in the abortion of children

with Down syndrome at genocidal levels. In the

United States, abortion rates for Down syndrome

infants are at least 67 percent after a prenatal

diagnosis, and may be as high as 93 percent. Pet. 8.

“In Iceland, the abortion rate for children diagnosed

with Down syndrome in utero approaches 100%,” and

the rate is “98% in Denmark, 90% in the United

Kingdom, 77% in France, and 67% in the United

States.” Box, 139 S. Ct. at 1790–91 (Thomas, J.,

concurring). These staggering numbers are the latest

vestige of deeply entrenched, historical animus

against people with Down syndrome that persists in

the medical profession, and Arkansas has a

compelling interest in eradicating this animus.

Third, Arkansas’s law safeguards the integrity of

the medical profession by preventing doctors from

abandoning their traditional role as healers to become

the killers of disabled populations. “There can be no

doubt the government ‘has an interest in protecting

the integrity and ethics of the medical profession.’”

Gonzales v. Carhart, 550 U.S. 124, 157 (2004) (quoting

Washington v. Glucksberg, 521 U.S. 702, 731 (1997)).

The Hippocratic tradition of “complete separation

between killing and curing” in the medical profession

is a “priceless possession which we cannot afford to

tarnish.” Margaret Mead, quoted in Rita L. Marker et

al., Euthanasia: a Historical Overview, MD. J.

CONTEMP. LEGAL ISSUES 2(2) 257–298 (1991).

Permitting the medical profession to become complicit

in targeting disabled people for elimination

undermines this “priceless possession.” Id. Recent

history

illustrates

the

medical

profession’s

susceptibility to corruption through the medicalized

killing of the disabled. See Michael A. Grodin, et al.,

The Nazi Physicians as Leaders in Eugenics and

“Euthanasia”: Lessons for Today, 108 AM. J. PUB.

HEALTH 53–57 (Jan. 2018). All citizens should be

deeply uncomfortable with physicians’ complicity in

killing disabled populations, and all States have a

compelling interest in preserving the integrity and

ethics of the medical profession.

Fourth, Arkansas’s law draws a clear boundary

against additional eugenic practices targeted at

disabled persons and others. This Court “has in the

past confirmed the validity of drawing boundaries to

prevent certain practices that extinguish life and are

close to actions that are condemned,” such as

infanticide and euthanasia. Gonzales, 550 U.S. at

158. Sex-selective abortion already occurs in the

United States under the euphemism “family

balancing.” See, e.g., Harry J. Lieman, M.D., et al.,

Sex Selection for Family Balancing, AMA JOURNAL OF

ETHICS (2014); see also Sujatha Jesudason et al., Sex

Selection in America: Why It Persists and How We Can

Change It, THE ATLANTIC (May 31, 2012). Prominent

ethicists have sought to justify not just abortion, but

also infanticide of disabled children, and such

infanticide is already practiced in the Netherlands in

some instances. Peter Singer, Pulling Back the

Curtain on the Mercy Killing of Newborns, L.A. TIMES

(Mar. 11, 2005); A. Guibilini, et al., After-Birth

Abortion: Why Should the Baby Live?, 39 J. OF MED.

ETHICS 261-63 (2013) (arguing that infanticide of

children with Down syndrome, among others, is

justified). As one man with Down syndrome testified

before Congress, “we are the canary in the eugenics

coal mine. Genomic research isn’t going to stop at

screening for Down syndrome. It won’t be long before

we can identify all manner of potentially expensive

medical or personality ‘deviations’ in the womb.”

Testimony of Frank Stephens, Down Syndrome:

Update on the State of the Science & Potential for

Discoveries Across Other Major Diseases Before the H.

Subcomm. on Labor, Health and Human Servs., and

Ed. Comm. on Appropriations, at 2 (Oct. 25, 2017)

(“Frank

Stephens’

Testimony”),

https://bit.ly/33AYHPk.

Fifth, as Arkansas emphasizes, its law counters the

stigma that eugenic abortion currently imposes on

living persons with Down syndrome and other

disabilities. Pet. 27–29. As the Missouri General

Assembly found in passing a similar Down syndrome

provision: “Eliminating unborn children with Down

Syndrome raises grave concerns for the lives of those

who do live with disabilities. It … fosters a false sense

that disability is something that could have been

avoidable, and is likely to increase the stigma

associated with disability.”

Mo. Rev. Stat.

§ 188.038.1(6). “Permitting women who otherwise

want to bear a child to choose abortion because the

child has Down syndrome … increases the ‘stigma

associated with having a genetic disorder.’” PPINK,

888 F.3d at 315 (Manion, J., concurring in the

judgment) (quoting Peter A. Benn & Audrey R.

Chapman, Practical and Ethical Considerations of

Noninvasive Prenatal Diagnosis, 301 J. AM. MED.

ASS’N 2154, 2155 (2009)). Arkansas’s law both

provides and reinforces the contrary, positive, antistigmatic message of people like Frank Stephens: “I

AM A MAN WITH DOWN SYNDROME AND MY

LIFE IS WORTH LIVING.”

Frank Stephens’

Testimony, at 1 (emphasis in original).

Sixth, Arkansas’s law ensures that the existing

Down syndrome community does not become starved

of resources for research and care for individuals with

Down syndrome. “Across the world, 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.” Id. at 1. As abortion decimates

the Down syndrome community, resources and

support for existing individuals with Down syndrome

will inevitably dwindle away. See Mo. Rev. Stat.

§ 188.038.6 (finding that Down syndrome abortions

“send a message of dwindling support” for people with

Down syndrome).

“[S]ome countries are now

celebrating the ‘eradication’ of Down syndrome

through

abortion,”

and

this

eradication

“disincentivizes research that might help [people with

Down syndrome] in the future.” PPINK, 888 F.3d at

315 (Manion, J., concurring in the judgment).

Seventh, Arkansas’s law protects against the

devaluation of all human life inherent in any decision

to target a person for elimination based on an

immutable characteristic. Targeting the disabled for

elimination “further coarsen[s] society to the

humanity of not only newborns, but all vulnerable and

innocent human life, making it increasingly difficult

to protect such life.” Gonzales, 550 U.S. at 157

(quoting Congressional Findings ¶ (14)(N)).

Arkansas’s law “expresses respect for the dignity of

human life.” Id. The epidemic of Down syndrome

abortions “perpetuates the odious view that some lives

are worth more than others.” PPINK, 888 F.3d at 315

(Manion, J., concurring in the judgment). Arkansas

counteracts the eugenic message that some people

“have too little value to exist.” Frank Stephens’

Testimony, at 1.

Eighth, Arkansas’s law fosters the diversity of

society and protects society from the incalculable loss

that would occur if people with Down syndrome were

eliminated. As the stories of Down syndrome heroes

like Chris Nikic, Amy Bockerstette, and countless

others attest, people with Down syndrome provide an

irreplaceable beauty, joy, and inspiration to their

communities and our society. They inspire us and

make us better people. “Human beings ‘of difference’

. . . have much to share with all of us about what it

means to be human.” Marsha Saxton, Disability

Rights and Selective Abortion, in ABORTION WARS: A

HALF CENTURY OF STRUGGLE: 1950 TO 2000 (1998).

This is especially true of persons with Down

syndrome, as the experience of one St. Louis, Missouri

suburb illustrates. See Lauren Knight, On Her Way:

Grace’s Bus Stop, ST. LOUIS MAGAZINE (March 21,

2014). Our society would be incalculably diminished

if persons with Down syndrome were eliminated—and

we now stand on the brink of that genocidal outcome.

B. Arkansas’s law is narrowly tailored.

Arkansas’s law advances these many compelling

interests in the narrowest possible fashion. The law

prohibits abortions only if the discriminatory purpose

is the sole reason for the abortion: “A physician shall

not intentionally perform or attempt to perform an

abortion with the knowledge that a pregnant woman

is seeking an abortion solely on the basis of” a test

result, prenatal diagnosis, or other reason indicating

the child has Down syndrome. Ark. Code Ann. § 2016-2103(a). The law also requires the abortion

provider to have actual knowledge of that

discriminatory purpose, after reasonable inquiry. Id.

§ 20-16-2103(a), (b).

Thus, “it is hard to imagine legislation more

narrowly tailored to promote this interest than”

Arkansas’s law. PPINK, 888 F.3d at 316 (Manion, J.,

concurring). Arkansas “only prohibit[s] abortions

performed solely because of the … disability of the

unborn child. The doctor also must know that the

woman has sought the abortion solely for that

purpose.” Id. (emphasis in original). “These are

provisions that apply only to very specific situations

and carefully avoid targeting the purported general

right to pre-viability abortion.” Id. “They will not

affect the vast majority of women who choose to have

an abortion without considering the characteristics of

the child. Indeed, they will not even affect women who

consider the protected characteristics along with

other considerations.” Id. “If it is at all possible to

narrowly tailor abortion regulations, [Arkansas] has

done so.” Id.

Because it is narrowly tailored to advance many

compelling interests, Arkansas’s law satisfies strict

scrutiny. A fortiori, it satisfies any less stringent form

of scrutiny, including Casey’s undue-burden test and

rational-basis scrutiny—the latter of which is the

standard that actually applies here. See Pet. 18–22;