Respondents 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,

ATTORNEY GENERAL OF ARKANSAS, 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 IN OPPOSITION

____________________

Meagan Burrows

Brigitte Amiri

Alexa Kolbi-Molinas

Jennifer Dalven

AMERICAN CIVIL LIBERTIES UNION

125 Broad St., 18th Floor

New York, NY 10001

David D. Cole

AMERICAN CIVIL LIBERTIES UNION

915 15th St. NW

Washington, DC 20005

Kendall Turner

Counsel of Record

Elena Zarabozo

O’MELVENY & MYERS LLP

1625 Eye Street, NW

Washington, DC 20006

(202) 383-5204

kendallturner@omm.com

Leah Godesky

O’MELVENY & MYERS LLP

1999 Avenue of the Stars,

8th Floor

Los Angeles, CA 90067

i

QUESTION PRESENTED

Whether the Eighth Circuit correctly held that the

State may not prohibit any woman from obtaining an

abortion before viability based on her reasons for

seeking care.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................ i

INTRODUCTION ..................................................... 1

STATEMENT OF THE CASE .................................. 2

REASONS FOR DENYING THE PETITION.......... 7

A. There is no conflict on the question

presented. ....................................................... 7

B. This case is a poor vehicle to address

the question presented. ................................ 11

C. The Eighth Circuit’s ruling is correct. ......... 13

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

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Bellotti v. Baird,

443 U.S. 622 (1979) ............................................ 18

City of Akron v. Akron Ctr. for Reprod. Health,

462 U.S. 416 (1983) ............................................ 18

Colautti v. Franklin,

439 U.S. 379 (1979) ............................................ 17

Connecticut v. Menillo,

423 U.S. 9 (1975) ................................................ 18

Doe v. Bolton,

410 U.S. 179 (1973) ............................................ 12

EMW Women’s Surgical Ctr., P.S.C. v.

Friedlander,

978 F.3d 418 (6th Cir. 2020).............................. 10

Fisher v. Univ. of Tex. at Austin,

570 U.S. 297 (2013) ............................................ 12

Gonzales v. Carhart,

550 U.S. 124 (2007) .................................11, 13, 16

Hodgson v. Minnesota,

497 U.S. 417 (1990) ............................................ 18

Hopkins v. Jegley,

968 F.3d 912 (8th Cir. 2020)................................ 6

June Medical Services v. Russo,

140 S. Ct. 2103 (2020)................................. passim

Mazurek v. Armstrong,

520 U.S. 968 (1997) ............................................ 18

New Hampshire v. Maine,

532 U.S. 742 (2001) ............................................ 21

ii

TABLE OF AUTHORITIES

(continued)

Page(s)

Parents Involved in Community Schs. v. Seattle

Sch. Dist. No. 1,

551 U.S. 701 (2007) ............................................ 12

Planned Parenthood Ass’n of Kansas City, Mo.,

Inc. v. Ashcroft,

462 U.S. 476 (1983) ............................................ 18

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

991 F.3d 740 (7th Cir.), cert. pet. filed, No. 201375 (Apr. 1, 2021)............................................. 10

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

Ind. State Dep’t of Health,

888 F.3d 300 (7th Cir. 2018), rev’d in part on

other grounds sub nom. Box v. Planned

Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780

(2019) ................................................................ 7, 8

Planned Parenthood of Se. Pa. v. Casey,

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

Preterm-Cleveland v. McCloud,

994 F.3d 512 (6th Cir. 2021).........................7, 8, 9

Roe v. Wade,

410 U.S. 113 (1973) .................................14, 16, 17

Simopoulos v. Virginia,

462 U.S. 506 (1983) ............................................ 18

Stenberg v. Carhart,

530 U.S. 914 (2000) .......................................13, 16

Thornburgh v. Am. Coll. of Obstetricians &

Gynecologists,

476 U.S. 747 (1986) ............................................ 18

Turner v. Safley,

482 U.S. 78 (1987) .............................................. 12

ii

TABLE OF AUTHORITIES

(continued)

Page(s)

Whole Woman’s Health v. Hellerstedt,

136 S. Ct. 2292 (2016)................................. passim

Whole Woman’s Health v. Paxton,

972 F.3d 649 (5th Cir.), vacated and en banc

review granted, 978 F.3d 974 (5th Cir. 2020) ... 10

OTHER AUTHORITIES

Ark. Code Ann. § 20-16-2102(1)(B)(i) ....................... 3

Ark. Code Ann. § 20-16-2103(a)................................ 2

Ark. Code Ann. § 20-16-2103(b)(1) ....................... 2, 9

Ark. Code Ann. § 20-16-2103(b)(2) ....................... 2, 9

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

Ark. Code Ann. § 20-16-2104 .................................... 3

Ark. Code Ann. § 20-16-2105 .................................... 3

Ark. Code Ann. § 5-4-201(a)(2) ................................. 3

Ark. Code Ann. § 5-4-401(a)(5) ................................. 3

Deborah Levenson, Debate Surrounding State

Laws for Down Syndrome Fact Sheets, 170 Am.

J. Med. Genetics 555 (Wiley Periodicals, Inc.

2016) ................................................................... 18

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

Syndrome: A Systemic Review of Termination

Rates (1995-2011), 32 Prenatal Diagnosis 142

(2012) .................................................................... 4

Mikyong Shin et al., Prevalence of Down

Syndrome Among Children and Adolescents in

10 Regions of the United States, 124 Pediatrics

1565 (Dec. 2009) ................................................... 3

RULES

Supreme Court Rule 14.1(a) ................................... 10

INTRODUCTION

As this Court has recognized for decades, a State

may not prohibit anyone from obtaining an abortion

before fetal viability. The decision whether to bear a

child is too “intimate and personal” to be “form[ed] under compulsion of the State.” Planned Parenthood of

Se. Pa. v. Casey, 505 U.S. 833, 851 (1992). Because

they are “subject to anxieties, to physical constraints,

to pain that only [they] must bear,” id. at 852, pregnant people have the right to decide—in consultation

with their doctors, their family, and others in their

life—whether to terminate a pregnancy before viability, without the State dictating what reasons are permissible or impermissible. That decisional autonomy—“the private realm of family life which the state

cannot enter”—lies at the very core of the abortion

right. Id. at 851.

In the decision below, the Eighth Circuit correctly

applied these longstanding principles to invalidate an

Arkansas law barring abortion in cases where the

pregnant person seeks care because of a fetal indication of Down syndrome. The Eighth Circuit’s decision

is consistent with the decisions of other courts of appeals. The one decision that Arkansas cites to manufacture a circuit split agreed with the Eighth Circuit

that a State may not impose a pre-viability abortion

ban based on a patient’s reason for obtaining an abortion; it simply concluded that the Ohio statute at issue

was likely constitutional because it—unlike the Arkansas statute here—did not prohibit anyone from obtaining an abortion based on their reason for seeking

care.

2

In any event, this case is a poor vehicle to address

the question presented. Arkansas did not advance the

legal framework it now urges this Court to adopt

when it was before the Eighth Circuit. In fact, no

lower court has considered (much less adopted) Arkansas’s novel argument. And even if this Court were

to embrace Arkansas’s newly minted legal framework, Arkansas would still lose on the record it created. The Court should deny the petition.

STATEMENT OF THE CASE

1. In April 2019, Arkansas enacted Act 619, which

prohibits a physician from providing an abortion

“with the knowledge” that a patient is seeking an

abortion “solely on the basis of” (1) a test result “indicating” that the fetus has Down syndrome; (2) a prenatal diagnosis of Down syndrome; or (3) “[a]ny other

reason to believe” that the fetus has Down syndrome.

Ark. Code Ann. § 20-16-2103(a). “Before performing

an abortion, the physician performing the abortion” is

required to “ask the pregnant woman if she is aware

of any test results, prenatal diagnosis, or any other

evidence that the unborn child may have Down [s]yndrome.” Id. § 20-16-2103(b)(1). If the patient so informs the physician, the physician must tell “the pregnant woman of the prohibition of abortion” contained

in the statute and “[r]equest the medical records of

the pregnant woman relevant to determining whether

she has previously aborted an unborn child or children after she became aware of any test results, prenatal diagnosis, or any other evidence that the unborn

child may have had Down [s]yndrome.” Id. § 20-162103(b)(2).

3

Act 619’s two narrow exceptions allow abortion

only where necessary to save the woman’s life or preserve her health or where the pregnancy resulted

from rape or incest. Id. §§ 20-16-2102(1)(B)(i), 20-162103(d). Violation of the law is a Class D felony, punishable by six years in prison and a fine of $10,000.

Id. §§ 5-4-201(a)(2), 5-4-401(a)(5), 20-16-2104. Violation also leads to mandatory license revocation and

renders the physician liable for actual and punitive

damages. Id. § 20-16-2105.

Act 619 was scheduled to take effect on July 24,

2019. Pet. App. 22a.

3. On June 26, 2019, respondents filed a Section

1983 complaint challenging the constitutionality of

this statute, as well as two other newly enacted abortion restrictions. They asked the district court to enter a temporary restraining order and a preliminary

injunction to preclude petitioners from enforcing all

three laws.

In opposition, Arkansas claimed, as it does now,

that Act 619 counters “systemic prejudice favoring eugenic abortion of children with Down syndrome.” Dkt.

43, at 21. But, in fact, the number of children born

with Down syndrome in the United States has “increased over the last three decades.” Amicus Br. for

California et al. 18 n.41, Little Rock Family Planning

Servs. v. Rutledge, No. 19-2690 (8th Cir. Jan. 7,

2020).1 At the same time, abortions in cases where

1 See also Mikyong Shin et al., Prevalence of Down Syndrome

Among Children and Adolescents in 10 Regions of the United

States, 124 Pediatrics 1565 (Dec. 2009) (number of children born

with Down syndrome increased 31.1% between 1979 and 2003).

4

there is a fetal indication of Down syndrome have

been decreasing, as Arkansas’s own evidence shows.

See CA App. 898-909.2

Arkansas conceded that its law acts as a wholesale

ban on pre-viability abortions for everyone to whom it

is relevant. See, e.g., Dkt. 43, at 30. Because such

bans are unconstitutional under a half-century of this

Court’s precedent, the district court granted respondents’ motion for a temporary restraining order on July

23, 2019. Dkt. 119. Although the district court held

a full-day hearing before issuing that order, Arkansas’s arguments and evidence largely focused on another one of the laws respondents challenged, not Act

619.

On August 6, 2019, the district court issued a preliminary injunction. As relevant here, it held that the

ban at issue is likely unconstitutional because it prohibits “certain abortions prior to viability.” Pet. App.

136a. As the court explained, before viability, “the

State’s interests are not strong enough to support a

prohibition of abortion.” Id. 132a. Consequently, the

court held that respondents were likely to prevail on

the merits of their due process challenge to Act 619.

Id. 134a. Because the district court also found that

the ban would imminently and irreparably harm respondents and their patients, the district court preliminarily enjoined the State from enforcing it. Id.

130a-137a.

2 See Jaime L. Natoli et al., Prenatal Diagnosis of Down Syndrome: A Systemic Review of Termination Rates (1995-2011), 32

Prenatal Diagnosis 142, 147 (2012).

5

Arkansas then filed an interlocutory appeal.

4. After the parties completed their appellate

briefing but before the Eighth Circuit heard oral argument, this Court issued its decision in June Medical Services v. Russo, 140 S. Ct. 2103 (2020). There,

the Court reversed a Fifth Circuit decision allowing

Louisiana to implement a law requiring every physician who provides abortion care to have active admitting privileges at a hospital within 30 miles.

Five Justices supported this result. Both the plurality opinion and the separate concurrence written

by Chief Justice Roberts reaffirmed “the most central

principle of Roe v. Wade”: “a woman’s right to terminate her pregnancy before viability.” June Med.

Servs., 140 S. Ct. at 2135 (Roberts, C.J., concurring in

the judgment); see id. at 2120 (plurality op.). And

both reaffirmed that abortion restrictions are invalid

if they do not “further[] [a] valid state interest” or if

they “present[] a substantial obstacle to a woman

seeking an abortion.” Id. at 2120 (plurality op.) (quoting Whole Woman’s Health v. Hellerstedt, 136 S. Ct.

2292, 2309 (2016)) (second alteration on original); see

id. at 2135 (Roberts, C.J., concurring in the judgment).

The plurality and concurring opinions differed,

however, with respect to whether a law’s burdens

should be weighed against its benefits. The plurality

stated that courts evaluating abortion restrictions

must “consider the burdens a law imposes on abortion

access together with the benefits those laws confer.”

Id. at 2120 (plurality op.) (quoting Whole Woman’s

Health, 136 S. Ct. at 2324). But, in the Chief Justice’s

view, courts evaluating abortion restrictions should

6

not engage in “a weighing of costs and benefits.” Id.

at 2136 (Roberts, C.J., concurring in the judgment).

Rather, as long as the State has a “‘legitimate purpose’” and the law is “‘reasonably related to that

goal,’” the Chief Justice would hold that restrictions

that do “not impose a substantial obstacle [a]re constitutional.” Id. at 2138 (quoting Casey, 505 U.S. at

878). Conversely, under the Chief Justice’s opinion,

restrictions that are not reasonably related to a legitimate purpose or do “impose a substantial obstacle”

are “unconstitutional.” Id.

5. Arkansas urged the Eighth Circuit to adopt the

Chief Justice’s view of the law in another then-pending abortion case. See Response to Rule 28(j) Letter,

Hopkins v. Jegley, No. 17-2879 (8th Cir. July 6, 2020);

Response to Pet’n for Rehearing En Banc, Hopkins v.

Jegley, No. 17-2879 (8th Cir. Oct. 14, 2020). The

Eighth Circuit did so, holding that “Chief Justice Roberts’s separate opinion in June Medical . . . is controlling.” Hopkins v. Jegley, 968 F.3d 912, 916 (8th Cir.

2020). In the Eighth Circuit’s view, that means that

courts may no longer weigh the costs and benefits of

challenged abortion restrictions. Id. at 915. Instead,

“the appropriate inquiry . . . is whether the law poses

a substantial obstacle or substantial burden.” Id. (internal quotation marks and citation omitted).

6. Subsequently, in this case, an Eighth Circuit

panel unanimously affirmed the district court’s grant

of a preliminary injunction to bar enforcement of Act

619. It held that Act 619 is unconstitutional under

fifty years of this Court’s precedent—as well as Chief

Justice Roberts’s opinion in June Medical—because

7

“it is undisputed that” Act 619 “is a substantial obstacle” to obtaining an abortion. Pet. App. 4a-10a.

“[I]ndeed, it is a complete prohibition of abortions

based on the pregnant woman’s reason for exercising

the right to terminate her pregnancy before viability.”

Id. at 10a.

The Eighth Circuit also noted that the lower

courts have consistently recognized that allowing the

State to interrogate and pass upon a person’s reason

for making the decision to end a pregnancy is antithetical to the core privacy right at issue. As the court

explained: “We agree with our sister circuits that it

is ‘inconsistent to hold that a woman’s right of privacy

to terminate a pregnancy exists if . . . the State can

eliminate this privacy right if [she] wants to terminate her pregnancy for a particular purpose.’” Id.

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

Comm’r, Ind. State Dep’t of Health, 888 F.3d 300, 307

(7th Cir. 2018), rev’d in part on other grounds sub

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

139 S. Ct. 1780 (2019)).

REASONS FOR DENYING THE PETITION

A. There is no conflict on the question presented.

1. Only two other courts of appeals have confronted an abortion restriction similar to Arkansas’s,

and their decisions are consistent with the decision

below. Both decisions, like the Eighth Circuit’s decision here, held that a law prohibiting women from obtaining abortions based on their reasons for seeking

such care is unconstitutional. See Preterm-Cleveland

v. McCloud, 994 F.3d 512, 521-22 (6th Cir. 2021);

8

Planned Parenthood of Ind. & Ky., 888 F.3d at 307.

In one of these cases, this Court had the opportunity

to review a holding invalidating a state law similar to

the Arkansas law here but it declined to do so, despite

issuing a per curiam decision regarding another provision of state law presented in that petition. See Box

Pet. i; Box v. Planned Parenthood of Ind. & Ky., Inc.,

139 S. Ct. 1780 (2019).

There is no reason for a different outcome now.

Although the Sixth Circuit vacated a preliminary injunction against the Ohio restriction challenged in

Preterm-Cleveland, it did so only because it determined that Ohio’s restriction does not bar anyone

from “obtain[ing] an abortion because the forthcoming child would have Down syndrome.” 994 F.3d at

522. Here, in contrast, it is “undisputed” that Arkansas’s Act 619 operates as “a complete prohibition of

abortions based on the pregnant woman’s reason for

exercising the right to terminate her pregnancy before viability.” Pet. App. 10a (emphasis added); see id.

at 4a, 7a-10a, 136a; see Pet. 32 (conceding that there

is no dispute on “the severity” of the law’s effect in this

case).

The laws’ different effects have two primary

causes: First, in Ohio, providers are not required to

ask patients if they have any reason to believe a fetus

has Down syndrome or to initiate a search for the patient’s medical records. Preterm-Cleveland, 994 F.3d

at 519. “[E]ven under the full force” of the Ohio law,

as the Sixth Circuit understood it, doctors are free to

remain ignorant of a woman’s reasons for seeking an

abortion and “any woman” remains free to “lawfully

obtain an abortion solely” because she does “not want

9

a child with Down syndrome.” Id. at 522. The Arkansas law, however, requires anyone providing abortion

care to first “ask the pregnant woman if she is aware

of any . . . evidence that the unborn child may have

Down [s]yndrome.”

Ark. Code Ann. § 20-162103(b)(1); see Pet. 9. If she says yes, the provider

must tell her about Act 619 and “[r]equest the medical

records of the pregnant woman relevant to determining whether she has previously aborted an unborn

child or children after she became aware of any test

results, prenatal diagnosis, or any other evidence that

the unborn child may have had Down [s]yndrome.”

Ark. Code Ann. § 20-16-2103(b)(2).

Second, if a doctor in Ohio does learn that a

woman is seeking an abortion because the fetus may

have Down syndrome, the Sixth Circuit found that

she can obtain care elsewhere in the State because

Ohio has multiple abortion clinics and doctors who

provide care at the stage of pregnancy when Down

syndrome can be detected in a fetus. Id. at 528. As

long as the new doctor does not learn of the patient’s

reason, the abortion is legal. In Arkansas, however,

only one clinic provides abortion care at the stage of

pregnancy when a woman would learn about a fetal

indication of Down syndrome. See Pet. App. 218a.

Thus, as a practical matter, a woman in Arkansas

seeking an abortion on the basis of a belief that the

fetus has Down syndrome would not be able to obtain

an abortion once her provider learns of her reason for

seeking care.

10

Accordingly, the Sixth Circuit’s decision does not

conflict with the decision below and there is no disagreement in the courts of appeals on the question presented.

2. The bulk of Arkansas’s argument that there is a

split in the courts of appeals relates to a different issue: “whether courts still can consider state interests

in reviewing abortion laws.” Pet. 30. This question is

not properly presented in the petition, see S. Ct. R.

14.1(a), and it has no bearing on the outcome of this

case, see infra Part C.3.

Even if this question were properly presented and

relevant to the outcome, it would be unworthy of review because the courts of appeals agree that they

may consider state interests in assessing the constitutionality of abortion restrictions. Pet. App. 8a-9a;

Whole Woman’s Health v. Paxton, 972 F.3d 649, 653

(5th Cir.) (court may consider alleged benefits of

State’s prohibition on standard dilation-and-evacuation procedure for second-trimester abortions), vacated and en banc review granted, 978 F.3d 974 (5th

Cir. 2020); EMW Women’s Surgical Ctr., P.S.C. v.

Friedlander, 978 F.3d 418, 439 (6th Cir. 2020) (discussing State’s asserted interest in requiring abortion

providers to obtain hospital transfer and transport

agreements); Planned Parenthood of Ind. & Ky., Inc.

v. Box, 991 F.3d 740, 751 (7th Cir.) (although State

could “offer evidence of benefits” of restriction on minors’ access to abortion, State did not do so), cert. pet.

filed, No. 20-1375 (Apr. 1, 2021). And no court has

held that state interests, compelling or otherwise, can

justify a pre-viability abortion ban. That is because

this Court’s precedent squarely forecloses that notion.

11

See June Med. Servs., 140 S. Ct. at 2120 (plurality

op.); id. at 2135 (Roberts, C.J., concurring in the judgment); Gonzales v. Carhart, 550 U.S. 124, 145 (2007);

Casey, 505 U.S. at 846; see also infra Part C.

B. This case is a poor vehicle to address the

question presented.

1.a. This case is a poor vehicle to consider the question presented because no court has ever applied the

novel tests Arkansas proposes to evaluate the constitutionality of abortion restrictions, and Arkansas did

not argue for these tests before the Eighth Circuit.

Arkansas’s novel test seems to be that abortion restrictions are valid as long as they “reasonably further

compelling interests.” Pet. 18, 29. At other times,

however, Arkansas contends that even “laws that

place a substantial obstacle in the path of a woman

seeking an abortion . . . are permissible if they further

a compelling interest.” Pet. 13.

Arkansas did not argue either test below, let alone

assert (as it does now) that this Court’s precedent already establishes one or both of these tests. Instead,

in the Eighth Circuit, Arkansas conceded that this

Court’s precedent forecloses application of even strict

scrutiny—a more demanding test than those it now

proposes. CA Br. 30-31. But it argued that Act 619

would survive strict scrutiny because it serves a compelling state interest and is “narrowly tailored” to

that interest. CA Br. 28; see Pet. 29.

Even if Arkansas were correct that one of these

novel tests applies, it would still lose on the record it

created. Both tests require factual analysis: When

this Court evaluates the validity of a regulation of a

12

fundamental right by asking whether “it is reasonably related to” a State’s legitimate interest, the Court

considers whether the State has “presented persuasive data to show that” the law advances the State’s

interest. Doe v. Bolton, 410 U.S. 179, 195 (1973).

Even in the context of incarceration, where the protection of some constitutional rights may be diminished, courts applying this test consider factors such

as whether “the logical connection between the regulation and the asserted goal is so remote as to render

the policy arbitrary or irrational”; “whether there are

alternative means of exercising the [constitutional]

right that remain open to” those regulated; “the impact” that other efforts to accommodate “the asserted

constitutional right will have”; and whether “obvious,

easy alternatives” to the regulation exist, such that

the regulation is an “exaggerated response” to the

purported state interest. Turner v. Safley, 482 U.S.

78, 89-90 (1987) (internal quotation marks and citations omitted).

Similarly, when this Court considers whether a

regulation is narrowly tailored to serve a State’s compelling interest, it asks whether the State engaged in

“serious, good faith consideration of” alternatives.

Parents Involved in Community Schs. v. Seattle Sch.

Dist. No. 1, 551 U.S. 701, 735 (2007). Such consideration, though “necessary . . . is not sufficient to satisfy

strict scrutiny: The reviewing court must ultimately

be satisfied that no workable” alternatives would “suffice.” Fisher v. Univ. of Tex. at Austin, 570 U.S. 297,

312 (2013).

Arkansas had the opportunity (over respondents’

objection) to introduce evidence relevant to sustaining

13

Act 619 under either of these tests, but it did not. See

Dkt. 83, at 2 (denying respondents’ motion to strike,

Dkt. 75-1); TRO Tr. 235:13-236:21. That makes this

case a bad vehicle to address Arkansas’s novel legal

tests, even setting aside Arkansas’s failure to argue

for those tests in the courts below.

b. This case is also a poor vehicle to address the

question presented because the district court granted

a preliminary injunction only on respondents’ privacy

claim; the merits of that challenge, as well as respondents’ vagueness challenge to Act 619, remain pending

before that court. Dkt. 1, ¶¶ 118-119. As respondents

explained in their district court briefing, Act 619 is

invalid not only because it unduly burdens access to

abortion before viability—the ground on which the

district court enjoined it, and the ground on which the

Eighth Circuit upheld that injunction—but also because it is unconstitutionally vague. See Dkt. 1,

¶¶ 66-74. Even if the Supreme Court were to grant

review and agree with Arkansas, respondents’ vagueness challenge to Act 619 would continue in district

court, and applicable precedent would require the district court to invalidate the law on that ground.

C. The Eighth Circuit’s ruling is correct.

1. The Eighth Circuit’s decision is correct. This

Court has consistently held that, “[b]efore viability, a

State ‘may not prohibit any woman from making the

ultimate decision to terminate her pregnancy.’” Gonzales, 550 U.S. at 146 (emphasis added) (quoting Casey, 505 U.S. at 879); see Stenberg v. Carhart, 530 U.S.

914, 921 (2000) (declining to “revisit” holding that “before ‘viability . . . the woman has a right to choose to

terminate her pregnancy’” (quoting Casey, 505 U.S. at

14

870)). This Court has never wavered from this essential principle. See, e.g., June Med. Servs., 140 S. Ct.

at 2120 (plurality op.); id. at 2134-38 (Roberts, C.J.,

concurring in the judgment); Whole Woman’s Health,

136 S. Ct. at 2320.

Arkansas’s ban strikes at the core of the abortion

right: the right of a pregnant person to decide for herself whether to terminate a pregnancy. See Casey,

505 U.S. at 869-70; Roe v. Wade, 410 U.S. 113, 163

(1973). That decision is one of “the most intimate and

personal choices a person may make in a lifetime” and

is “central to personal dignity and autonomy,” which

are in turn “central to the liberty protected by the

Fourteenth Amendment.” Casey, 505 U.S. at 851. As

Casey recognized, this highly personal decision is influenced by “intimate views with infinite variation”

and “must” “be shaped to a large extent” by the

woman’s “own conception of her spiritual imperatives

and her place in society.” Id. at 852-53; see also id. at

853 (explaining that right to privacy involves “personal decisions concerning not only the meaning of

procreation but also human responsibility and respect

for it”).

Arkansas’s argument is antithetical to this

longstanding precedent. Arkansas’s view is that the

right to privacy countenances government interrogation of a person’s reasons for ending a pregnancy before viability and delegating to the State the power to

decide which reasons are acceptable. Not so. The

State may not dissect a person’s reasons for exercising

this right, nor dictate “right” and “wrong” reasons for

terminating her pregnancy, any more than it may leg-

15

islate acceptable and unacceptable reasons for exercising other constitutional rights. The State cannot

regulate proper reasons for going to church, attending

a protest, contributing to a political campaign, or inviting only particular guests into one’s home. So, too,

the State cannot circumscribe the reasons a person

chooses to exercise her right to obtain a pre-viability

abortion.

The State’s intervention in a person’s decision

whether to terminate a pregnancy before fetal viability is especially inappropriate because the woman

“who carries a child to full term is subject to anxieties,

to physical constraints, to pain that only she must

bear.” Casey, 505 U.S. at 852. That “suffering is too

intimate and personal for the State to insist, without

more, upon its own vision of the woman’s role.” Id.

For all of these reasons, a “woman’s right to terminate

her pregnancy before viability . . . is a rule of law and

a component of liberty” that this Court “cannot renounce.” Id. at 871.

2.a. Tacitly recognizing the strength of this precedent, Arkansas never asks this Court to overturn its

holdings in Roe, Casey, and their progeny. Instead,

Arkansas tries to imagine this precedent away. It

claims that Casey already allows States to prohibit

people from obtaining abortions before viability if “a

compelling interest” motivates the prohibition. Pet.

13. That is wrong. Casey specifically held that

“[b]efore viability, the State’s interests are not strong

enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.” 505 U.S. at 846.

16

The Court added: “[A] statute which, while furthering the interest in potential life or some other valid

state interest, has the effect of placing a substantial

obstacle in the path of a woman’s choice” before viability “cannot be considered a permissible means of

serving [the State’s] legitimate ends” and is unconstitutional. Id. at 877.

This Court has repeatedly affirmed that “[b]efore

viability, a State ‘may not prohibit any woman from

making the ultimate decision to terminate her pregnancy.’” Gonzales, 550 U.S. at 146 (emphasis added)

(quoting Casey, 505 U.S. at 879); see also June Med.

Servs., 140 S. Ct. at 2135 (Roberts, J., concurring in

the judgment) (Casey reaffirmed “the most central

principle of Roe v. Wade,” “a woman’s right to terminate her pregnancy before viability”); id. at 2120 (plurality op.); Stenberg, 530 U.S. at 921 (declining to “revisit” holding that “before ‘viability . . . the woman has

a right to choose to terminate her pregnancy’” (quoting Casey, 505 U.S. at 870)); Roe, 410 U.S. at 163 (explaining that, before viability, doctors and patients

are “free to determine, without regulation by the

State” that abortion is the appropriate course of action). Neither this Court nor any other court has ever

embraced the contrary rule that Arkansas invents—

namely, that States may ban abortion before viability

in certain circumstances, and thereby prohibit people

from making the ultimate decision to terminate their

pregnancies.

Arkansas nevertheless maintains that different

rules should govern pregnant people whose fetuses

have Down syndrome. It concedes that the State can-

17

not force a woman to carry to term a pre-viability fetus without Down syndrome, Pet. 15, 19-20, no matter

her reasons for doing so. But it maintains that the

State can force her to carry to term a fetus with Down

syndrome, if it is the diagnosis that prompts the decision to obtain an abortion. Pet. 24-29. That makes no

sense. And under Roe and Casey, the State’s interests, whatever they may be, become compelling

enough to prohibit abortion only at viability. Casey,

505 U.S. at 846; Roe, 410 U.S. at 163-64. Arkansas’s

approach runs directly contrary to the “deep, personal

character” of the right to decide whether to terminate

a pre-viability pregnancy. Casey, 505 U.S. at 853.

To the extent Arkansas suggests that, at the time

of Roe and Casey, this Court did not consider that

some patients may choose an abortion because they

obtain a fetal-anomaly diagnosis, it is wrong. In

Colautti v. Franklin, 439 U.S. 379 (1979), for example,

“[t]he plaintiffs-appellees introduced evidence that

modern medical technology makes it possible to detect

whether a fetus is afflicted with such disorders as

Tay-Sachs disease and Down’s syndrome.” Id. at 389

n.8. At the time, such testing could not “be completed

until after 18-20 weeks’ gestation,” a pre-viability

point in pregnancy. Id. Yet the Colautti Court invalidated the abortion restrictions challenged in that

case because they could be read to limit the right to

abortion before “viability, as that term has been defined in Roe and in” subsequent cases. Id. at 389, 390,

398.3

3 Although Arkansas suggests that some of this Court’s prec-

edents upheld burdensome abortion laws as long as there was “a

18

b. Even if this Court embraced Arkansas’s novel

test(s), Arkansas would still lose. Despite Arkansas’s

assertion that “[w]omen make these choices, for the

most part, not for self-interested reasons, but because

of the false narrative surrounding” Down syndrome,

Pet. 8, “there is no record evidence that Arkansas has

taken steps to regulate the speech of relevant medical

providers on this issue to ensure a thoughtful and informed choice and to advance the State’s interest,”

Pet. App. 133a-134a. Unlike many other States, Arkansas has not enacted a law requiring patients who

receive a fetal diagnosis of Down syndrome to be provided with medically accurate, unbiased information

about the condition.4 Nor has Arkansas elected to adequately fund state services designed to assist those

living with Down syndrome and their families, despite the fact that individuals with Down syndrome

reasonable medical basis” for them, see Pet. 15-22, that is incorrect. Those decisions consistently invalidated laws that unnecessarily burdened access to pre-viability abortion, while upholding laws that did not impose an undue burden. See City of Akron

v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 438-39 (1983);

Connecticut v. Menillo, 423 U.S. 9 (1975) (per curiam); Simopoulos v. Virginia, 462 U.S. 506, 517-19 (1983); Bellotti v. Baird, 443

U.S. 622, 640-41 (1979) (plurality op.); Hodgson v. Minnesota,

497 U.S. 417, 455 (1990) (plurality op.); id. at 500 (Kennedy, J.,

concurring in the judgment in part and dissenting in part);

Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476

U.S. 747, 772 (1986); Planned Parenthood Ass’n of Kansas City,

Mo., Inc. v. Ashcroft, 462 U.S. 476, 490 (1983); Mazurek v. Armstrong, 520 U.S. 968, 974 (1997) (per curiam).

Disability-rights advocates have successfully persuaded

several other state legislatures to enact such requirements. See,

e.g., Deborah Levenson, Debate Surrounding State Laws for

Down Syndrome Fact Sheets, 170 Am. J. Med. Genetics 555

(Wiley Periodicals, Inc. 2016).

4

19

often lack the “access to affordable resources and supports they need to live a healthy, comfortable life, including medical care, therapies, inclusion in schools,

employment opportunities, and independent living.”

See Dkt. 63, ¶¶ 6-8 (declaration of parent of child with

Down syndrome in Arkansas)

Instead of adopting any of these measures, the Arkansas legislature simply enacted Act 619 without

consideration of any alternatives to advance the

State’s purported interest. Pet. App. 134a. The Arkansas legislature does not seem to have considered

even the evidence Arkansas put into the record in this

case, which shows that—long before any State enacted Act 619—birth rates for babies with Down syndrome in the United States were rising, while abortion rates for fetuses with Down syndrome were falling. See supra pp. 3-4.

If Arkansas wanted to justify Act 619 on reasonable-relationship or narrow-tailoring grounds, it had

the opportunity to introduce evidence to support that

argument. The district court accepted thousands of

pages of evidence into the preliminary-injunction record, including voluminous evidence regarding Act

619, over respondents’ objection. See supra pp. 12-13.

But Arkansas offered no evidence to support the argument it now makes. As a result, even if this Court

were to embrace one of Arkansas’s newly minted tests

for abortion restrictions, the district court still acted

properly in preliminarily enjoining Act 619.

3.a. To the extent Arkansas argues that June Medical supports its position, it is also incorrect. Under

both the plurality opinion and Chief Justice Roberts’s

20

concurring opinion in June Medical, the ban is unconstitutional.

According to the plurality opinion, abortion restrictions are invalid if they do not “further[] [a] valid

state interest” or if they have “the effect of placing a

substantial obstacle in the path of a woman’s choice”

when “consider[ing] the burdens a law imposes on

abortion access together with the benefits those laws

confer.” 140 S. Ct. at 2120 (plurality op.) (second alteration in original) (quoting Whole Woman’s Health,

136 S. Ct. at 2309, 2324). Arkansas concedes that Act

619 imposes a substantial obstacle to abortion care for

all women to whom it is relevant, and thus is unconstitutional under the plurality’s test.5

Act 619 also fails under the legal framework articulated in the June Medical concurrence. Under that

framework, courts should not “weigh[]” the “costs and

benefits of an abortion regulation,” but ask whether

the regulation is reasonably related to a legitimate

state interest and, if so, whether it imposes “a substantial obstacle.” Id. at 2136 (Roberts, C.J., concurring in the judgment). Restrictions that are reasonably related to a legitimate state interest and do “not

impose a substantial obstacle [a]re constitutional,

As the language just quoted from the plurality opinion

shows, Arkansas is simply wrong to say that the plurality held

that “only ‘unnecessary’ health regulations are invalid,” irrespective of any analysis of a law’s burdens. Pet. 23. That is one

way an abortion restriction might be unconstitutional. Arkansas

correctly recognized this in the Eighth Circuit. See Response to

Pet’n for Rehearing En Banc 2, Hopkins v. Jegley, No. 17-2879

(8th Cir. Oct. 14, 2020).

5

21

while” restrictions that do “impose a substantial obstacle” are “unconstitutional.” Id. at 2138. Again, Arkansas admits that Act 619 imposes a substantial obstacle. In fact, the Eighth Circuit already applied the

June Medical concurrence’s test, as well as the halfcentury of this Court’s precedent that preceded June

Medical, to invalidate Arkansas’s law. See Pet. App.

9a-10a.

b. Moreover, Arkansas never briefed the import of

June Medical below or even asked for an opportunity

to do so. And, in a related case challenging other abortion restrictions, Arkansas argued that courts should

not balance the benefits of abortion restrictions

against their burdens in assessing whether they impose an undue burden. Rather, it urged the Eighth

Circuit to hold that “the existence of a ‘substantial obstacle’ [i]s ‘a sufficient basis for’ invalidating the challenged regulations and no additional analysis or

weighing [i]s necessary.” Response to Pet’n for Rehearing En Banc 5, Hopkins v. Jegley, No. 17-2879

(8th Cir. Oct. 14, 2020) (quoting June Med. Servs., 140

S. Ct. at 2139 (Roberts, C.J., concurring in the judgment)); see id. at 6-7 (urging Eighth Circuit to adopt

this view). But here, it changes course and argues

that the existence of a substantial obstacle should not

be the end of the inquiry. Pet. 23. Instead, it now

contends, courts should consider the benefits of abortion regulations. The State should not be able to obtain this Court’s review based on novel arguments not

only not advanced below, but directly contradicted by

the State’s own position in a related case. Cf. New

Hampshire v. Maine, 532 U.S. 742, 750-51 (2001).

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CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

Meagan Burrows

Brigitte Amiri

Alexa Kolbi-Molinas

Jennifer Dalven

AMERICAN CIVIL LIBERTIES UNION

125 Broad St., 18th Floor

New York, NY 10001

David D. Cole

AMERICAN CIVIL LIBERTIES UNION

915 15th St. NW

Washington, DC 20005

June 28, 2021

Kendall Turner

Counsel of Record

Elena Zarabozo

O’MELVENY & MYERS LLP

1625 Eye Street, NW

Washington, DC 20006

(202) 383-5204

kendallturner@omm.com

Leah Godesky

O’MELVENY & MYERS LLP

1999 Avenue of the Stars,

8th Floor

Los Angeles, CA 90067