Amicus Curiae Brief — Box v. Planned Parenthood of Indiana and Kentucky, Inc., 139 S. Ct. 1780 (2019) (No. 18-483)

No. 18-483

In The

Supreme Court of the United States

KRISTEN BOX, COMMISSIONER,

INDIANA DEPARTMENT OF HEALTH, ET AL.,

Petitioners,

Vv.

PLANNED PARENTHOOD OF INDIANA

AND KENTUCKY, INC., ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

BRIEF OF AMICUS CURIAE CATHOLICVOTE.ORG IN

SUPPORT OF PETITIONERS

Scott W. Gaylord

Counsel of Record

ELON UNIVERSITY SCHOOL OF LAW

201 North Greene Street

Greensboro, NC 27401

Phone: (336) 279-9331

Email: sgaylord@elon.edu

Counsel of Record for Amicus Curiae

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond VA 23219 (800) 847-0477

TABLE OF CONTENTS

Ee GE PETC TO RIED vcnicavessvnsnonesnvecsicnnseovetonness ii

SOE GO SUI itscestesseneresnessovesscsccsnesesssesncss |

REASONS FOR GRANTING THE WRIT.................. 2

1. The Court Should Grant Certiorari

Because the Circuits Are in Conflict

over the Appropriate Standard of

Review to Apply to Fetal Remains

SE Ra SE ee LL See 4

A. The Seventh Circuit’s Stringent

Rational Basis Analysis Openly

Conflicts with the Eighth Circuit,

which Gives Greater Deference to a

State’s Legislative Judgment. .................... 6

B. Lower Federal Courts Have

Reached Conflicting Conclusions as

to Whether Fetal Remains Statutes

Implicate a Woman’s Fundamental

Right to Choose and, If So, What che

Proper Standard of Review Is Post-

RE EET ESAS sys 10

Il. Certiorari Should Be Granted Because

the Seventh Circuit Misapplies the

Rational Basis Standard of Review

that This Court Has Articulated,

Thereby Impermissibly Interfering

with the Legislative Function....................... 16

SD iikisctiissesihathimaastunaieiaibinierniniiabanvisilinianiaia 23

TABLE OF AUTHORITIES

CASES

City of Akron v. Akron Ctr. for Reproductive

Health, Inc., 462 U.S. 416 (1983)................00.. 20

FCC v. Beach Comme'ns, Inc., 508 U.S. 307

(RES RE SEER ATE ES ed ree neo passim

Flemming v. Nestor, 363 U.S. 603 (1960)................. 18

Gonzales v. Carhart, 550 U.S. 124 (2007)........ passim

Heller v. Doe, 509 U.S. 312 (1993).................... passim

Hopkins v. Jegley, 267 F. Supp.3d 1024 (E.D.

I i 11,13

June Med. Servs., LLC v. Gee, 280 F. Supp.3d

ES A Re eee 11

Lehnhausen v. Lake Shore Auto Parts Co., 410

to caenaiiensadaisies 23

Maher v. Roe, 432 U.S. 464 (1977) ..............ccccceeeeeees 19

McGowan v. Maryland, 366 U.S. 420 (1961) ............. 3

Planned Parenthood Ass'n. v. Fitzpatrick, 401

F. Supp. 554 (E.D. Pa. 1975), aff'd sub

nom., Franklin v. Fitzpatrick, 428 U.S.

Pe ee icnmnatiisindepnitisshininashpnipatadidinimanstante 20, 21

ii

Planned Parenthood of Ark. & E. Okla. v.

Jegley, 864 F.3d 953 (8th Cir. 2017)................ 14

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

Comm 'r of Ind. St. Dept. of Health, 896

F.3d 809 (7th Cir. 2018) ................. 12, 13, 14, 16

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

Comm ’r of Ind. St. Dept. of Health, 888

F.3d 300 (7th Cir. 3018) ..........00...0.......... passim

Planned Parenthood of Minn. v. Minnesota,

910 F.2d 479 (8th Cir. 1990) .................... passim

Planned Parenthood of Se. Pa. v. Casey, 505

Be SITE siiceneadcsnscieninacanceincsmbecaionnses passim

Planned Parenthood of Wis., Inc. v. Schimel,

806 F.3d 908 (7th Cir. 2015) ..................0... 14, 16

Roe v. Wade, 410 U.S. 113 (1973)............... 4, 9, 19, 20

Vance v. Bradley, 440 U.S. 93 (1979) ..............00cc0000 22

Washington v. Glucksberg, 521 U.S. 702

IIIT citi jisaidecisalahsbinis stica metabinlbuuiausbiotereeabennnivebe 17

Webster v. Reprod. Health Servs., 492 U.S.

IIIT incon dcccisvainanindapuatineliistaepesietgnenstvecsoranes 19

West Ala. Women's Ctr. v. Miller, 299

F.Supp.3d 1244 (M.D. Ala. 2017)..................... 14

West Ala. Women's Ctr. v. Williamson, 900

if Ei fey Le % Rees 13

iv

Whole Woman's Health v. Hellerstedt, 136 S.

GO, Se Gt cvcsencssnnshtncdecenakeuientesbaamasanns passim

Whole Woman's Health v. Hellerstedt, 231

F.Supp.3d 218 (W.D. Tex. 2017) ...................... 13

Whole Woman's Health v. Smith, No: A-16-

CV-01300-DAE, 2018 WL. 4225048

oh £ § G CAR 11, 15

INTERESTS OF AMICUS!

CatholicVote.org Education Fund (“CatholicVote”)

is a nonpartisan voter education program devoted to

building a Culture of Life. It seeks to serve our

country by supporting educational activities that

promote an authentic understanding of ordered

liberty and the common good. Given its educational

mission and focus on the dignity of the person,

CatholicVote is deeply concerned about the fetal

remains statute at issue in Planned Parenthood of

Ind. & Ky., Inc. v. Commissioner of Ind. State

Department of Health (““PPINK’), 888 F.3d 300 (7th

Cir. 2018), as well as the standard courts should

apply when analyzing statutes passed to preserve

and promote fetal human life. Whereas Planned

Parenthood of Southeastern Pa. v. Casey, 505 U.S.

833 (1992), and Gonzales v. Carhart, 550 U.S. 124

(2007), safeguard the States’ interest in potential

life, the Seventh Circuit and other lower federal

courts threaten that interest by interpreting it

narrowly and in a manner inconsistent with those

decisions. CatholicVote, therefore, comes forward to

support the right of States to recognize and promote

the dignity of fetal human life through fetal remains

statutes and otherwise.

' As required by Rule 37.2(a), counsel of record for each party

received timely notice of the intent to file this amicus brief and

consented to its filing. Pursuant to Rule 37.6, amicus states

that no counsel for a party authored this brief in whole or in

part, and no person other than the amicus and its counsel made

any monetary contribution intended to fund the preparation or

submission of this brief.

REASONS FOR GRANTING THE WRIT

Review is warranted in this case for at least two

reasons. First, the Seventh Circuit’s decision in

PPINK creates a circuit conflict with the Eighth

Circuit on an issue of national import—the

constitutionality of fetal remains statutes—and in

the process demonstrates broad-based confusion

between and among lower federal courts regarding

the standard to apply to abortion regulations

designed to advance the States’ “legitimate and

substantial interest in preserving and promoting

fetal life.” Gonzales, 550 U.S. at 145. In the Seventh

Circuit alone, ten judges have authored or joined

four different opinions supporting three distinct

analyses of Indiana’s fetal remains statute. The

panel dissent and the four judges who dissented

from denial of rehearing en banc joined the Eighth

Circuit in finding that fetal remains statutes readily

satisfy rational basis review. The panel majority, on

the other hand, concluded that the Indiana statute

could not survive that deferential standard because

the State’s interest in promoting fetal life was not

legitimate and no other interest supported the law.

Finally, the three judges concurring in the denial of

rehearing en banc argued (consistent with district

courts in Texas, Louisiana, and Arkansas) that the

undue burden test, not rational basis review, should

apply to Indiana’s fetal remains statute. Moreover,

given that the Seventh Circuit denied en banc

review, the circuit conflict is entrenched, and only

this Court can resolve the split and clarify the

constitutionality of fetal remains statutes, which

“show [a State’s] profound respect for the life within

the woman.” Jd. at 157.

Second, the Seventh Circuit's rigorous rational

basis analysis directly conflicts with this Court's

articulation of that standard in cases such as Heller

v. Doe, 509 U.S. 312 (1993), and FCC v. Beach

Communications, Inc., 508 U.S. 307 (1993). Rather

than consider whether “any state of facts reasonably

may be conceived to justify” Indiana’s law, McGowan

v. Maryland, 366 U.S. 420, 426 (1961), the Seventh

Circuit panel distinguished the Eighth Circuit's

decision in Planned Parenthood of Minn. v.

Minnesota, 910 F.2d 479 (8th Cir. 1990), which

upheld a similar law under rational basis review,

and concluded that no legitimate interest supported

the Indiana law.

In addition, the split between and among the

Seventh and Eighth Circuits, judges within the

Seventh Circuit, and district courts in Texas,

Louisiana, and Arkansas as to the proper standard

to apply to fetal remains statutes—rational basis or

undue burden—highlights the need for this Court to

clarify the governing standard. Furthermore, if the

Court determines that the undue burden test is the

appropriate standard, this Court also should explain

whether and how the balancing test in Whole

Woman’s Health v. Hellerstedt, 136 S. Ct. 2292

(2016), applies to regulations that are designed to

advance and promote the States’ interest in fetal

human life.

I. The Court Should Grant Certiorari Because

the Circuits Are in Conflict over the

Appropriate Standard of Review to Apply to

Fetal Remains Statutes.

In Roe v. Wade, this Court’ expressly

acknowledged that States have an “important and

legitimate interest in potential life.” 410 U.S. 113,

163 (1973). Almost 20 years later, though, the

plurality in Casey concluded that Roe and its

progeny significantly “undervalued” the States’

interest in “promoting” and “protecting the life of the

unborn.” Casey, 505 at 873. And Gonzales

confirmed that a central premise in Casey is “that

the government has a legitimate and substantial

interest in preserving and promoting fetal life.”

Gonzales, 550 U.S. at 145. The split between the

Seventh and Eighth Circuits affords this Court with

a clean vehicle to determine how courts should

assess and value a State’s interest in protecting and

promoting fetal human life through fetal disposition

statutes or otherwise.

At least seven States have adopted fetal remains

statutes, which promote respect for fetal human life.

By providing for the respectful disposal of fetal

remains, a State conveys its belief that the human

fetus, which alone has the potential to become a

person under the Fourteenth Amendment, is worthy

of dignity and respect both while it is alive and after

its death. See Gonzales, 550 U.S. at 157 (“The

government may use its voice and its regulatory

authority to show its profound respect for the life

within the woman.”). In striking down Indiana's

fetal remains statute, the Seventh Circuit

engendered an inter-Circuit conflict and reinforced

another conflict between and among the lower

courts. First, the Seventh Circuit expressly rejected

the Eighth Circuit's conclusion that a Minnesota

fetal remains statute was constitutional. In so

doing, the Seventh Circuit denied that Indiana had

even a legitimate interest in fetal life that might

support the State’s fetal remains statute and

insisted that, even if the State had an interest in

“the humane and dignified disposition of an aborted

fetus,” the statute was not rationally related to that

interest. PPINK, 888 F.3d at 309.

Second, the Seventh Circuit's application of

rational basis review is inconsistent with decisions of

federal district courts in Texas, Louisiana, and

Arkansas to assess fetal remains statutes under the

undue burden standard. Widespread uncertainty as

to the standard governing fetal remain statutes is

evidenced by the conflict within the Seventh Circuit

itself. Three Seventh Circuit judges contend that

the undue burden test should apply, five would

follow the Eighth Circuit in applying a deferential

rational basis review, and two others (the two

constituting the minority position but establishing

the binding precedent in the Seventh Circuit) have

employed a heightened form of the rational basis

standard. This Court's review is warranted,

therefore, to determine whether fetal remains

statutes require undue burden review and, if so, how

Casey and Hellerstedt apply in this context.

A. The Seventh Circuit’s Stringent Rational

Basis Analysis Openly Conflicts with the

Eighth Circuit, which Gives Greater

Deference to a_ State’s Legislative

Judgment.

in PPINK, the Seventh Circuit expressly

considered and rejected the Eighth Circuit’s decision

upholding Minnesota’s fetal remains statute.

PPINK, 888 F.3d at 308-09. While both courts

purported to apply the rational basis standard, the

Seventh Circuit panel diverged sharply from the

Eighth Circuit's rational basis analysis in two

important respects. First, the panel concluded that

“the State’s interest in requiring abortion providers

to dispose of aborted fetuses in the same manner as

human remains is not legitimate.” Jd. at 308.

According to the panel, the Indiana statute treated a

fetus like a human being, which was tantamount to

recognizing the fetus as a Fourteenth Amendment

“person.” Jd. at 308. The panel emphasized that

because a fetus is not a person under Roe, Indiana’s

interest was illegitimate. In so holding, the Seventh

Circuit directly contradicted the Eighth Circuit,

which concluded that a State can validly treat fetal

human remains like non-fetal human remains:

Planned Parenthood’s argument that the

statute represents the state’s conclusion that

fetal remains are the equivalent of human

remains is also unavailing ... [and] even

assuming this is the true purpose, we do not

find it to be an invalid purpose. A state may

make a value judgment favoring childbirth

over abortion.

Planned Parenthood of Minn., 910 F.2d at 487.

The Seventh Circuit also attempted to

distinguish fetal homicide and wrongful death

statutes from Indiana’s fetal remains disposition

requirements. According to the court, whereas the

former seek to protect the fetus in utero, when

dealing with fetal remains “there is no potential life

at stake.” PPINK, 888 F.3d at 308. In the Seventh

Circuit, then, the State’s interest in protecting

potential life apparently is legitimate only if a

challenged statute directly regulates the treatment

of a living fetus. See id. (“Gonzales involved a ‘ban

on abortions that involve partial delivery of a living

fetus.” (quoting Gonzales, 550 U.S.at 148)). This

holding not only is inconsistent with the Eighth

Circuit’s decision, see Planned Parenthood of Minn.,

910 F.2d at 488 (“[W]e therefore find that the fetal

disposal statute is reasonably related to the state's

legitimate interests.”), but also threatens to

“repudiate[]” a premise that this Court found to be

central to Casey's analysis—that the State “has a

legitimate and substantial interest in [both]

preserving and promoting fetal life.” Gonzales, 550

U.S. at 145 (emphasis added).

Fetal disposition statutes promote a State’s view

that fetal human life is unique and valuable by

treating the remains of the fetus with dignity and

respect. Although such statutes do not preserve the

life of the deceased fetuses to which the laws apply,

Casey and Gonzales do not define the States’ interest

in potential life so narrowly. See Casey, 505 U.S. at

877 (“Regulations which do no more than create a

structural mechanism by which the State ... may

express profound respect for the life of the unborn

are permitted, if they are not a substantial obstacle

to the woman's exercise of the right to choose.”);

Gonzales, 550 U.S. at 157 (explaining that the

government may “express|[] respect for the dignity of

human life” through measures that are intended to

stop the “coarsen|ing of] society to the humanity of

not only newborns, but all vulnerable and innocent

human life, [which] mak[es] it increasingly difficult

to protect such life”).

Yet the Seventh Circuit's restrictive

interpretation of a State’s interest in fetal human

life makes it unclear whether a State has a

legitimate interest in either fetal homicide statutes

(because they apply only after the fetus is killed, a

time when “there is no potential life at stake”) or the

dignified and respectful burial and cremation of non-

fetal human remains (because after a human person

passes away “there is no |person or human] life at

stake”). PPINK, 888 F.3d at 308. Thus, review is

necessary to resolve the inter-circuit conflict and to

clarify the nature and scope of the States’ interest in

fetal human life.

Second, the Seventh and Eighth Circuits have

imposed very different burdens on the government

with respect to the requirement that a government

interest and a_ regulation bear a “rational

relationship.” The Seventh Circuit required a strict

connection between Indiana’s fetal remains statute

and its proffered interest in the “humane and

dignified disposal of an aborted fetus.” Jd. at 309.

After declaring that that interest is not legitimate

because fetuses are not human, the panel contended

that, even if the interest were legitimate, the fetal

remains statute is not rationally related to the

interest because the law does not treat fetuses as

human enough. See id. (“[T]he fetal disposition

provisions do not treat aborted fetuses the same as

human remains.”); Gonzales, 550 U.S. at 160 (“There

would be a flaw in this Court’s logic ... were we first

to conclude a ban on both D & E and intact D & E

was overbroad and then to say it is irrational to ban

only intact D & E because that does not proscribe

both procedures.”). While the fetal remains statute

(1) permits a woman to dispose of fetal remains “in

whatever manner she wishes, without restriction”

and (2) allows for the “simultaneous cremation of

aborted fetuses,” Indiana provides an exhaustive list

of the acceptable ways to dispose of non-fetal human

remains and allows for simultaneous cremation of

non-fetal human remains only with prior written

consent of specified persons. PPINK, 888 F.3d at

309. Consequently, the panel held that it could not

“identify a rational relationship between the State's

interest in ‘the humane and dignified disposal of

human remains’ and the law as written.” Jd.

The Seventh Circuit's analysis not only

contravenes the deferential standard the Eighth

Circuit employed, but also imposes an impossible

standard on the State. Casey and Roe cannot be

interpreted to require Indiana or any other State to

treat human fetuses like non-fetal humans in all

respects because, if the fetus must receive the same

treatment as a human person, then abortion would

be illegal. See Roe, 410 U.S. at 156-57 (“If this

suggestion of personhood is_ established, the

appellant’s case, of course, collapses, for the fetus’

right to life would then be guaranteed specifically by

the Amendment.”). Rather, Roe and Casey

distinguish between fetal human life and human

10

persons, which explains why Indiana can reasonably

require the dignified and respectful treatment of

fetal remains without mandating that fetal remains

be treated in precisely the same way as other human

remains.

Moreover, requiring a tight connection between

the State’s interest and the fetal remains statute

contradicts the deferential standard used in the

Eighth Circuit. According to the Eighth Circuit,

under rational basis review “a legislature must have

the latitude to ‘establish classifications that roughly

approximate the nature of the problem perceived,

that accommodate competing concerns both public

and private, and that account for limitations on the

practical ability of the State to remedy every evil.”

Planned Parenthood of Minn., 910 F.2d at 488.

Applying this standard, the court concluded that it

could not “disagree with this [legislative] judgment”

and, therefore, held “that the fetal disposal statute is

reasonably related to the state’s legitimate

interests.” Jd.

B. Lower Federal Courts Have Reached

Conflicting Conclusions as to Whether

Fetal Remains Statutes Implicate a

Woman’s Fundamental Right to Choose

and, If So, What the Proper Standard of

Review Is Post-Hellerstedt.

While the Seventh and Eighth Circuits diverged

as to the constitutionality of fetal disposition

statutes, they both (along with the four Judges who

dissented from the denial of rehearing en banc in

PPINK) determined that the statutes do not

11

implicate a fundamental right. See PPINK, 888 F.3d

at 307 (“PPINK agrees that no fundamental right is

at stake.”); Planned Parenthood of Minn., 910 F.2d

at 486 (stating that the Minnesota statute has “no

significant impact on a woman’s exercise of her right

to an abortion.”). In her opinion concurring in the

denial of rehearing en banc in PPINK, however,

Chief Judge Wood (joined by Judges Rovner and

Hamilton) disagreed with that determination.

According to Chief Judge Wood, Indiana’s fetal

remains statute “involves a fundamental right”

because it regulates “the final step in the overall

process of terminating (or losing) a pregnancy.”

PPINK, No. 17-3163, 2018 WL 3655854, at *2 (7th

Cir. June 25, 2018). Consequently, the Chief Judge

contended that the undue burden test should apply,

requiring courts to consider the finar cial « «*s of the

statutorily required disposition of fetal remains, the

possible psychological trauma resulting from “the

potential stigmatizing impact of these measures,”

and the burden that the Indiana statute might have

when viewed in tandem with other abortion

regulations, “as is required under [Hellerstedt], 136

S. Ct. at 2309, 2313.” PPINK, 2018 WL 3655854, at

*3.

Consistent with Chief Judge Wood's assertion,

district courts in Arkansas, Louisiana, and Texas

have applied the undue burden standard set out in

Casey and most recently interpreted in Hellerstedt.

See Hopkins v. Jegley, 267 F. Supp.3d 1024, 1098

(E.D. Ark. 2017); June Med. Servs., LLC v. Gee, 280

F. Supp.3d 849, 868 (M.D. La. 2017); Whole Woman’s

Health v. Smith, No: A-16-CV-01300-DAE, 2018 WL

4225048 at *8 (W.D. Tex. Sept. 5, 2018). Each of

12

these courts has observed that Hellerstedt “requires

that courts consider the burdens a law imposes on

abortion access together with the benefits those laws

confer,” Hellerstedt, 136 S. Ct. at 2309. Their

invocation of Hellerstedt, however, raises at least

three important questions that only this Court can

answer.

First, does Hellerstedts balancing test or some

other version of the undue burden standard apply

when a regulation seeks to advance the State’s

“substantial” and “profound” interest in potential

life? Casey, 505 U.S. at 876, 878. As support for the

balancing test, Hellerstedt cites only to Casey's

treatinent of Pennsylvania’s parental consent and

spousal notification requirements, which were

predicated on interests other than the promotion of

fetal human life.” Accordingly, given that

Hellerstedt did not consider the nature or scope of

the government’s interest in potential life, this Court

must determine whether and how the balancing test

applies to a measure designed to serve that

important and legitimate interest.

The Seventh and Eleventh Circuits and a district

court in the Fifth Circuit have concluded that the

same balancing test applies regardless of the

2 While the Seventh Circuit has suggested otherwise, see

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

Dept. of Health, 896 F.3d 809, 818 (7th Cir. 2018) (claiming

that the State argued in Casey that “spousal notification and

parental involvement ... were related to its interest in potential

life.”), in addressing the spousal notification and parental

consent provisions, Casey considers only “the husband's

interest in the potential life of the child” and not the State's.

See Casey, 505 U.S. at 898 (emphasis added).

13

interest involved. See Planned Parenthood of Ind. &

Ky., Inc. v. Comm’r of Ind. St. Dept. of Health

(“PPINK II”), 896 F.3d 809, 818 (7th Cir. 2018) (“The

State is incorrect that the standard for evaluating

abortion regulations differs depending on the State’s

asserted interest or that there are even two different

tests.”); West Ala. Women’s Ctr. v. Williamson, 900

F.3d 1310, 1326 (11th Cir. 2018) (“The State cites no

support for the proposition that a different version of

the undue burden test applies to a law regulating

abortion facilities.”); Whole Woman’s Health v.

Hellerstedt (“Hellerstedt II”), 231 F.Supp.3d 218, 228

(W.D. Tex. 2017) (“(DSHS’s argument that a different

test applies when the State expresses respect for the

life of the unborn is a work of fiction ... .”). If that is

correct, then lower courts need guidance as to the

weight of the States’ interest in fetal human life and

how that interest should be balanced against

potential burdens.

Second, when are a_ regulation’s benefits

sufficient to survive Hellerstedts balancing test?

Lower court decisions reflect confusion about how to

weigh the benefits of an abortion regulation against

its burdens. For example, district courts in the Fifth

and Eighth Circuits have decided that “[a] regulation

will not be upheld unless the benefits it advances

outweigh the burdens it imposes.” Hopkins, 267

F Supp.3d at 1055-56. See Hellerstedt Il, No. A-16-

CA-1300, 2018 BL 30317, at *6 (W.D. Tex. Jan. 29,

2018) (“[T]he record suggests Chapter 697 imposes

an undue burden on abortion access because its

burdens exceed its benefits.”). A district court in the

Eleventh Circuit, on the other hand, has interpreted

Hellerstedt to require a sliding scale under which a

14

State must show a greater purported benefit as the

burden increases: “|T]he more severe the obstacle a

regulation creates, the more robust the government's

justification must be, both in terms of how much

benefit the regulation provides towards achieving

the State’s interests and in terms of how realistic it

is the regulation will actually achieve that benefit.”

West Ala. Women’s Ctr. v. Miller, 299 F.Supp.3d

1244, 1262 (M.D. Ala. 2017).

Moreover, the Seventh and Eight Circuits

approach the balancing test in ways that differ from

these district courts and from each other. The

Seventh Circuit insists that, “[iJf a burden

significantly exceeds what is necessary to advance

the state’s interests, it is ‘undue.” PPINK II, 896

F.3d at 827 (emphasis added) (quoting Planned

Parenthood of Wis., Inc. v. Schimel, 806 F.3d 908,

919 (7th Cir. 2015)). For its part, the Eighth Circuit

interprets Hellerstedt to require a court to determine

whether a regulation’s “benefits are substantially

outweighed by the burdens it imposes.” Planned

Parenthood of Ark. & E. Okla. v. Jegley, 864 F.3d

953, 960 n.9 (8th Cir. 2017). These varying

interpretations evidence the uneven application of

Hellerstedt’s balancing test and the need for this

Court to clarify its demands.

Third, if Hellerstedt’s balancing test applies to

regulations designed to advance a State’s interest in

potential life, how does a court weigh the benefits

associated with those regulations? Hellerstedt does

not overrule Casey or Gonzales, but interprets

principles underlying those decisions. Thus, if

Hellerstedt requires balancing in all circumstances

as the Seventh and Eleventh Circuits have

15

concluded, Casey and Gonzales necessarily employed

the balancing test when upholding the various

regulations that were enacted to promote the

government’s interest in potential life.

In both cases, this Court demanded very little in

terms of benefit from those regulations. For

example, Casey upheld Pennsylvania’s 24-hour

waiting period because of “[t]he idea that important

decisions will be more informed and deliberate if

they follow some period of reflection.” Casey, 505

U.S. at 885 (emphasis added). Similarly, Gonzales

sustained the partial-birth abortion ban based on a

“reasonable inference” about its “necessary effect ...

and the knowledge it conveys.” Gonzales, 550 U.S.

at 159. Moreover, in doing so, the Gonzales Court

noted: “While we find no reliable data to measure

the phenomenon, it seems wunexceptionable to

conclude some women come to regret their choice to

abort ... .” /d. at 159 (emphasis added). Therefore,

under Casey and Gonzales, it need only be

conceivable that a regulation could cause a woman to

choose childbirth over abortion for the regulation to

yield benefits sufficient to survive the undue burden

test.

Lower courts, however, are asking for much

more. The Texas district court in Smith stated that

“It}he main benefit (indeed, perhaps the only benefit)

of [Texas’s fetal remains statute] is the expression of

respect for potential life,” a benefit the court

considered “minimal.” Smith, 2018 WL 4225048, at

*14. In addition, in affirming an injunction against

an Indiana law requiring an 18-hour waiting period

following an ultrasound, the Seventh Circuit cited a

lack of evidence that the waiting period would

16

produce the benefits the State claimed. PPINK II,

896 F.3d at 831 (“A statute that curtails the

constitutional right to an abortion ... cannot survive

challenge without evidence that the curtailment is

justifiable by reference to the benefits conferred by

the statute.” (alteration in original) (quoting

Schimel, 806 F.3d at 921)). These lower court

decisions appear to “undervalue” the States’ interest

in preserving and promoting fetal human life and,

consequently, conflict with Casey and Gonzales.

Supreme Court review is critical, then, because

the lower courts are splintered as to (1) whether

fetal disposition provisions implicate a fundamental

right—a determination that, as Chief Judge Wood

notes, “is capable of dictating the outcome” in

abortion-related litigation—and (2) what the

relationship between and among Casey, Gonzales,

and Hellerstedt is and how the undue burden

standard applies to the States’ important interest in

fetal human life.

Il. Certiorari Should Be Granted Because

the Seventh Circuit Misapplies the

Rational Basis Standard of Review that

This Court Has Articulated, Thereby

Impermissibly Interfering with the

Legislative Function.

Review also is proper in this case because the

Seventh Circuit's application of the rational basis

standard of review conflicts with binding precedent

of this Court. Specifically, the Seventh Circuit fails

to follow this Court’s instructions in Heller and

Beach Communications regarding the degree of

17

deference that courts must afford legislative

judgments under rational basis review.

If a measure does not implicate a fundamental

right, it need only “be rationally related to legitimate

government interests” to withstand rational basis

review. Washington v. Glucksberg, 521 U.S. 702, 728

(1997). In this way, rational basis review is “a

paradigm of judicial restraint.” Beach Commce’ns,

508 U.S. at 314. As Heller explains, the rational

basis standard requires courts to give broad

deference to legislative acts:

[Rjational-basis review ... “is not a license for

courts to judge the wisdom, fairness, or logic of

legislative choices.” ..._ [A] legislature ... need

not “actually articulate at any time the

purpose or rationale supporting its

classification.” Instead, a classification “must

be upheld ... if there is any reasonably

conceivable state of facts that could provide a

rational basis for the classification.”

Heller, 509 U.S. at 319-20 (citations omitted). The

standard is the same for both due process and equal

protection challenges. See Glucksberg, 521 U.S. at

728 (citing Heller, 509 U.S. at 319-20).

Under the rational basis standard, “legislative

choice ... may be based on rational speculation ... .”

Beach Comme’ns, 508 U.S. at 315; Heller, 509 U.S. at

320 (same). And “[a] State ... has no obligation to

produce evidence to sustain the rationality of a

statutory classification.” Heller, 509 U.S. at 320.

Consequently, courts can consider any reasonable

purpose—even purposes that never entered the mind

of the legislature: “[Blecause we never require a

18

legislature to articulate its reasons for enacting a

statute, it is entirely irrelevant for constitutional

purposes whether the conceived reason for the

challenged distinction actually motivated the

legislature.” Beach Commce’ns, 508 U.S. at 315. See

also Flemming v. Nestor, 363 U.S. 603, 612 (1960)

(“[Ijt is ... constitutionally irrelevant whether [the

possible justification this Court identified] in fact

underlay the legislative decision, as it is irrelevant

that the section [does] not extend to all to whom the

postulated rationale might in logic apply.”).

Moreover, under rational basis review, courts do

not engage in means-ends testing:

[Clourts are compelled ... to accept a

legislature’s generalizations even when there

is an imperfect fit between means and ends.

A classification does not fail rational-basis

review because “it is not made _ with

mathematical nicety ... .”. “The problems of

government are practical ones and may

justify, if they do not require, rough

accommodations—illogical, it may be, and

unscientific.”

Heller, 509 U.S. at 321 (citations omitted). With this

broad deference, “the precise coordinates of ...

legislative judgment [are] virtually unreviewable,

since the legislature must be allowed leeway to

approach a perceived problem incrementally.” Beach

Commce’ns, 508 U.S. at 316.

The problem in PPINK is that the Seventh

Circuit panel applied the rational basis standard in

a manner completely inconsistent with Heller and

Beach Communications. Not only did the panel

19

refuse to consider the interest in public sensibilities

that the Eighth Circuit credited, PPINK, 888 F.3d at

309 (dismissing the interest in “protecting the

public’s sensibilities” because “Indiana focuses on

the interest of the fetus”), it also rejected Indiana's

interest in “promoting respect for potential life.” Jd.

at 308 (holding that Indiana lacked a legitimate

interest because “there is no potential life at stake”).

The Seventh Circuit’s application of the rational

basis standard reflects at least five serious conflicts

with this Court’s case law. First, the fact that this

Court has determined a fetus is not a “person” for

purposes of the Fourteenth Amendment is irrelevant

to whether Indiana has a legitimate interest in the

“humane and dignified disposal of human remains.”

PPINK, 888 F.3d at 308. In Webster v. Reproductive

Health Services, 492 U.S. 490, 504 (1989), this Court

found that no constitutional consideration even was

warranted with respect to a declaration in the

preamble of a Missouri law that “[t]he life of each

human being begins at conception.” And this Court

repeatedly has recognized that a State may

encourage childbirth over abortion, a position that

implicitly reflects the State’s view about personhood.

See, e.g., Casey, 505 U.S. at 886 (“[U]nder the undue

burden standard a State is permitted to enact

persuasive measures which favor childbirth over

abortion ... .”); Maher v. Roe, 432 U.S. 464, 473-74

(1977) (“[T]he right in Roe v. Wade ... implies no

limitation on the authority of a State to make a

value judgment favoring childbirth over abortion ...

PR

Second, as the Eighth Circuit pointed out in

Planned Parenthood of Minn., this Court “has

20

recognized the legitimate interest of states and

municipalities in regulating the disposal of fetal

remains from abortions and miscarriages.” Planned

Parenthood of Minn., 910 F.2d at 481. In fact, less

than two years after Roe, this Court affirmed

without opinion a district court’s decision upholding

a statute requiring “the humane disposition of dead

fetuses” as a valid exercise of the State’s police

power directed at public health. Planned

Parenthood Ass’n. v. Fitzpatrick, 401 F.Supp. 554,

572-73 (E.D. Pa. 1975), affd sub nom., Franklin v.

Fitzpatrick, 428 U.S. 901 (1976). Moreover, in City

of Akron v. Akron Center for Reproductive Health,

Inc., this Court stated that, although the fetal

remains disposition requirement at issue was

unconstitutionally vague, the city was “free ... to

enact more carefully drawn regulations that further

its legitimate interest in proper disposal of fetal

remains.” 462 U.S. at 451 n.45, overruled on other

grounds by Casey, 505 U.S. at 881-85.

Third, the PPINK panel conflated its

consideration of the legitimacy of Indiana’s interests

with the question of whether the statute served one

or more of those interests. Contrary to what the

panel suggested, the fact that the disposition

requirement applies to an aborted fetus in no way

diminishes the legitimacy of Indiana’s interest in

promoting and protecting potential life. See

Gonzales, 550 U.S. at 145 (“[A] premise central to

[Casey's] conclusion [is] that the government has a

legitimate and substantial interest in preserving and

promoting fetal life ... .”); Casey, 505 U.S. at 870

(“[T]he State has a legitimate interest in promoting

the life or potential life of the unborn ... .”); Roe, 410

21

U.S. at 154 (“[A] State may properly assert [an]

important interest{] ... in protecting potential life.”).

Thus, the Seventh Circuit obscured the relevant

question under rational basis review—whether

Indiana’s fetal remains disposition requirement

conceivably could serve the interest.

Fourth, the court in PPINK improperly

attempted to divine Indiana’s actual motive in

enacting the requirement and then assessed the

requirement’s effectiveness relative to the perceived

motive. Given pre-existing requirements of indiana

law, the court determined that the State could not

have been seeking to advance a public health

interest because that interest already was protected.

See PPINK, 888 F.3d at 309 (“[T]he State’s interest

here goes well beyond the sanitary or unitary

disposal of aborted fetuses, interests which are

already being carried out under current Indiana law

and health’ regulations _...”). But Beach

Communications instructs that a State’s motivation

“is entirely irrelevant for constitutional purposes.”

Beach Commce’'ns, 508 U.S. at 315 (emphasis added).

That Indiana could have a public health reason for

requiring different types of surgical “byproducts” to

be disposed of in different ways is wholly

conceivable, and that is enough to sustain the fetal

remains disposition requirement under Fitzpatrick

regardless of whether State legislators had some

other purpose in mind and even if a court believes

the measure is redundant. See Beach Commce’ns,

508 U.S. at 314 (“[J]udicial intervention is generally

unwarranted no matter how unwisely we may think

22

a political branch has acted.” (quoting Vance v.

Bradley, 440 U.S. 93, 97 (1979)).°

Fifth and finally, the Seventh Circuit engaged in

the type of means-ends analysis that is repugnant to

rational basis review. Under Heller, “courts are

compelled ... to accept a legislature’s generalizations

even when there is an imperfect fit between means

and ends.” Heller, 509 U.S. at 321. Nevertheless,

the circuit court inappropriately evaluated the

extent to which existing law already addressed

public health concerns regarding the disposition of

fetal remains. In addition, after assuming that the

State had a legitimate interest, the panel evaluated

the Indiana statute’s fit, concluding that the law did

not treat fetal remains sufficiently like Indiana

treats other human remains. Thus, the panel

ignored this Court's admonition in Beach

Communications that “the precise coordinates of ...

legislative judgment [are] virtually unreviewable”

under the rational basis standard. Beach Commce’ns,

508 U.S. at 316.

® In addition, under Gonzales, the requirement easily could

survive rational basis review as a regulation that might

advance the State's interest in promoting potential life. Over

Justice Ruth Bader Ginsberg’s objection that the federal

partial-birth abortion ban “saves not a single fetus from

destruction, for it targets only a method of performing

abortion,” Gonzales, 550 U.S. at 181 (Ginsberg, J., dissenting),

this Court upheld the ban as a measure whose message might

encourage some women to choose childbirth over abortion. See

Gonzales, 550 U.S. at 160 (‘It is a reasonable inference that a

necessary effect of the regulation and the knowledge it conveys

will be to encourage some women to carry the infant to full

term... .”).

23

As this Court has explained, applying rational

basis review correctly is critical in our system of

separation of powers: “Only by faithful adherence to

this guiding principle of judicial review of legislation

is it possible to preserve to the legislative branch its

rightful independence and its ability to function.”

Beach Comme’ns, 508 U.S. at 315 (quoting

Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S.

356, 365 (1973)). Thus, review of the Seventh

Circuit's decision is warranted to confirm the proper

application of rational basis review and, in the

process, to protect against judicial interference with

the policy-making role of the legislative branch.

CONCLUSION

For the reasons set forth above, this Court should

grant Indiana’s petition for a writ of certiorari.

Respectfully submitted,

Scott W. Gaylord

Counsel of Record

Professor of Law

Elon University School of Law

201 North Greene Street

Greensboro, NC 27401

Phone: (336) 279-9331

Email: sgaylord@elon.edu

Counsel for Amicus Curiae

November 15, 2018