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

NO. 20-1434

IN THE

Supreme Court of the United States

LESLIE RUTLEDGE, in her official capacity as Attorney

General of the State of Arkansas, et al.,

Petitioners,

v.

LITTLE ROCK FAMILY PLANNING SERVICES, et al.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF OF THE JEROME LEJEUNE

FOUNDATION AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

KRISTEN K. WAGGONER

JOHN J. BURSCH

Counsel of Record

DAVID A. CORTMAN

CODY S. BARNETT

ALLIANCE DEFENDING FREEDOM

440 First Street, NW

Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@ADFlegal.org

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... ii

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF THE ARGUMENT ........................... 2

ARGUMENT .............................................................. 5

I.

The lower courts’ application of this Court’s

abortion jurisprudence is unmoored from

this Nation’s history and traditions. ................... 5

A. History has never recognized abortion

as an absolute right. ...................................... 5

B. States historically have asserted an

interest in protecting the lives of the

unborn. ......................................................... 12

II. The lower courts have misapplied this

Court’s abortion jurisprudence. ........................ 14

A. This Court has never treated the

abortion right, even before viability, as

absolute........................................................ 14

B. States have significant interests in

preventing discriminatory abortions. ......... 19

CONCLUSION ......................................................... 24

ii

TABLE OF AUTHORITIES

Cases

Box v. Planned Parenthood of Indiana &

Kentucky,

139 S. Ct. 1780 (2019) ................................... passim

Commonwealth v. Parker,

50 Mass. 263 (Mass. 1845)................................... 10

Dougherty v. People,

1 Colo. 514 (Colo. 1872) ....................................... 13

Evans v. People,

49 N.Y. 86 (N.Y. 1872) ......................................... 10

Garza v. Idaho,

139 S. Ct. 738 (2019) ............................................ 15

Gleitman v. Cosgrove,

227 A.2d 689 (N.J. 1967) ..................................... 13

Gonzales v. Carhart,

550 U.S. 124 (2007) ....................................... passim

Illinois v. Lidster,

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

In re Plavix Marketing, Sales Practices & Products

Liability Litigation (No. II),

974 F.3d 228 (3d Cir. 2020) ................................. 17

June Medical Services LLC v. Russo,

140 S. Ct. 2103 (2020) ................................ 3, 12, 19

iii

Kovacs v. Cooper,

336 U.S. 77 (1949) ................................................ 16

Lucas v. South Carolina Coastal Council,

505 U.S. 1003 (1992) .............................................. 7

Mills v. Commonwealth,

13 Pa. (1 Harris) 631 (1850) ................................ 10

Mitchell v. Commonwealth,

78 Ky. 204 (Ky. 1879) .......................................... 10

MKB Management Corp. v. Stenehjem,

795 F.3d 768 (8th Cir. 2015) ...................... 4, 13, 14

Pearson v. Callahan,

555 U.S. 223 (2009) ................................................ 3

Planned Parenthood of Indiana & Kentucky v.

Commissioner of the Indiana Department of

Health,

917 F.3d 532 (7th Cir. 2018) .......................... 15, 17

Planned Parenthood of Indiana & Kentucky v.

Commissioner of the Indiana State Department

of Health,

888 F.3d 300 (7th Cir. 2018) ...............16, 17, 21, 22

Planned Parenthood of Southeastern Pennsylvania

v. Casey,

505 U.S. 833 (1992) ....................................... passim

Preterm-Cleveland v. Himes,

294 F. Supp. 3d 746 (S.D. Ohio 2018) ................. 16

iv

Preterm-Cleveland v. Himes,

940 F.3d 318 (6th Cir. 2019) ............................ 2, 20

Preterm-Cleveland v. McCloud,

994 F.3d 512 (6th Cir. 2021) ......................... passim

Roe v. Wade,

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

Silvester v. Becerra,

138 S. Ct. 945 (2018) ............................................ 16

State v. Cooper,

22 N.J.L. 52 (N.J. 1849) ................................... 9, 13

State v. Moore,

25 Iowa 128 (1868) ............................................... 13

Washington v. Glucksberg,

521 U.S. 702 (1997) ...................................... 3, 5, 19

Webster v. Reproductive Health Services,

492 U.S. 490 (1989) .............................................. 23

Statutes

42 U.S.C. 12101(a) ................................................... 21

Ark. Code Ann. § 20-16-2103(a)................................. 3

v

Other Authorities

1 Fleta, ch. 33 (ca. 1290), reprinted in 53 Selden

Society (H.G. Richardson & G.O. Sayles eds.

1953) ....................................................................... 8

2 Francis Wharton, A TREATISE ON THE CRIMINAL

LAW OF THE UNITED STATES § 1220 (5th rev. ed.

1868) ................................................................. 8, 10

2 Henry de Bracton, THE LAWS AND CUSTOMS OF

ENGLAND (George Woodbine ed., Samuel

Thorne trans. 1977 & 1982) .................................. 8

2 James Wilson, THE WORKS OF JAMES WILSON

(R.G. McCloskey ed., 1968) .................................... 7

Amy Harmon, Genetic Testing + Abortion = ???,

N.Y. TIMES (May 13, 2017),

https://perma.cc/77XB-9SKA ............................... 22

Amy Julia Becker, Better Prenatal Testing Does

Not Mean More Abortion, THE ATLANTIC (Feb.

21, 2013), https://perma.cc/62Q3-F9CB .... 2, 21, 22

Cyril C. Means Jr., The Phoenix of Abortional

Freedom: Is a Penumbral Right or Ninth

Amendment Right About to Rise from the

Nineteenth-Century Legislative Ashes of a

Fourteenth-Century Common-Law Liberty?, 17

N.Y.L. FORUM 335 (1971) ....................................... 6

David A. Savitz, How Far Can Prenatal Screening

Go in Preventing Birth Defects, 152 J. OF

PEDIATRICS 3 (2008) ............................................. 20

vi

Down Syndrome: Update on the State of the

Science and Potential for Discoveries Across

Other Major Diseases: Hearing Before the

Subcomm. on Labor, Health & Human Servs.,

Educ., & Related Agencies of the H. Comm. on

Appropriations, 115th Cong. (2017) (statement

of Frank Stephens) ...................................... 2, 3, 22

Dr. Jerome Lejeune, 21 Thoughts, JEROME

LEJEUNE FOUNDATION., https://perma.cc/5M7QLGEM ................................................................... 20

Helen A. Anderson, From the Thief in the Night to

the Guest Who Stayed Too Long: The Evolution

of Burglary in the Shadow of the Common Law,

45 IND. L. REV. 629 (2012) ................................... 11

Horatio Robinson Storer & Franklin Fiske Heard,

CRIMINAL ABORTION: ITS NATURE, ITS EVIDENCE,

AND ITS LAW (1868) .............................................. 11

James S. Witherspoon, Reexamining Roe:

Nineteenth-Century Abortion Statutes and the

Fourteenth Amendment, 17 ST. MARY’S L.J. 29

(1985) .................................................................. 8, 9

John Keown, Back to the Future of Abortion Law:

Roe’s Rejection of America’s History and

Traditions, 22 ISSUES L. & MED. 3 (2006) ............. 7

Joseph W. Dellapenna, DISPELLING THE MYTHS OF

ABORTION HISTORY (2006)........................ 7, 8, 9, 12

Justin Buckley Dyer, SLAVERY, ABORTION, AND

THE POLITICS OF CONSTITUTIONAL MEANING

(2013) .....................................................7, 11, 12, 13

vii

Maj Hulten, Obituary: Professor Jerome Lejeune,

INDEPENDENT (Apr. 11, 1994),

https://perma.cc/RD2H-X499 ................................. 1

Robert M. Byrn, An American Tragedy: The

Supreme Court on Abortion, 41 FORDHAM L.

REV. 807 (1973) ...................................................... 9

Sarah Zhang, The Last Children of Down

Syndrome, THE ATLANTIC (Nov. 18, 2020),

https://perma.cc/2BTH-9QU3 ................................ 2

Susan Yoshihara, Another UN Committee Says

Abortion May be a Right, but Not on Basis of

Disability, Center for Family & Human Rights

(Oct. 26, 2017), https://perma.cc/453J-RQXV ....... 3

THE DECLARATION OF INDEPENDENCE (U.S. 1776). . 21

1

INTEREST OF AMICUS CURIAE 1

The Jerome Lejeune Foundation USA is a

nonprofit organization whose mission is to provide

care and advocacy for those with Down syndrome. The

Lejeune Foundation furthers the work of its

namesake, the late Dr. Jérôme Lejeune, who

discovered the chromosomal cause of Down syndrome

and devoted his life to seeking treatments to benefit

those with that condition.

Dr. Lejeune was a strong advocate for those with

Down syndrome and emphasized the importance of

protecting them from abortion. He was horrified that

his advances in the field of genetics were perverted by

some to eliminate—rather than treat—those with

genetic anomalies.2 The Lejeune Foundation is deeply

committed to ensuring that States can and do protect

those with Down syndrome from being targeted for

extinction while in utero.

1 No counsel for a party authored this brief in whole or in part,

and no person other than amicus and its counsel made any

monetary contribution intended to fund the preparation or

submission of this brief. Counsel were notified of this brief, and

all parties consented to its filing.

2 Maj Hulten, Obituary: Professor Jerome Lejeune, INDEPENDENT

(Apr. 11, 1994), https://perma.cc/RD2H-X499 (Lejeune “crusaded

against the prenatal Down’s screening programmes” that

allowed “identification of foetal Down’s syndrome with a view to

offering termination of an affected foetus; for Lejeune this was a

most unwelcome and contradictory outcome of his early and

pioneering research”).

2

SUMMARY OF THE ARGUMENT

“I am a man with Down syndrome and my life is

worth living,” Frank Stephens recently testified

before Congress. Down Syndrome: Update on the

State of the Science and Potential for Discoveries

Across Other Major Diseases: Hearing Before the Subcomm. on Labor, Health & Human Servs., Educ., &

Related Agencies of the H. Comm. on Appropriations,

115th Cong. (2017) (“Stephens Statement”). He felt

compelled to do so because, tragically, “between 70

and 85 percent of women in the United States confronted with a prenatal diagnosis of Down syndrome

choose abortion.” Amy Julia Becker, Better Prenatal

Testing Does Not Mean More Abortion, THE ATLANTIC

(Feb. 21, 2013), https://perma.cc/62Q3-F9CB.3

And “when the decisions so overwhelmingly swing

one way—to abort—it does seem to reflect . . . an

entire society’s judgment about the lives of people

with Down syndrome.” Sarah Zhang, The Last

Children of Down Syndrome, THE ATLANTIC (Nov. 18,

2020), https://perma.cc/2BTH-9QU3. That judgment,

according to Mr. Stephens, was that “people like [him]

should not exist.” Stephens Statement.

3 That number is even higher in other countries. In Denmark,

between 95% and 98% of mothers who receive a prenatal

diagnosis of Down syndrome opt to abort the child. Sarah Zhang,

The Last Children of Down Syndrome, THE ATLANTIC (Nov. 18,

2020), https://perma.cc/2BTH-9QU3; Box v. Planned Parenthood

of Ind. & Ky., 139 S. Ct. 1780, 1791 (2019) (Thomas, J.,

concurring). With 96%, France has a similar statistic. PretermCleveland v. Himes, 940 F.3d 318, 326 n.1 (6th Cir. 2019)

(Batchelder, J., dissenting), reh’g en banc sub nom. PretermCleveland v. McCloud, 994 F.3d 512 (6th Cir. 2021). Iceland has

nearly a 100% rate. Ibid.

3

To affirm the inherent dignity and worth of those

with Down syndrome, the people of Arkansas enacted

an anti-eugenics statute that prohibits a doctor from

performing an abortion “with the knowledge that a

pregnant woman is seeking an abortion solely on the

basis of” a Down syndrome diagnosis. Ark. Code Ann.

§ 20-16-2103(a). But the district court preliminary

enjoined this statute, holding that the Constitution

guarantees the right to abort an unborn child with

Down syndrome before viability. Following what it

believed to be this Court’s precedents, the Eighth

Circuit affirmed.

States have an interest in “protecting disabled

and terminally ill people from prejudice, negative and

inaccurate stereotypes, and ‘societal indifference.’”

Washington v. Glucksberg, 521 U.S. 702, 732 (1997).

Yet the lower courts’ erroneous—and corrosive—

reading of this Court’s abortion jurisprudence prevent

the States from vindicating that interest. Such a

reading allows selective abortions to “perpetuate[ ]

notions of stereotyping disability as incompatible

with a good life.” Susan Yoshihara, Another UN Committee Says Abortion May be a Right, but Not on Basis

of Disability, Center for Family & Human Rights

(Oct. 26, 2017), https://perma.cc/453J-RQXV. It leaves

people like Mr. Stephens to wonder, “Is there really

no place for [me] in this society?” Stephens Statement.

This Court should correct course. The state of

abortion jurisprudence is one of “utter entropy.” June

Med. Servs. LLC v. Russo, 140 S. Ct. 2103, 2152

(2020) (Thomas, J., dissenting). “Members of the

Court” have continually questioned it, and it has

“defied consistent application by the lower courts.”

Pearson v. Callahan, 555 U.S. 223, 235 (2009).

4

For instance, some lower courts treat abortion

before viability as an absolute right and diminish or

ignore the State’s substantial interests in protecting

unborn life. They also downplay other valid interests

that the States have in regulating abortion, such as

protecting those most vulnerable—like Mr.

Stephens—from shame and stigma. Such decisions

flaunt the Constitution and history. Whatever the

contours of the abortion right, history has never

recognized it as absolute, even before viability.

Preterm-Cleveland v. McCloud, 994 F.3d 512, 520 (6th

Cir. 2021) (en banc). And even after Roe, the States

have a substantial interest in protecting unborn life.

Aside from ignoring the historical evidence, the

lower courts have misread the legal framework set

out in Casey and its progeny. No decision from this

Court requires treating the purported abortion right

as absolute, even before viability. Ibid. To the

contrary, the Court has evaluated pro-life laws that

effectively prohibit certain previability abortions

under the undue-burden standard rather than

striking them down as per se unconstitutional. Not

only that, but when evaluating these laws, this Court

has expressed “increasing recognition of states’

profound interest in protecting unborn children.”

MKB Mgmt. Corp. v. Stenehjem, 795 F.3d 768, 771

(8th Cir. 2015).

At a minimum, this Court should clarify that

abortion, like any other constitutional right, is not

absolute. It should also clarify that the States have an

interest in protecting mothers and unborn life.

Finally, the Court should take this opportunity to

situate abortion within its proper historical

constraints.

5

ARGUMENT

I.

The lower courts’ application of this Court’s

abortion jurisprudence is unmoored from

this Nation’s history and traditions.

The Due Process Clause “provides heightened

protection against government interference with

certain fundamental rights and liberty interests.”

Glucksberg, 521 U.S. at 720. In Roe v. Wade, this

Court determined that the right to abort an unborn

child was one such right. 410 U.S. 113 (1973). But this

Court has never precisely clarified the scope of that

right. As a result, the current state of abortion law is

“confusing and uncertain.” Planned Parenthood of Se.

Pa. v. Casey, 505 U.S. 833, 945 (1992) (Rehnquist,

C.J., concurring and dissenting in part).

To resolve the current tension, this Court should

look to “history and traditions.” See Glucksberg, 521

U.S. at 727. Only there can this Court determine the

abortion right’s proper scope.

A. History has never recognized abortion

as an absolute right.

The abortion right’s historical imprimatur has a

precarious foundation. In Roe, this Court stated that

its decision came after it had “inquired into, and . . .

place[d] some emphasis upon, medical and medicallegal history.” 410 U.S. at 117. Nearly half of the

opinion, in fact, paid lip service to history. The Court

particularly relied on Cyril Means, referencing his

works six times. Id. at 132 n.21, 133 n.22, 135 n.26,

139 n.33, 148 n.42, 151 n.47.

6

Means, who served as legal counsel to the

National Association for the Repeal of Abortion Laws,

understood that “only if in 1791 elective abortion was

a common-law liberty, can it be a . . . right today.”

Cyril C. Means Jr., The Phoenix of Abortional

Freedom: Is a Penumbral Right or Ninth-Amendment

Right About to Rise from the Nineteenth-Century

Legislative Ashes of a Fourteenth-Century CommonLaw Liberty?, 17 N.Y.L. FORUM 335, 336 (1971). So he

wrote a history that purported to “reveal the story,

untold now for nearly a century, of the long period

which English and American women enjoyed a

common-law liberty to terminate at will an unwanted

pregnancy.” Ibid. To underscore this point, Means’s

historical account concluded that the “demonstrable

legislative purpose behind [pro-life statutes] was the

protection of pregnant women from the danger to

their lives posed by surgical or optional abortion.”

Ibid. If laws were enacted to protect women, Means

concluded, then these restrictions did not displace the

abortion right but supplemented it, ensuring that

abortion could be exercised safely for the mother

(though obviously not the child).

Following Means, this Court concluded that “a

woman enjoyed a substantially broader right to terminate a pregnancy” at the Founding than she did “in

most States” in 1972. Roe, 410 U.S. at 140–41. It was

“doubtful,” the Court wrote, “that abortion was ever

firmly established as a common-law crime.” Id. at 136.

And when the States criminalized abortion, they did

so to protect the health of mothers, not unborn life.

Relying on this history, the Court held that States

could not curtail the ability to end a pregnancy based

on an interest in protecting unborn life. Id. at 162.

7

But that history was wrong. Means presented a

“distorted doctrinal history of abortion precedents

and statutes [that] ignored the larger social and

technological context in which those decisions were

grounded.” Br. for the Am. Acad. of Med. Ethics as

Amicus Curiae at 4, Planned Parenthood of Se. Pa. v.

Casey, 505 U.S. 833 (1992) (Nos. 91–744, 91–902). He

“wrote as an advocate to make a case for legal change,

not as a historian investigating the past.” Joseph W.

Dellapenna, DISPELLING THE MYTHS OF ABORTION

HISTORY 1004 (2006). As a result, the Court in Roe

treated “history as a grab bag of principles, to be

adopted where they support[ed] the Court’s theory,

and ignored where they do not.” See Lucas v. S.C.

Coastal Council, 505 U.S. 1003, 1060 (1992)

(Blackmun, J., dissenting).

Contrary to Means’s “findings,” the common law

never recognized abortion as a protected liberty

interest. Justin Buckley Dyer, SLAVERY, ABORTION,

AND THE POLITICS OF CONSTITUTIONAL MEANING 108

(2013). The common law has instead always protected

life, “[w]ith consistency, beautiful and undeviating . . .

from its commencement to its close.” 2 James Wilson,

THE WORKS OF JAMES WILSON 596–97 (R.G.

McCloskey ed., 1968).

In fact, there is an “unbroken legal tradition,

extending over at least eight centuries of AngloAmerican social life, condemning abortion[.]”

Dellapenna, DISPELLING THE MYTHS OF ABORTION

HISTORY at 1055; John Keown, Back to the Future of

Abortion Law: Roe’s Rejection of America’s History

and Traditions, 22 ISSUES L. & MED. 3, 5 (2006) (“As

early as the mid-thirteenth century the common law

punished abortion after fetal formation as

8

homicide.”); James S. Witherspoon, Reexamining Roe:

Nineteenth-Century Abortion Statutes and the

Fourteenth Amendment, 17 ST. MARY’S L.J. 29, 31

(1985) (“In the earliest periods of the common law,

abortion causing the death of a living fetus was

considered homicide.”).

As early as the 13th century, the English jurist

Henry de Bracton wrote that “if one strikes a

pregnant woman or gives her a potion in order to

procure an abortion, if the foetus is already formed or

animated,” “he commits homicide.” 2 Henry de

Bracton, THE LAWS AND CUSTOMS OF ENGLAND 341

(George Woodbine ed., Samuel Thorne trans. 1977 &

1982). Similarly, the Fleta treatise reported that a

man committed homicide if he “pressed upon a

pregnant woman or has given her poison or has struck

her in order to procure an abortion . . . if the foetus is

already formed and animated.” 1 Fleta, ch. 33 (ca.

1290), reprinted in 53 Selden Soc’y 60–61 (H.G.

Richardson & G.O. Sayles eds. 1953).

Unsurprisingly, cases “treated abortion as a crime

. . . because it involved the killing of an unborn child.”

Dellapenna, DISPELLING THE MYTHS OF ABORTION

HISTORY at 135–52 (collecting early cases). That

remained true when the newly independent States

simplified and systematized their legal codes. The

States codified many of the common law’s criminal

prohibitions—including those against abortion. By

1860, jurist Francis Wharton said that there was “no

doubt that at common law the destruction of an infant

unborn is a high misdemeanor, and at an early period

it seems to have been deemed murder.” 2 Francis

Wharton, A TREATISE ON THE CRIMINAL LAW OF THE

UNITED STATES § 1220 (5th rev. ed. 1868).

9

Some of these early statutes made abortion “an

indictable offence” only if “the mother be quick with

child.” E.g., State v. Cooper, 22 N.J.L. 52, 53 (N.J.

1849). Based on that language, the Court in Roe

thought that “the law continued for some time to treat

less punitively an abortion procured in early

pregnancy” (i.e., before “quickening”). 410 U.S. at 141.

If the law punished abortion only after quickening,

then the Court posited a broad right to terminate a

pregnancy before quickening.

But it is quite a leap to say that if conduct is

unindictable, it has constitutional protection. The

“limiting of criminality to post-quickening abortions

could very well have been a response to the evidentiary problems of proving both the pregnancy and that

the fetus had been alive before the abortion before

quickening.” Dellapenna, DISPELLING THE MYTHS OF

ABORTION HISTORY at 274; Witherspoon, Reexamining

Roe, 17 ST. MARY’S L.J. at 31 (abortion convictions

were hard to obtain because it was “difficult to prove

that (1) the woman on whom the abortion was

attempted was actually pregnant; (2) the fetus was

alive at the time of the attempt; and (3) the attempt

caused the death of the fetus.”). Given these evidentiary issues, quickening became “a flexible standard

of proof—not a substantive judgment on the value of

unborn human life.” Robert M. Byrn, An American

Tragedy: The Supreme Court on Abortion, 41

FORDHAM L. REV. 807, 825 (1973).

Contemporaneous cases made this clear. The New

York Court of Appeals held that, although “life exists

from the first moment of conception” and “certain civil

rights attach to the child from the first,” “the law has

fixed upon this period of gestation as the time when

10

the child is endowed with life.” Evans v. People, 49

N.Y. 86, 89–90 (N.Y. 1872). That “fixed” period was

not because the law recognized abortion as a right; it

was because “the foetal movements are the first

clearly marked and well defined evidences of life.”

Ibid. (emphasis added).

Even then, not every jurisdiction read the

common law to criminalize abortion only after

quickening. The Pennsylvania Supreme Court held

that it was a “flagrant crime, at common law, to

attempt to procure the miscarriage or abortion of the

woman . . . at all periods after conception.” Mills v.

Commonwealth, 13 Pa. (1 Harris) 631, 633 (1850).

Similarly, Wharton wrote:

It has been said that it is not an indictable

offence to administer a drug to a woman, and

thereby to procure an abortion, unless the

mother is quick with child, though such a

distinction, it is submitted, is neither in

accordance with the result of medical

experience, nor with the principles of the

common law. [2 Francis Wharton, A TREATISE

ON THE CRIMINAL LAW OF THE UNITED STATES

§ 1220 (5th rev. ed. 1868).]

Even those jurisdictions that thought the common

law punished abortions only after quickening felt that

“the law should punish abortions . . . willfully

produced, at any time during the period of gestation.”

Mitchell v. Commonwealth, 78 Ky. 204, 209 (Ky. 1879)

(emphasis added). They described abortions as “offensive to good morals and injurious to society”—hardly

language used to describe a right. Commonwealth v.

Parker, 50 Mass. 263, 268 (Mass. 1845).

11

In no other context would one make the logical

leap that conduct unindictable must be conduct

constitutionally protected. Consider the common-law

definition of burglary: the breaking and entering of a

dwelling house at night with intent to commit a felony

inside. That the common law defined burglary to

prohibit conduct “at night” did not mean that people

had a right to burgle during daylight. The law drew

the “night” line for a particular purpose: “night time

invasions of the home were seen as particularly

threatening.” Helen A. Anderson, From the Thief in

the Night to the Guest Who Stayed Too Long: The

Evolution of Burglary in the Shadow of the Common

Law, 45 IND. L. REV. 629, 643 (2012). So too with

abortion. That the law drew a line at quickening did

not indicate a right to abort an unborn child before

quickening. The law drew a line to facilitate

prosecution of conduct that society found

unacceptable.

And when that line no longer made sense, the law

abandoned it. After the American Medical Association

reported that a “foetus in utero is alive from the very

moment of conception,” Dyer, SLAVERY, ABORTION,

AND THE POLITICS OF CONSTITUTIONAL MEANING at

111, physician Horatio Storer wrote that “if the foetus

be already, and from the very outset, a human being

alive . . . the offence becomes, in every stage of

pregnancy, MURDER,” Horatio Robinson Storer &

Franklin Fiske Heard, CRIMINAL ABORTION: ITS

NATURE, ITS EVIDENCE, AND ITS LAW 9–10 (1868).

In accord with this new understanding, many

States abandoned the quickening distinction. “By

1868, when the Fourteenth Amendment was ratified,

thirty of the thirty-seven states had abortion statutes

12

on the books. Just three of these states prohibited

abortion only after quickening. Twenty states

punished all abortion equally regardless the stage of

pregnancy.” Dellapenna, DISPELLING THE MYTHS OF

ABORTION HISTORY at 315–16; accord June Med.

Servs., 140 S. Ct. at 2151 & n.7 (Thomas, J., dissenting) (collecting statutes); Casey, 505 U.S. at 952

(Rehnquist, C.J., concurring and dissenting in part).

In fact, just four months after Ohio ratified the Fourteenth Amendment, the State prohibited abortion

from any point of embryonic or fetal development.

Dyer, SLAVERY, ABORTION, AND THE POLITICS OF

CONSTITUTIONAL MEANING at 105–06. “It would no

doubt shock the public at that time to learn that one

of the new constitutional Amendments contained

hidden within the interstices of its text a right to

abortion”—the very conduct that many States were

prohibiting. June Med. Servs., 140 S. Ct. at 2151

(Thomas, J., dissenting).

B. States historically have asserted an

interest in protecting the lives of the

unborn.

Means not only distorted history, he diminished

the States’ interest in protecting unborn life. Means

concluded that pro-life statutes protected only

women. But history highlights the States’ “legitimate

and substantial interest in preserving and promoting

fetal life.” Gonzales v. Carhart, 550 U.S. 124, 145

(2007). From the beginning, common law courts

“spoke unequivocally in terms of the killing of a child,

and not just in terms of a crime against the mother.”

Dellapenna, DISPELLING THE MYTHS OF ABORTION

HISTORY at 135.

13

What was true of the common law was equally

true of the States. When States enacted abortion

prohibitions in the mid-19th century, many legislatures acted “to protect both [mother and unborn child]

from injury.” Dougherty v. People, 1 Colo. 514, 523

(Colo. 1872) (emphasis added); accord State v. Moore,

25 Iowa 128, 136 (1868) (“abortion is an act highly

dangerous to the mother, and generally fatal, and

frequently designed to be fatal, to the child.”).

As early as 1828, “New York enacted legislation

that . . . barr[ed] destruction of an unquickend fetus

as well as a quick fetus.” Roe, 410 U.S. at 138. In New

Jersey, after its Supreme Court held that abortion

was a crime only after quickening, Cooper, 22 N.J.L.

at 53, the legislature enacted a statute that punished

abortions before quickening with the “equally obvious

purpose” to protect unborn life. Gleitman v. Cosgrove,

227 A.2d 689, 696 (N.J. 1967) (Francis, J., concurring). Similarly, after courts in Massachusetts and

Iowa failed to convict an abortionist because of the

quickening distinction, both States’ legislatures

abandoned that line and criminalized every

abortion—all to strengthen legal protections for the

unborn. Dyer, SLAVERY, ABORTION, AND THE POLITICS

OF CONSTITUTIONAL MEANING at 115–16.

Although Roe diminished this historical interest,

“[t]he evolution in [this Court’s] jurisprudence reflects

its increasing recognition of states’ profound interest

in protecting unborn children.” MKB Mgmt. Corp.,

795 F.3d at 771. As recently as 2007, this Court

recognized that States have a “legitimate interest[ ]”

in “promot[ing] respect for life, including life of the

unborn.” Gonzales, 550 U.S. at 158. This Court should

reaffirm that historical interest.

14

II. The lower courts have misapplied this

Court’s abortion jurisprudence.

“[G]ood reasons exist for the Court to reevaluate

its” abortion jurisprudence. MKB Mgmt. Corp., 795

F.3d at 773. But even under that jurisprudence,

Arkansas’s statute is constitutional. The lower courts

have assigned the purported abortion right an

unassailability that this Court has disavowed. In

doing so, the courts have ignored the States’

compelling interests in regulating the taking of life

before viability.

A. This Court has never treated the

abortion right, even before viability, as

absolute.

From the outset, Roe clarified that an abortion

could not be obtained any “way,” at any “time,” or for

any “reason.” 410 U.S. at 153. For 40 years, this Court

has allowed previability regulations on the “way” to

obtain an abortion. In Gonzales, for instance, this

Court held that “the State may use its regulatory

power to bar certain procedures and substitute

others, all in furtherance of its legitimate interests . . .

to promote respect for life, including life of the

unborn.” 550 U.S. at 158. That interest extended to

banning certain procedures that would make

previability abortions harder to obtain. Id. at 156

(“The abortions affected by the Act’s regulation take

place both previability and postviability.”).

This Court has also upheld previability laws

regarding the “time” for obtaining an abortion. In

Casey, Pennsylvania enacted a statute that required

a 24-hour waiting period before obtaining an abortion.

15

505 U.S. at 885. That waiting period could cause

further delay, as it might require “two visits to the

doctor.” Id. at 886. Even though that delay might

prevent some abortions before viability, the Court did

not consider it an undue burden. Ibid.

Despite upholding previability, pro-life laws

regarding the “way” and “time” an abortion can be

obtained, the Court has not answered how a State can

regulate the “reasons” behind a previability abortion,

including whether a State can stop an abortion for

discriminatory reasons. As Judge Easterbrook noted,

“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.’” Planned

Parenthood of Ind. & Ky. v. Comm’r of the Ind. Dep’t

of Health, 917 F.3d 532, 536 (7th Cir. 2018)

(Easterbrook, J., dissenting from the denial of

rehearing en banc). Given that profound difference—

and where “little available evidence suggests that”

the scope of the current abortion right “is correct as

an original matter”—lower courts “should tread

carefully before extending [this Court’s] precedents.”

See Garza v. Idaho, 139 S. Ct. 738, 756 (2019)

(Thomas, J., dissenting).

Yet some lower courts have done the opposite,

reflexively applying Casey’s statement that a “State

may not prohibit any woman from making the

ultimate decision to terminate her pregnancy before

viability,” 505 U.S. at 879, as creating an absolute

previability abortion right. Here, for instance, the

district court said that “prohibitions on abortions previability . . . are per se unconstitutional under binding

Supreme Court precedent.” Pet.App.118a. And on

appeal, the Eighth Circuit described this “pre-

16

viability rule” as “categorical.” Pet.App.5a. These

courts are hardly alone. E.g., Preterm-Cleveland v.

Himes, 294 F. Supp. 3d 746, 754 (S.D. Ohio 2018)

(recognizing an “absolute right to a pre-viability

abortion.” (emphasis added)); Planned Parenthood of

Ind. & Ky. v. Comm’r of the Ind. State Dep’t of Health,

888 F.3d 300, 311 (7th Cir. 2018) (Manion, J.,

concurring and dissenting in part) (“Casey has plainly

established an absolute right to have an abortion

before viability.”).

But they are wrong. See Preterm-Cleveland, 994

F.3d at 520 (en banc) (“The right to an abortion before

viability is not absolute.”). No other constitutional

right—not even those expressly enumerated in the

Constitution, such as the freedom of speech, freedom

of religion, or freedom of the press—enjoys such

protection. Kovacs v. Cooper, 336 U.S. 77, 85 (1949)

(“[E]ven the fundamental rights of the Bill of Rights

are not absolute.”); Planned Parenthood of Ind. & Ky.,

888 F.3d at 312 (Manion, J., concurring and dissenting in part) (“[A]bortion is now a more untouchable

right than even the freedom of speech.”). Indeed,

many enumerated constitutional rights—such as the

right to bear arms—enjoy far less. See Silvester v.

Becerra, 138 S. Ct. 945, 952 (2018) (Thomas, J.,

dissenting from the denial of certiorari) (“The Court

would take these cases because abortion . . . [is one] of

its favored rights. The right to keep and bear arms is

apparently this Court’s constitutional orphan.”).

Courts giving abortion most-favored, constitutionalrights status have stretched the right beyond its

historical mooring and “squeeze[d] all [they] can out

of every last word” in Casey, see In re Plavix

Marketing, Sales Practices & Prods. Liab. Litig. (No.

17

II), 974 F.3d 228, 235 (3d Cir. 2020), making the

abortion right “more ironclad even than the rights

enumerated in the Bill of Rights,” Planned Parenthood of Ind. & Ky., 888 F.3d at 310 (Manion, J.,

concurring and dissenting in part).

Casey did not create a firewall around previability

abortions. Gonzales, 550 U.S. at 146 (“To implement

its holding, Casey rejected . . . the interpretation of

Roe that considered all previability regulations of

abortion unwarranted.”). And the lower courts that

have interpreted it to do so have erred. “Judicial

opinions are not statutes; they resolve only the

situations presented for decision.” Planned Parenthood of Ind. & Ky., 917 F.3d at 536 (Easterbrook, J.,

dissenting from the denial of rehearing en banc).

Casey must be read “in context to circumstances

similar to the circumstances then before the Court

and not referring to quite different circumstances

that the Court was not then considering.” Illinois v.

Lidster, 540 U.S. 419, 424 (2004). And in Casey, this

Court did not address whether someone could obtain

a previability abortion in all circumstances. In

particular, “Casey did not consider the validity of an

anti-eugenics law.” Planned Parenthood of Ind. & Ky.,

917 F.3d at 536 (Easterbrook, J., dissenting from the

denial of rehearing en banc).4

4 In fact, the Casey petitioners did not challenge a Pennsylvania

statute that “prohibit[ed] pre-viability abortions based on the

sex of the fetus.” Br. for the United States as Amicus Curiae at

18 n.13, Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833

(1992) (Nos. 91–744, 91–902). Presumably, those petitioners

figured that, in “a free, egalitarian, and democratic society . . .

no one could seriously claim that the Constitution offers the

remotest protection for such a macabre act.” Ibid.

18

So “[w]hatever else might be said about Casey, it

did not decide whether the Constitution requires

States to allow eugenic abortions.” Box v. Planned

Parenthood of Ind. & Ky., 139 S. Ct. 1780, 1792 (2019)

(Thomas, J., concurring).

The Constitution gives States the latitude to

protect nascent life, even before viability. That is why

this Court has upheld laws that sometimes prevent a

previability abortion. Gonzales, 550 U.S. at 147. This

Court’s abortion jurisprudence has always differentiated between an “outright prohibition” of abortion on

the one hand and a simple “regulation” of abortion on

the other. Casey, 505 U.S. at 944 (Rehnquist, C.J.,

concurring and dissenting in part). And a simple

“regulation” that protects only a subset of unborn

babies does not transform that regulation into a total

ban. That is why, in Gonzales, this Court considered

a statute that affected both pre- and post-viability

abortions and held that States can enact “regulations

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 . . . if they are not a substantial obstacle to the

woman’s exercise of the right to choose.” Gonzales,

550 U.S. at 146 (cleaned up).

Casey itself recognized the difference between an

“outright prohibition” of previability abortions on the

one hand and simple “regulations” of those abortions

on the other. 505 U.S. at 944 (Rehnquist, C.J.,

concurring and dissenting in part). The statutes at

issue there imposed restrictions that, for some, would

have prevented an abortion before viability—

pregnancies that were on the line of viability, those

who had objecting spouses, or those who were minors,

19

unable to obtain parental consent. Yet the Court did

not treat these laws as outright bans, nor did the

Court say that the right to a previability abortion in

these situations was absolute; instead the Court

determined whether the regulations imposed a

substantial obstacle.

More recently, a plurality of this Court concluded

that a Louisiana law would prevent “thousands of

Louisiana” citizens from obtaining a “safe, legal

abortion” before viability. June Med. Servs., 140 S. Ct.

at 2130 (plurality opinion). But this Court did not

treat that law as a ban either. Instead, a majority

subjected it to Casey’s undue-burden analysis. Id. at

2138 (Roberts, C.J., concurring in the judgment); see

also id. at 2182 (Kavanaugh, J., dissenting) (“[F]ive

Members of the Court reject the Whole Woman’s

Health cost-benefit standard.”).

Arkansas’s statute is not an “outright prohibition”

but a simple “regulation.” Preterm-Cleveland, 994

F.3d at 527 (similar Ohio statute was not a “ban”);

accord id. at 550 (Kethledge, J., concurring in part

and concurring in the judgment). The lower courts

erred by treating that statute as a ban rather than

applying the undue-burden framework.

B. States have significant interests in

preventing discriminatory abortions.

Aside from history, States have specific interests

that justify previability, pro-life laws. For one, the

“State has a significant role to play in regulating the

medical profession.” Gonzales, 550 U.S. at 157. That

includes protecting the profession’s “integrity and

ethics.” Glucksberg, 521 U.S. at 731. Arkansas has a

significant interest in preventing doctors from becom-

20

ing “witting accomplices to the deliberate targeting of

Down Syndrome babies,” as such targeting “would do

deep damage to the integrity of the medical

profession.” Himes, 940 F.3d at 326 (Batchelder, J.,

dissenting), reh’g en banc sub nom. PretermCleveland v. McCloud, 994 F.3d 512 (6th Cir. 2021)

(adopting Judge Batchelder’s position); cf. Gonzales,

550 U.S. at 160 (“It was reasonable for Congress to

think that partial birth-abortion . . . undermines the

public’s perception of the appropriate role of a

physician during the delivery process, and perverts a

process during which life is brought into the world.”

(cleaned up)).

That’s especially true when some medical professionals think that “selective pregnancy terminations

and reduced birth prevalence [of Down syndrome is]

a desirable and attainable goal.” Preterm-Cleveland,

994 F.3d at 518 (en banc) (quoting David A. Savitz,

How Far Can Prenatal Screening Go in Preventing

Birth Defects, 152 J. OF PEDIATRICS 3, 3 (2008)). The

medical community should seek to eliminate

ailments, not those who suffer from them. “Medicine

becomes mad science when it attacks the patient

instead of fighting the disease.” Dr. Jerome Lejeune,

21

Thoughts,

JEROME

LEJEUNE

FOUND.,

https://perma.cc/5M7Q-LGEM. Arkansas has a

compelling interest in avoiding such “mad science.”

Arkansas also has a significant interest in

promoting “the principle that the Down Syndrome

population is equal in value and dignity to the rest of

[the State’s] population.” Himes, 940 F.3d at 326

(Batchelder, J., dissenting). Allowing those “who

otherwise want to bear a child to choose abortion

because the child has Down syndrome perpetuates

21

the odious view that some lives are worth more than

others and increases the stigma associated with

having a genetic disorder.” Planned Parenthood of

Ind. & Ky., 888 F.3d at 315 (Manion, J., concurring

and dissenting in part) (cleaned up).

To someone like Mr. Stephens, selective abortions

signal that he and those like him should not exist. The

“grisly reality is that abortion of human beings with

Down syndrome is driven by a sector of society that

doesn’t want disabled people to be part of society.”

Pet.App.97a. Arkansas’s statute promotes a contrary

principle, one cardinal to our society: “that all men are

created equal.” THE DECLARATION OF INDEPENDENCE

para. 2 (U.S. 1776).

Similarly, Arkansas has an interest in preventing

discrimination against those with Down syndrome.

Across many contexts, governments have “been

zealous in vindicating the rights of people even

potentially subjected to” discrimination. Box, 139 S.

Ct. at 1792–93 (Thomas, J., concurring). But “society

has tended to isolate and segregate individuals with

disabilities,” so that discrimination against them

“continue[s] to be a serious and pervasive social

problem.” Cf. 42 U.S.C. 12101(a)(1)–(2). Tragically,

“abortion has proved to be a disturbingly effective tool

for implementing [these] discriminatory preferences[.]” Box, 139 S. Ct. at 1790 (Thomas, J.,

concurring).

“As early as the 1930s, doctors who were arguing

for legalized abortion used the prospect of aborting

fetuses with ‘deformities’ as a rationale for abortion

in the case of medical necessity.” Becker, Better

Prenatal Testing. “With today’s prenatal screening

22

tests and other technologies,” that trend has

worsened, as now “abortion can easily be used to

eliminate children with unwanted characteristics.”

Box, 139 S. Ct. at 1790 (Thomas, J., concurring). Even

abortion advocates generally find themselves “less

comfortable when abortion is used by women who

don’t want to have a particular baby.” Amy Harmon,

Genetic Testing + Abortion = ???, N.Y. TIMES (May 13,

2017), https://perma.cc/77XB-9SKA. Arkansas thus

has a “compelling interest in preventing abortion

from becoming a tool of modern-day eugenics.” Box,

139 S. Ct. at 1783 (Thomas, J., concurring).

Finally, there is a legitimate concern that

widespread abortions of those with Down syndrome

will “disincentiv[e] research that might help [those

with Down syndrome] in the future.” Planned

Parenthood of Ind. & Ky., 888 F.3d at 315 (Manion,

J., concurring and dissenting in part). As Mr.

Stephens testified, “a notion is being sold that maybe

we don’t need to continue to do research concerning

Down syndrome” because “we can just terminate

those pregnancies.” Stephens Statement. Within the

last 30 years, the life expectancy of those with Down

syndrome has doubled. Becker, Better Prenatal

Testing. Changes in schools and other social settings

have allowed those with Down syndrome to

experience greater independence. Arkansas has a

legitimate interest in ensuring that discriminatory

abortions do not discourage further advancements.

***

23

The current state of abortion law is “confusing

and uncertain, indicating that a reexamination of

[these] cases is in order.” Casey, 505 U.S. at 945

(Rehnquist, C.J., concurring and dissenting in part).

“Having created the constitutional right to an

abortion, this Court is dutybound to address its

scope.” Box, 139 S. Ct. at 1793 (Thomas, J.,

concurring). It should do so based on “history and

tradition” and recognize that there is no absolute

right to abortion before viability, and that the States

have a substantial interest in protecting unborn life.

This Court was right when it acknowledged three

decades ago that it could “not see why the State’s

interest in protecting human life should come into

existence only at the point of viability, and that there

should therefore be a rigid line allowing state

regulation after viability but prohibiting it before

viability.” Webster v. Reproductive Health Servs., 492

U.S. 490, 519 (1989). This petition is an ideal vehicle

to turn that acknowledgment into a holding.

Accordingly, this Court should clarify that its current

abortion jurisprudence under Casey does not bestow

an absolute, previability right to abortion. The States

have multiple compelling interests that justify

protecting life at all stages.

24

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

KRISTEN K. WAGGONER

JOHN J. BURSCH

Counsel of Record

DAVID A. CORTMAN

CODY S. BARNETT

ALLIANCE DEFENDING FREEDOM

440 First Street, NW

Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@ADFlegal.org

MAY 2021