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, et al.,

v.

Petitioners,

LITTLE ROCK FAMILY PLANNING SERVICES, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF OF AMICI CURIAE UNITED STATES

SENATORS AND REPRESENTATIVES

SUPPORTING PETITIONERS

THOMAS R. MCCARTHY

Counsel of Record

TIFFANY H. BATES

ANTONIN SCALIA LAW SCHOOL

SUPREME COURT CLINIC

CONSOVOY MCCARTHY PLLC

1600 Wilson Boulevard

Suite 700

Arlington, VA 22209

(703) 243-9423

tom@consovoymccarthy.com

May 13, 2021

Counsel for Amici Curiae

i

TABLE OF CONTENTS

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

STATEMENT OF INTEREST ....................................1

INTRODUCTION & SUMMARY OF THE

ARGUMENT ...............................................................2

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

I. Congress has long protected individuals with

disabilities from discrimination of all kinds ..........3

II. Consistent with that overarching federal

policy, Arkansas’s law aims to prevent

invidious discrimination against unborn

children with disabilities ........................................6

A. There is an unfortunate history of using

abortion to target children based on race,

gender, and disabilities ......................................6

B. Arkansas’s law seeks to prevent abortion

from becoming a tool of modern-day

eugenics by prohibiting discrimination

based on disability ............................................13

CONCLUSION ..........................................................18

APPENDIX – List of Amici Curiae .................... App. 1

ii

TABLE OF AUTHORITIES

Cases

Box v. Planned Parenthood of Indiana &

Kentucky, Inc., 139 S. Ct. 1780 (2019) .......... passim

Jackson Women’s Health Org. v. Dobbs,

945 F.3d 265 (5th Cir. 2019).............................. 7, 13

Planned Parenthood of Ind. & Ky., Inc. v.

Comm’r of Ind. State Dep’t of Health,

888 F.3d 300 (7th Cir. 2018)............................ 12, 13

Planned Parenthood of Ind. and Ky. v.

Comm’r of Ind. State Dep’t of Health,

917 F.3d 532 (7th Cir. 2018).................................. 13

Preterm-Cleveland v. McCloud,

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

Roberts v. U.S. Jaycees,

468 U.S. 609 (1984)..................................................3

Statutes and Legislation

20 U.S.C. §1400(c) .......................................................4

20 U.S.C. §1400(d) .......................................................5

20 U.S.C. §1411(a)(1) ..................................................6

20 U.S.C. §1440(c)(6) ...................................................6

29 U.S.C. §701(a)(3) ....................................................4

iii

29 U.S.C. §701(b)(1) ....................................................4

29 U.S.C. §720(a)(1)(A)-(2)(B) .....................................6

29 U.S.C. §720(b)(1) ....................................................6

42 U.S.C. §12101(b) .....................................................3

42 U.S.C. §18116 .........................................................5

42 U.S.C. §2000d ..................................................... 5, 6

42 U.S.C. §2000ff .........................................................5

42 U.S.C. §3601 ...........................................................5

42 U.S.C. §4151 ...........................................................5

47 U.S.C. §41705 .........................................................5

2019 Ky. Acts ch. 020, § 311.731 ..............................16

Ark. Code Ann. §20-16-2103 (2017) .......................... 14

La. Stat. Ann. §40:1061.1.2 ....................................... 16

Miss. Code Ann. §41-41-401...................................... 16

Miss. Code Ann. §41-41-407...................................... 16

Mo. Ann. Stat. §188.038 ............................................ 16

N.D. Cent. Code §14-02.1-04.1 .................................. 16

Pub. L. No. 102-569, 106 Stat. 4344 (1992) ................4

iv

Tn. Stat. §39-15-214 .................................................. 16

Tn. Stat. §39-15-217 .................................................. 16

2021 Ariz. SB 1457 .................................................... 16

H.R. 532, 117th Cong. (2021) ....................................17

Pa. SB 21 ................................................................... 17

Protecting Individuals with Down Syndrome

Act. S. 75, 117th Cong. (2021) ...............................17

S.D. HB 1110 ............................................................. 17

Utah HB 166.............................................................. 17

Other Authorities

6 Havelock Ellis, Studies in the Psychology of

Sex 602 (1910) ..........................................................8

Abortion Laws Condemned, 90 Sci. News 320

(1966)........................................................................9

David T. Beito & Linda Royster Beito, Black

Maverick: T.R.M. Howard’s Fight for Civil

Rights and Economic Power 215 (2009)..................8

Jane E. Brody, Prenatal Diagnosis Is Reducing

Risk of Birth Defects, N.Y. Times (June 3,

1971), nyti.ms/3tQSQjL ...........................................9

Adam S. Cohen, Harvard’s Eugenics Era, Harv.

Mag. (2016), bit.ly/3f47non......................................7

v

Matthew Diehr, Comment, The State of Affairs

Regarding Counseling for Expectant Parents

of a Child with a Disability: Do ACOG’s New

Practice Guidelines Signify the Arrival of a

Brave New World?, 53 St. Louis U. L.J. 1287,

1288-89 (2009)........................................................11

Decl. of Donna J. Harrison, M.D. .........................3, 12

Cara Dunne & Catherine Warren, Lethal Autonomy: The Malfunction of the Informed

Consent Mechanism within the Context of

Prenatal Diagnosis of Genetic Variants, 14 Issues L. & Med. 165 (1998) ..................................... 10

Nicholas Eberstadt & Evan Abramsky, Has

the ‘Global War Against Baby Girls’ Come to

America?, Inst. for Family Studies (Jan 27,

2020), bit.ly/3vGFaJs.............................................10

Eugenics, Stan. Encyclopedia of Phil. (2014),

stanford.io/3t0LVEc .................................................7

Freedom of Choice Act of 1989: Hearings on

S. 1912 Before the Sen. Comm. on Lab &

Human Resources, 101st Cong. 199 (1990).....11, 12

Francis Galton, Essays in Eugenics 42 (1909) ...........7

Tori Gooder, Comment, Selective Abortion

Bans: The Birth of a New State Compelling

Interest, 87 U. Cin. L. Rev. 545 (2018) .................. 14

Alan Guttmacher, Babies by Choice or by

Chance 198 (1959) ...................................................9

vi

Amy Harmon, Prenatal Test Puts Down Syndrome in Hard Focus, N.Y. Times (May 9,

2007), nyti.ms/3szmU3m .......................................18

Henry Harris, Abortion in Society Russia: Has

the Time Come to Legalize It Everywhere?, 25

Eugenics Rev. 22 (1933) ..........................................8

Anna Higgins, Sex-Selection Abortion: The Real

War on Women, Charlotte Lozier Inst. (Apr.

13, 2016), bit.ly/3ehmABM ....................................10

Daniel J. Kevles, In the Name of Eugenics 11617 (1985)...................................................................8

Lankford Joins Inhofe to Call for Greater Protections for Children with Down Syndrome,

James Lankford U.S. Sen. for Okla. (Jan. 29,

2021), bit.ly/3cb7H2y .......................................17, 18

William McGurn, White Supremacy and Abortion, Wall. St. J. (Sept. 2, 2019),

on.wsj.com/3tL15hn .................................................8

Jaime L. Natoli et al., Prenatal Diagnosis of

Down Syndrome: A Systematic Review of

Termination Rates (1995-2011), 32 Prenatal

Diagnosis 142, 150 (2012)......................................10

Erik Parens & Adrienne Asch, The Disability

Rights Critique of Prenatal Genetic Testing,

29 Hastings Ctr. Rep., Sept.-Oct. 1999

(1999)......................................................................12

vii

Population Control: Dr. Binnie Dunlop’s Address to the Eugenics Society, 25 Eugenics

Rev. 251 (1934) ........................................................9

Press Release, Inhofe Leads Senators to ReIntroduce the Protecting Individuals with

Down Syndrome Act (Jan. 28, 2021)

bit.ly/3dExlOa ..........................................................3

George F. Will, Opinion: The Real Down Syndrome Problem: Accepting Genocide, Wash.

Post (Mar. 14, 2018), wapo.st/3lSpcYY .................11

Mary Ziegler, The Disability Politics of Abortion, 2017 Utah L. Rev 587......................................9

1

STATEMENT OF INTEREST 1

Amici curiae are members of the U.S. Senate and

House of Representatives (listed in the Appendix)

who have a longstanding interest in protecting

individuals with disabilities, including children both

born and unborn. Consistent with the overarching

federal policy of nondiscrimination, Arkansas’s law

aims to combat invidious discrimination against

unborn children with disabilities by preventing

doctors from performing selective abortions based on

disability. Amici believe that the lower court erred in

concluding that the Constitution flatly prohibits

states from preventing such an odious and

discriminatory practice. Amici therefore urge the

Court to grant the petition and reverse the decision

below.

1 Per Rule 37.6, this brief was not authored in whole or in

part by counsel for any party, and no person or entity other

than amici curiae or its counsel made a monetary contribution

to the preparation or submission of this brief. The parties have

received timely notice and have consented to the filing of this

brief.

2

INTRODUCTION &

SUMMARY OF THE ARGUMENT

“‘Down syndrome children, whether born or

unborn, are equal in dignity and value to the rest of

us.’” Preterm-Cleveland v. McCloud, 994 F.3d 512,

518 (6th Cir. 2021) (en banc) (citation omitted).

Congress has a profound respect for individuals with

disabilities and has long protected the disabled

against discrimination of all kinds—including in the

provision of medical care. As reflected in law after

law, Congress has emphasized that individuals with

disabilities are worthy

of fair treatment.

Discriminating against an individual because of his

or her disability fails to show respect for the inherent

value of human life.

Performing an abortion on the basis of a

disability disregards the dignity of those with

disabilities and perpetuates abortion as “a tool of

modern-day eugenics.” Box v. Planned Parenthood of

Indiana & Kentucky, Inc., 139 S. Ct. 1780, 1783

(2019) (Thomas, J., concurring). Consistent with the

overarching federal policy of nondiscrimination, and

in light of the unfortunate history of using abortion

to target children based on race, gender, and

disabilities, Arkansas’s law aims to combat invidious

discrimination

by

preventing

doctors

from

performing selective abortions based on a Down

syndrome diagnosis. The court below wrongly held

that the Constitution forbids such a law.

The decision below “threatens the very existence

of people with Down syndrome.” Pet. 2.

Unfortunately, “[t]he grisly reality is that abortion of

3

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 (quoting Decl. of

Donna J. Harrison, M.D.). Amici roundly reject that

sentiment. “Every child deserves equal protection

under the law—regardless of disability.” Press

Release, Inhofe Leads Senators to Re-Introduce the

Protecting Individuals with Down Syndrome Act

(Jan. 28, 2021) (statement of Sen. Marsha Blackburn

(R-TN)), bit.ly/3dExlOa. The Court should grant the

petition and reverse the decision below.

ARGUMENT

I.

Congress has long protected individuals

with disabilities from discrimination of all

kinds.

America has a “national policy of protecting and

respecting people with disabilities.” Preterm

Cleveland, 994 F.3d at 540 (Griffin, J., concurring).

Discrimination leaves an indelible mark upon its

victims, and “acts of invidious discrimination ...

cause unique evils that government has a compelling

interest to prevent.” Roberts v. U.S. Jaycees, 468 U.S.

609, 628. As reflected in law after law, Congress has

emphasized that individuals with disabilities are

worthy of fair treatment. With the American

Disabilities Act (ADA), for example, Congress sought

“to provide a clear and comprehensive national

mandate for the elimination of discrimination

against individuals with disabilities” and “to provide

clear, strong, consistent, enforceable standards

addressing discrimination against” those individuals.

42 U.S.C. §12101(b). Indeed, Congress “invoke[d] the

4

sweep of [its] congressional authority” to effectuate

these goals. Id.

Congress later expanded these legal protections

to guarantee that those with disabilities could

participate in the workforce. After all, a “[d]isability

is a natural part of the human experience and in no

way diminishes the right of individuals to live

independently, enjoy self-determination, make

choices, contribute to society, pursue meaningful

careers, and enjoy full inclusion and integration in

the economic, political, social, and educational

mainstream of American society.” Pub. L. No. 102569, 106 Stat. 4344, §2 (1992); 29 U.S.C. §701(a)(3).

Accordingly, with the Rehabilitation Act, Congress

worked “to empower individuals with disabilities to

maximize employment, economic self-sufficiency,

independence, and inclusion and integration into

society, through statewide workforce development

systems ..., independent living centers and services,

research, training, demonstration projects, and the

guarantee of equal opportunity.” Id. at §(b)(1).

Recognizing that “[i]mproving educational

results for children with disabilities is an essential

element of our national policy,” Congress has also

worked to secure educational opportunities for

children with disabilities. 20 U.S.C. §1400(c).

Congress passed the Individuals with Disabilities

Education Act (IDEA) to help “ensur[e] equality of

opportunity, full participation, independent living,

and economic self-sufficiency for individuals with

disabilities.” Id. IDEA seeks to “ensure that all

children with disabilities have available to them a

5

free appropriate public education that emphasizes

special education and related services designed to

meet their unique needs and prepare them for

further education, employment, and independent

living.” Id. §1400(d).

These laws are just the tip of the iceberg.

Congress has passed numerous others to combat

discrimination against those with disabilities. See

e.g., Title VI, Civil Rights Act of 1964, 42 U.S.C.

§ 2000d (prohibiting disability discrimination in

programs and activities that receive federal financial

assistance); Affordable Care Act, 42 U.S.C. § 18116

(prohibiting discrimination in healthcare programs

or activities based on disability); Fair Housing Act,

42

U.S.C.

§3601

(prohibiting

disability

discrimination in the housing market); Genetic

Information Nondiscrimination Act, 42 U.S.C.

§2000ff (prohibiting employers from “fail[ing] or

refus[ing] to hire” and from “discriminat[ing] against

any employee with respect to [] compensation, terms,

conditions, or privileges of employment ... because of

genetic information”); Air Carrier Access Act, 47

U.S.C. §41705 (prohibiting discrimination against

those with disabilities in access to air transpiration);

Architectural Barriers Act, 42 U.S.C. §4151 (building

or facilities receiving federal funds must be

accessible and usable by those with disabilities).

Simply put, Congress is committed to rooting out

discrimination against individuals with disabilities.

Moreover, Congress has demonstrated its

commitment to preventing discrimination based on

disability by tying federal funding to compliance with

6

anti-discrimination statutes. See e.g., Title VI, Civil

Rights Act of 1964, 42 U.S.C. § 2000d (prohibiting

disability discrimination in programs and activities

that receive federal financial assistance); 20 U.S.C.

§1440(c)(6) (stating that “it is in the national interest

that the Federal Government have a supporting role

in assisting State and local efforts to educate

children with disabilities”); id. §1411(a)(1) (making

federal funding available to policy compliant states

“to assist them [in] provid[ing] special education and

related services to children with disabilities”); 29

U.S.C. §720(b)(1) (authorizing the release of federal

funds “to assist States in meeting the costs of

vocational rehabilitation services” for the disabled by

establishing statewide comprehensive plans); id.

§721(a)(1)(A)-(2)(B)

(detailing

submission

requirements for the statewide comprehensive plans

that would receive federal funding). At bottom,

Congress has fostered a deep respect for those with

disabilities and has encouraged states to mirror the

“now-enlightened national policy of protecting and

respecting people with disabilities.” Preterm

Cleveland, 994 F.3d at 540 (Griffin, J., concurring).

II. Consistent with that overarching federal

policy, Arkansas’s law aims to prevent

invidious discrimination against unborn

children with disabilities.

A. There is an unfortunate history of using

abortion to target children based on

race, gender, and disabilities.

Arkansas’s law prevents Down syndrome—an

immutable characteristic—“from becoming the sole

7

criterion for deciding whether [a] child will live or

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

In other words, “this law and other laws like it

promote a State’s compelling interest in preventing

abortion from becoming a tool of modern-day

eugenics.” Id.

Historically, the eugenics movement has

marginalized and discriminated against those with

disabilities, deeming them unfit for participation in

society or for life itself. And “abortion has proved to

be a disturbingly effective tool for implementing the

discriminatory preferences that undergird eugenics.”

Id. at 1790. Indeed, the “links between abortion and

eugenics” are well established. Jackson Women’s

Health Org. v. Dobbs, 945 F.3d 265, 285 (5th Cir.

2019) (Ho, J., concurring in the judgment).

A discredited pseudo-science, eugenics “insist[s]

that human progress depend[s] on promoting

reproduction by the best people in the best

combinations.” Adam S. Cohen, Harvard’s Eugenics

Era, Harv. Mag. (2016), bit.ly/3f47non. At its height,

eugenics “encouraged or forced sterilizations of men

and women deemed unfit to reproduce” and involved

discourse marked by “[r]acist, sexist, and classist

assumptions.” Eugenics, Stan. Encyclopedia of Phil.

(2014), stanford.io/3t0LVEc. Francis Galton, who

coined the term “eugenics,” proclaimed that “[w]hat

Nature does blindly, slowly, and ruthlessly, man may

do providently, quickly, and kindly” by “promoting

reproduction between people with desirable qualities

and inhibiting reproduction of the unfit.” Francis

Galton, Essays in Eugenics 42 (1909); Box, 139 S. Ct.

8

at 1784 (Thomas, J., concurring). Those with physical

disabilities were often considered “unfit.” See Daniel

J. Kevles, In the Name of Eugenics 116-17 (1985).

To eradicate the “unfit,” eugenicists turned to

abortion to perpetuate their discriminatory agenda.

In the early twentieth century, “[s]upport for

abortion c[ould] … be found throughout the

literature on eugenics.” Box, 139 S. Ct. at 1789

(Thomas, J., concurring); see also David T. Beito &

Linda Royster Beito, Black Maverick: T.R.M.

Howard’s Fight for Civil Rights and Economic Power

215 (2009) (noting that some African American civil

rights leaders “fretted about the racist implications

of abortion”)). Indeed, the “use of abortion to achieve

eugenic goals [was] not merely hypothetical,” Box,

139 S. C.t at 1783; it “ha[d] been used to justify

abortion from the start,” William McGurn, White

Supremacy and Abortion, Wall. St. J. (Sept. 2, 2019),

on.wsj.com/3tL15hn.

Eugenicists “consider[ed] legalized abortion … as

possible means of influencing the fitness and

happiness and quality of the race.” Henry Harris,

Abortion in Society Russia: Has the Time Come to

Legalize It Everywhere?, 25 Eugenics Rev. 22 (1933).

They viewed abortion as a way for Americans to

“endeavor[] to correct, what, rightly or wrongly, they

regard as social defects.” 6 Havelock Ellis, Studies in

the Psychology of Sex 602 (1910). Indeed, Alan

Guttmacher,

former

president

of

Planned

Parenthood and vice president of the American

Eugenics Society, wrote that “‘the quality of the

parents must be taken into account,’ including

9

‘[f]eeble-mindedness,’ and believed that ‘it should be

permissible to abort any pregnancy ... in which there

is a strong probability of an abnormal or malformed

infant.’” Box, 139 S. Ct. at 1789 (Thomas, J.,

concurring) (quoting Alan Guttmacher, Babies by

Choice or by Chance 198 (1959)). At the same time,

eugenicists acknowledged that “th[e] birth rate [of

the poorest third of the population] would fall rapidly

if artificial abortion were made legal.” Population

Control: Dr. Binnie Dunlop’s Address to the Eugenics

Society, 25 Eugenics Rev. 251 (1934).

Abortions of the disabled unborn increased with

the advent of fetal testing for disabilities in the late

twentieth century. 2 In turn, abortion proponents

increasingly relied on fetal disability to urge the

removal of all abortion restrictions; in such cases,

they argued, abortion would be “condoned by

[doctors’] consciences, accepted by their peers and

demanded by their patients.” Abortion Laws

Condemned, 90 Sci. News 320, 320 (1966); Jane E.

Brody, Prenatal Diagnosis Is Reducing Risk of Birth

Defects, N.Y. Times (June 3, 1971), nyti.ms/3tQSQjL

(“As a result of [prenatal testing], the birth of many

severely abnormal children has been prevented and

hundreds of normal babies have been born to parents

who might not otherwise have dared to have

2 As the rate of fetal defects increased from the 1940s to

the 1970s, technologies capable of identifying fetal disabilities

became more advanced and widespread. See Mary Ziegler, The

Disability Politics of Abortion, 2017 Utah L. Rev 587, 590, 59394.

10

children.”). Indeed, “[t]he potential for eugenic harm

can be traced to the misperceptions and

mischaracterizations of people with disabilities that

transpire within the medical professional-patient

discourse.” Cara Dunne & Catherine Warren, Lethal

Autonomy: The Malfunction of the Informed Consent

Mechanism within the Context of Prenatal Diagnosis

of Genetic Variants, 14 Issues L. & Med. 165, 168

(1998).

Sadly, abortion remains a tool of discrimination

against the disabled in modern society. 3 Worse still,

it is used shockingly often. More than two-thirds of

unborn children in the United States who are

prenatally diagnosed with Down Syndrome are

aborted. Jaime L. Natoli et al., Prenatal Diagnosis of

Down Syndrome: A Systematic Review of

Termination Rates (1995-2011), 32 Prenatal

Diagnosis 142, 150 (2012).

“[I]n the United States and abroad, fetuses with

Down syndrome are disproportionally targeted for

3 Abortion remains a tool of discrimination against women

too. “Sex-selective abortion is a well-known problem” due to cultural and political preferences for male children, especially in

places like China and India. Anna Higgins, Sex-Selection Abortion: The Real War on Women, Charlotte Lozier Inst. (Apr. 13,

2016), bit.ly/3ehmABM. “In China, for example, men outnumber women to the tune of 33 million.” Id. And a recent study

shows that sex-selective abortion is on the rise in the U.S. as

well. See Nicholas Eberstadt & Evan Abramsky, Has the ‘Global

War Against Baby Girls’ Come to America?, Inst. for Family

Studies (Jan 27, 2020), bit.ly/3vGFaJs.

11

abortions.” Preterm-Cleveland, 994 F.3d at 517. Since

the introduction of the American College of

Obstetricians and Gynecologists Practice Bulletin,

which encourages screening fetal chromosomes for

mutations, the abortion rate among women who optin to such screening is estimated at eighty-to-ninety

percent. See Matthew Diehr, Comment, The State of

Affairs Regarding Counseling for Expectant Parents

of a Child with a Disability: Do ACOG’s New Practice

Guidelines Signify the Arrival of a Brave New

World?, 53 St. Louis U. L.J. 1287, 1288-89 (2009).

Abortion rates following a prenatal Down Syndrome

diagnosis are even higher in Europe. See, e.g., George

F. Will, Opinion: The Real Down Syndrome Problem:

Accepting Genocide, Wash. Post (Mar. 14, 2018),

wapo.st/3lSpcYY (detailing Iceland and Denmark’s

near-100% abortion rate following a positive prenatal

test for Down Syndrome); see also, Box, 139 S. Ct. at

1790-91 (Thomas, J., concurring) (discussing the high

abortion rate for children diagnosed with Down

syndrome in the United States and Western Europe).

Further, studies show that some doctors

encourage women to abort after diagnosing a baby

with Down Syndrome. This sad reality is perhaps

unsurprising given that not long ago a doctor and

public health administrator who would later become

Surgeon General remarked that “[a]bortion has had

an important, and positive, public-health effect ...

[by] reduc[ing] the number of children afflicted with

severe defects; the number of Down’s syndrome

infants ... was 64 percent lower than it would have

been without legal abortion.” Freedom of Choice Act

of 1989: Hearings on S. 1912 Before the Sen. Comm.

12

on Lab & Human Resources, 101st Cong. 199 (1990)

(statement of Joycelyn Elders). Today, ten percent of

doctors have “flatly admitted they ‘urge’ aborting

children with Down syndrome.” Pet. 7. And twentyfour percent of women in one study said their doctor

insisted they abort their baby after diagnosing the

baby with Down syndrome. Id. Such directives are

often rooted in “false stereotypes and misinformation

from doctors with little knowledge of the condition.”

Pet. 2.

As acknowledged by a testifying expert in this

case, “[t]he 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 (quoting Decl. of Donna J.

Harrison, M.D.); see also Erik Parens & Adrienne

Asch, The Disability Rights Critique of Prenatal

Genetic Testing, 29 Hastings Ctr. Rep., Sept.-Oct.

1999, at S1, S2 (1999) (“[S]elective abortion

expresses negative or discriminatory attitudes not

merely about a disabling trait, but about those who

carry it … signal[ing] an intolerance of diversity.”).

Judges across the country have acknowledged

the sordid connection between eugenics and abortion.

See App. 20a (Erickson, J., concurring) (recognizing

selective abortions as part of a “neo-eugenics

movement”); Preterm-Cleveland, 994 F.3d at 536

(Sutton, J., concurring) (describing Ohio’s law as an

“anti-eugenics statute”); id. at 538 (Griffin, J.,

concurring) (noting that “[e]ugenics was the root of

the Holocaust and is a motivation for many of the

selective abortions that occur today”); Planned

13

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

State Dep't of Health, 888 F.3d 300, 311 (7th Cir.

2018) (Manion, J., concurring in part and dissenting

in part) (“Surely, Indiana has a compelling interest

in attempting to prevent this type of private

eugenics.”); Planned Parenthood of Ind. and Ky. v.

Comm’r of Ind. State Dep’t of Health, 917 F.3d 532,

536 (7th Cir. 2018) (Easterbrook, J., dissenting from

denial of reh’g en banc) (describing Indiana's law as a

“eugenics statute”); Jackson Women's Health Org.,

945 F.3d at 285 (Ho, J., concurring in the judgment)

(“among past abortion advocates were ‘some

eugenicists [who] believed that abortion should be

legal for the very purpose of promoting eugenics’”).

And because “[u]sing abortion to promote eugenic

goals is morally and prudentially debatable on

grounds different from those that underlay the

statutes [Planned Parenthood of Southeastern

Pennsylvania v.] Casey considered,” the issue was

ripe for state legislatures. Planned Parenthood, 917

F.3d at 536 (Easterbrook, J., dissenting).

B. Arkansas’s law seeks to prevent

abortion from becoming a tool of

modern-day eugenics by prohibiting

discrimination based on disability.

Arkansas’s law prohibits a doctor from

intentionally performing an abortion or attempting

to perform an abortion “with the knowledge that a

pregnant woman is seeking an abortion solely on the

basis of” a “test result indicating” or a “prenatal

diagnosis of Down Syndrome” in an unborn child, or

for “any other reason to believe that an unborn child

14

has Down Syndrome.” Ark. Code Ann. §20-16-2103

(2017). The court below held that the U.S.

Constitution forbids such a law. Unfortunately,

“[t]hat conclusion threatens the very existence of

people with Down syndrome in this country. And it

sends an unmistakable message to people with Down

syndrome that the Constitution, as interpreted by

this Court, is indifferent to their survival.” Pet. 2.

Arkansas put forth strong evidence of its

compelling interest in eradicating the “stigmatic

message” that “a life with Down syndrome isn’t

worth living,” Pet. 24, and in preventing the Down

syndrome “population from being eliminated.” Pet. 2.

Yet the district court declined to address Arkansas’s

interest in antidiscrimination, and the Eighth

Circuit deemed that interest irrelevant. Pet. App.

10a, 132a. Instead, the court below held that any law

that places a substantial obstacle in the path of a

woman seeking a pre-viability abortion is per se

invalid. That decision is mistaken. Under this

Court’s precedents, abortion regulations that

reasonably serve a compelling state interest are

constitutional.

Arkansas’s

law

reasonably

furthers

its

compelling interest in antidiscrimination and in

preventing abortion from becoming “a tool of modernday eugenics,” Box, 139 S. Ct. at 1783 (Thomas, J.,

concurring), “both before and after viability,” Tori

Gooder, Comment, Selective Abortion Bans: The

Birth of a New State Compelling Interest, 87 U. Cin.

L. Rev. 545, 562 (2018). As the Sixth Circuit recently

held, “emphasis on pre-viability is misplaced” when

15

the State expresses “valid and legitimate” interests

in preventing the stigmatization of the Down

Syndrome community from discriminatory abortions,

protecting women from coercion to abort by

physicians, and protecting the integrity and ethics of

the medical profession, because “[t]he strengths of

these interests is the same throughout pregnancy”

and does not “turn[] on the viability of the fetus.”

Preterm-Cleveland, 994 F.3d at 521, 525-26.

Moreover, “the viability standard fails to

adequately consider the substantial interest of the

state in protecting the lives of unborn children as

well as the state’s ‘compelling interest in preventing

abortion from becoming a tool of modern-day

eugenics.’” Pet. App. 17a (Shepherd, J., concurring).

While the “new eugenics movement is more subtle”

than that of the 20th century, “a state could

nonetheless conclude that it poses a great and grave

risk to its citizen.” Id. at 19a (Erickson, J.,

concurring); see also supra Section II.A.

The “Constitution permits States to convey their

interest in the dignity of all human beings in all

manner of ways,” and seeking to “avoid the stigma”

of discrimination against unborn children “based on

disability, sex, and race” is the “[m]ost basic of all.”

Preterm-Cleveland, 994 F.3d at 536 (Sutton, J.,

concurring). Indeed, the state has a “compelling

interest in prohibiting its physicians from knowingly

engaging in the practice of eugenics,” especially since

eugenics “is a motivation for many of the selective

abortions that occur today.” Id. at 538 (Griffin, J.,

concurring). In particular, antidiscrimination laws

16

like Arkansas’s seek to reject the “‘odious view that

some lives are worth more than others’ and [to]

ensure that people with Down syndrome are not

eliminated in America”—interests that are “wholly

distinct” from the State’s interest in protecting

potential life. Id. at 545 (Bush, J., concurring).

Other states, too, have recognized and acted on

these important interests. Arizona, Indiana,

Kentucky, Louisiana, Missouri, Mississippi, North

Dakota, Ohio, Tennessee, and Utah—have all passed

similar laws. 2021 Ariz. SB 1457; 2019 Ky. Acts ch.

020, § 311.731; La. Stat. Ann. §40:1061.1.2; Miss.

Code Ann. §41-41-401, -407 (the State “maintains a

‘compelling interest in preventing abortion from

becoming a tool of modern-day eugenics’” and in

antidiscrimination generally); Mo. Ann. Stat.

§188.038 (explaining its interest in preventing the

“victimiz[ation of] the disabled unborn child at his or

her most vulnerable stage” and that aborting babies

with Down syndrome “raises grave concerns for the

lives of those who do live with disabilities. It sends a

message of dwindling support for their unique

challenges, fosters a false sense that disability is

something that could have been avoidable, and is

likely to increase the stigma associated with

disability”); N.D. Cent. Code §14-02.1-04.1; Tn. Stat.

§39-15-214, -217 (finding that discriminatory

abortions are “antithetical to the core values [of]

equality, freedom, and human dignity enshrined in

both

the

United

States

and

Tennessee

Constitutions,” and acknowledging that “[t]he

historical use of abortion as a means to

discriminatory ends is fundamentally objectionable

17

and conflicts with this state’s legitimate, substantial,

and compelling interest in preventing discrimination

and discriminatory practices”); Utah HB 166. And

Pennsylvania and South Dakota are either

considering passing this type of law or are in the

process of doing so. Pa. SB 21; S.D. HB 1110.

Congress itself has demonstrated a particular

interest in preventing discrimination against unborn

children with disabilities. Earlier this year, the

House and the Senate introduced companion bills

that would make it illegal for a doctor to perform an

abortion when the doctor knows it is sought because

the unborn child has or might have Down Syndrome.

Protecting Individuals with Down Syndrome Act. S.

75, 117th Cong. (2021); H.R. 532, 117th Cong. (2021).

This legislation recognizes the tragic history of

discrimination against individuals with disabilities

and seeks “to end the unconscionable treatment and

discrimination people with disabilities have faced for

decades.” Lankford Joins Inhofe to Call for Greater

Protections for Children with Down Syndrome,

James Lankford U.S. Sen. for Okla. (Jan. 29, 2021),

bit.ly/3cb7H2y (“Lankford Press Release”) (statement

of Sen. Ben Sasse (R-NE)).

“Babies born with Down syndrome are often

sources of joy and inspiration to their families and

communities,” and “[i]t is tragic to think their chance

at life could be stolen away simply because of a

genetic disorder.” Id. (statement of Sen. Cindy HydeSmith (R-MS)). “A dwindling Down Syndrome

population, which now stands at about 350,000,

could mean less institutional support and reduced

18

funds for medical research. It could also mean a

lonelier world for those who remain.” Amy Harmon,

Prenatal Test Puts Down Syndrome in Hard Focus,

N.Y. Times (May 9, 2007), nyti.ms/3szmU3m.

Arkansas’s law not only endeavors to prevent

discrimination against those with Down syndrome,

but it also “moves us closer to a society that respects

life in all forms and all stages.” Lankford Press

Release (statement of Sen. Tom Cotton (R-AR)). At

bottom, having Down syndrome—or any other

disability—“doesn’t make anyone less human.” Id.

(Sasse). Arkansas recognizes that and so should this

Court.

CONCLUSION

For all these reasons, this Court should grant the

petition and reverse the decision below.

Respectfully submitted,

THOMAS R. MCCARTHY

Counsel of Record

TIFFANY H. BATES

ANTONIN SCALIA LAW SCHOOL

SUPREME COURT CLINIC

CONSOVOY MCCARTHY PLLC

1600 Wilson Boulevard

Suite 700

Arlington, VA 22209

(703) 243-9423

tom@consovoymccarthy.com

May 13, 2021

Counsel for Amici Curiae

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

List of Amici Curiae . . . . . . . . . . . . . . . . . . . . . . App. 1

App. 1

APPENDIX

U.S. Senate

Tom Cotton (AR)

Marsha Blackburn (TN)

James M. Inhofe (OK)

John Boozman (AR)

John Kennedy (LA)

Mike Braun (IN)

James Lankford (OK)

Bill Cassidy, M.D. (LA)

Mike Lee (UT)

Kevin Cramer (ND)

Jerry Moran (KS)

Steve Daines (MT)

Rob Portman (OH)

Joni K. Ernst (IA)

James E. Risch (ID)

Cindy Hyde-Smith (MS)

Marco Rubio (FL)

John Thune (SD)

U.S. House of Representatives

Ashley Hinson (IA-01)

Robert Aderholt (AL-04)

Andy Biggs (AZ-05)

Rick W. Allen (GA-12)

Dan Bishop (NC-09)

Jodey C. Arrington (TX-19) Lauren Boebert (CO-03)

Brian Babin (TX-36)

Mike Bost (IL-12)

Jim Banks (IN-03)

Kevin Brady (TX-08)

App. 2

Ted Budd (NC-13)

French Hill (AR-02)

Kat Cammack (FL-03)

Richard Hudson (NC-08)

Ben Cline (VA-06)

Ronny L. Jackson (TX-13)

Eric “Rick” Crawford (AR-01) Bill Johnson (OH-06)

John R. Curtis (UT-03)

John Joyce, M.D. (PA-13)

Jeff Duncan (SC-03)

Fred Keller (PA-12)

Randy Feenstra (IA-04)

Mike Kelly (PA-16)

Michelle Fischbach (MN-07) Doug LaMalfa (CA-01)

Mike Gallagher (WI-08)

Doug Lamborn (CO-05)

Bob Gibbs (OH-07)

Robert Latta (OH-05)

Louie Gohmert (TX-01)

Jake LaTurner (KS-02)

Anthony Gonzalez (OH-16)

Debbie Lesko (AZ-08)

Bob Good (VA-05)

Billy Long (MO-07)

Glenn Grothman (WI-06)

Brian Mast (FL-18)

Michael Guest (MS-03)

Lisa C. McClain (MI-10)

Andy Harris, M.D. (MD-01)

Carol D. Miller (WV-03)

Vicky Hartzler (MO-04)

Mary E. Miller (IL-15)

Yvette Herrell (NM-02)

Mariannette Miller-Meeks

(IA-02)

Jody Hice (GA-10)

Clay Higgins (LA-03)

Alex X. Mooney (WV-02)

App. 3

Ralph Norman (SC-05)

Guy Reschenthaler (PA-14)

Chip Roy (TX-21)

Pete Sessions (TX-17)

Adrian Smith (NE-03)

Christopher H. Smith (NJ-04)

Bryan Steil (WI-01)

W. Gregory Steube (FL-17)

Ann Wagner (MO-02)

Randy K. Weber, Sr. (TX-14)

Brad R. Wenstrup, D.P.M.

(OH-02)

Bruce Westerman (AR-04)

Roger Williams (TX-25)

Steve Womack (AR-03)