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 Gnited States

KRISTINA BOX, COMMISSIONER, INDIANA DEPARTMENT

OF HEALTH, ET AL., PETITIONERS,

v.

PLANNED PARENTHOOD OF INDIANA AND KENTUCKY,

INC., ET AL., RESPONDENTS

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF OF THE STATES OF WISCONSIN,

ALABAMA, ARIZONA, ARKANSAS, GEORGIA,

IDAHO, KANSAS, LOUISIANA, MICHIGAN,

MISSOURI, NEBRASKA, OHIO, OKLAHOMA,

SOUTH CAROLINA, SOUTH DAKOTA, TEXAS,

UTAH, WEST VIRGINIA, AND GOVERNOR

PHIL BRYANT OF THE STATE OF

MISSISSIPPI AS AMICI CURIAE

SUPPORTING PETITIONERS

BRAD D. SCHIMEL MISHA TSEYTLIN

Attorney General Solicitor General

Counsel of Record

STATE OF WISCONSIN

DEPARTMENT OF JUSTICE KEVIN M. LEROY

17 West Main Street Deputy Solicitor

Madison, WI 53703 General

tseytlinm@doj.state.wi.us

(608) 267-9323

Attorneys for Amicus Curiae State of Wisconsin

[Additional counsel listed at end]

QUESTIONS PRESENTED

1. Whether a State may mandate the respectful

disposition of the remains of aborted “child{ren]

assuming the human form,” Gonzales v. Carhart, 550

U.S. 124, 160 (2007).

2. Whether a State may ban the invidiously

discriminatory practice of aborting unborn children

solely because of their race, sex, or disability

diagnosis.

‘i

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ....................2-.c0.e0seeeeeceeeeees i

INTEREST OF AMICI CURIAE .....................20.00000+ 1

INTRODUCTION AND SUMMARY OF

SITTIN iiss cis cies idiadadshaticdntediaien ialecainiieattiaidnkdibbdesbivdices 2

REASONS FOR GRANTING THE PETITION ......... 4

I. The States May Require The Respectful

Disposition Of The Remains Of Aborted

TEA, As ESSERE SEIS

Il. The States May Prohibit The Elimination

Of Classes Of Human Beings By I nvidiously

Discriminatory Abortions...............................

ITE cicicncicaeduncevinibrnciiiicsinttesncvncesatnvisiniencsibcintiiets

iil

TABLE OF AUTHORITIES

Cases

14 Penn Plaza LLC v. Pyett,

I Sica cnsiensinetcnaeibodnienbedniedosen 16

Barnes v. Glen Theatre, Inc.,

SS aR CO ee an 10

Bd. of Dirs. of Rotary Int'l v. Rotary Club of

Duarte,

I a ceeenalie 18

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

a on imnssmbacisiicieusse 16

Bob Jones Univ. v. United States,

A re ssinsessunaten 19

Chaplinsky v. New Hampshire,

Sy iid lic cid scinshiih i cnaiceeclinatnainnannation 16

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

Inc.,

I GD iicinnenirncicconensnavicccasnncsouni passim

Coleman v. DeWitt,

282 F.3d 908 (6th Cir. 2002)...............0....cccccceceeees 9

FCC v. Beach Comme'ns, Inc.,

I I id ni sc cctnetdeepemtenseccquonnnts 7, 10

Franklin v. Fitzpatrick,

428 U.S. 901 (1976) (mem.) .....................cseeeeseeeeees 5

iv

Gonzales v. Carhart,

I ee passim

Harris v. Quinn,

ee es le I iciicesicircinnscericcesinnecebnecsitbinioes 17

Heart of Atlanta Motel, Inc. v. United States,

og ER Ree 18

Hodgson v. Minnesota,

Ee CI iccsactsntsntinnkinnteneidsaiecnickansstiinte 14

Janus v. Am. Fed’n of State, Cty., & Mun. Emps.,

Council 31,

es ID ce sscicllicinncosssssidnibiiniimdeptncieanunle 17

Johnson v. California,

ee Se nccdcnthiccntsnciiensdenssetebbisesinasedines 16

Knox v. Serv. Emps. Intl Union, Local 1000,

ee I iiciiesiipcomssesseviitatandetatpiadéonssnass 17

Kovacs v. Cooper,

RRR CSRS poe bn Rane eae 15

McDonald v. City of Chicago,

Be es ch cdis ict nnsidiesicnsnbbcbasdtesenseduecnbes 15

N.Y. State Club Ass’n v. City of New York,

Sts Oe MI ristitecisletnscenctpndnicibinstdoientsncsthicinds 19

Planned Parenthood of Minn. v. Minnesota,

910 F.2d 479 (8th Cir. 1990)..................... 2, 5, 6, 7

Vv

Planned Parenthood of Se. Pa. v. Casey,

ee I I i sccrnctcnsecvcvevetidnecniiuetasenines passim

Roberts v. U.S. Jaycees,

i 2 | RE REE ane Reson Scarce 18

Roe v. Wade,

I I cicussiictsrdinsaiececigansinipaseonieniien 7

Sch. Bd. of Nassau Cty. v. Arline,

I aan catnenacciomeetupeigstoniies 19

Thornburgh v. Am. Coll. of Obstetricians &

Gynecologists,

I cscs ch cs taiesganabsiniapsensdundebevedetini 8

Virginia v. Black,

I esntusieninel 15

Washington v. Glucksberg,

I Sas ccinsineendnsioopnnannmmmasianenases 18

Webster v. Reprod. Health Servs.,

il dibrarstanmnetsnontiwencs EES 5, 8

Whole Woman’s Health v. Hellerstedt,

Be ee le Be I csescsecccanessiascascccossssoness 13, 17

Whole Woman’s Health v. Smith,

896 F.3d 362 (5th Cir. 2018)..................::::eseeeeeeeee 5

Williams- Yulee v. Fla. Bar,

Ne es ae csceccsssaresceamivessoqzsmncsnnines 16

vi

Statutes

ee NE BIEN coccouscivcnecThndivccsabansanioiiemgeadinnpbabadeitinins 8

ne 19

A i iG 9

BO I i 19

BaE, TONG. THE, FB TI vevencsivisesntscnzsssovicccesecscesss l

EE Se Oe I iehetsenepicssvittnsncincinicinsmeianmescaees 1

OE Ne I crccssnisacsesscstienvizcvasenteniiehsimasitanies 9

ee heel OO EA GD csi cccnisessncssccpasssenssveesbige 4,9

BN SRI ee te I obsccicscapscndctcdensentiocmodencdiacavetee 4,9

NE, Ts UIE ick keits science teenhcintncenntthadeniouaes 8

Indiana House Enrolled Act 1337 ............cccccccceeeeees 1

BR, Res Oe i ecisjeeridisarnicavnietecemintadadahicntopnention 1

Sie Wie, Si 0 NE 80 icici isectncitedeies 1

i Hes ee EE detredisentcoesin entedincsddntataciviersivivons 5

Wei GUE, TINGE: I DIOS inecacactsnssccsccnesitetesviiecccconse 1

Deny UE. CD SB BGG BOGE a. ccsccsccrcessicctscccccecsscsice 1

Se CD Oe Be acess sdvnenerctaicseccocedsscstessccenes 1

vil

SE TE CN Se IG OO eseinrescdsccadecdemsondénncsnsnentepenns 9

ns SOU, Ws Ws UP PE sles cseectccacsersccceceosstintisormosnns l

S.D. Codified Laws § 34-23A-64 ...00...........cccceeeseseeeees 1

RI, CIE: SF MINIT inictiiiodapistecincksuivniilestisisdasiioans 18, 19

EG Ss TE SOI epcssnicnsnvenassttnenienscssisnscstebivantesine 19

i IIIT acaseciccdciaxsceleceennctetcsinecsiciebeserearapinas 8

Constitutional Provisions

Be aes SI: SE leita iiaclatvigieenapinnliiotecsarscdsendsanioines 15

at Be ee A 2 en eee 16

Rule

I I 1 wedi han tenn Nias chanel udesediaecisaoumbbcines 4

Other Authorities

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

Legislative Movement Challenging a Core

Ethical Norm of Genetic Testing, 13 PLoS Biol.

I itedinioncinnlaeiptandsticesndadbetaechiddovaicdebigdealicentes 22

Briana S. Nelson Goff et al., Receiving the Initial

Down Syndrome Diagnosis: A Comparison of

Prenatal and Postnatal Parent Group

Experiences, 51 Intellectual & Developmental

I Cl I alg icocecesscnsdcstenicecenceteccnenne 22

vill

David A. Savitz, How Far Can Prenatal

Screening Go in Preventing Birth Defects, 152

Be FN ie I drticineesetcsieticcsnsomeninéncssiounnts 23

Douglas Almond & Lena Edlund, Son-biased sex

ratios in the 2000 United States Census, 105

Proc. of the Nat’! Acad. of Sci. 5861 (2008)........ 23

Fetal Homicide Laws, Nat’! Conf. of State

IID cncadecéneitch lansasubesbpiasntneubantteedabieaitionisadens 8

Frank Newport, Slight Preference for Having Boy

Children Persists in U.S., Gallup (July 5,

Frank Stephens, Testimony Before House

Subcommittee on Labor, Health and Human

Services, and Education (Oct. 25, 2017)............ 24

Gender-Biased Sex Selection, U.N. Population

IIE eiicchvsccisiabindateadetsteriinnicnisieasddbdeanaidsumaidimminsovnsenins 21

Gert de Graaf et al., Estimates of the Live Births,

Natural Losses, and Elective Terminations

with Down Syndrome in the United States,

167A(4) Am. J. Med. Genetics 756 (2015).......... 21

Gregory Kellogg et al., Attitudes of Mothers of

Children with Down Syndrome Towards

Noninvasive Prenatal Testing, 23 J. Genetic

I I I cold ca lcermasehetenline 22

ix

Hannah Korkow-Moradi et al., Common Factors

Contributing to the Adjustment Process of

Mothers of Children Diagnosed with Down

Syndrome: A Qualitative Study, 28 J. Fam.

Psychotherapy 193 (2017) ..................ceeccceeseeeeees 22

Homer, The Iliad, Book XXIV .....................0..0cce0eee00 9

Jamie L. Natoli et al., Prenatal diagnosis of Down

syndrome: a systematic review of termination

rates (1995-2011), 32 Prenat. Diagn. 142

Jason Abrevaya, Are There Missing Girls in the

United States? Evidence from Birth Data, 1(2)

Am. Econ. J.: Applied Econ. 1 (2009)................. 23

John Finnis, Abortion and Health Care Ethics, in

Bioethics: An Anthology (Helga Kuhse et al.

RE RR A ae ae 9

Julian Quinones & Arijeta Lajka, “What kind of

society do you want to live in?”: Inside the

country where Down syndrome is

disappearing, CBS News (Aug. 14, 2017).......... 19

Mara Hvistendahl, Unnatural Selection:

Choosing Boys over Girls, and the

Consequences of a World Full of Men (2011)..... 20

Mara Hvistendahl, Where Have All the Girls

Gone?, Foreign Policy (June 27, 2011)............... 21

x

Nat'l Down Syndrome Soc’y, Understanding a

Diagnosis of Down Syndrome....................-..0.+++ 25

Nicholas Eberstadt, The Global War Against

Baby Girls, The New Atlantis (2011)................. 20

Patrick Lee, Abortion & Unborn Human Life (2d

OE ct chacahcactcedmnateaisarelevetinabendaiaeaetedinnaehines 9

Rachél V. van Schendel et al., What Do Parents of

Children with Down Syndrome Think about

Non-Invasive Prenatal Testing (NIPT)?, 26 J.

Genetic Counseling 522 (2017)..................... 22, 25

Sam Roberts, U.S. Births Hint at Bias for Boys in

Some Asians, N.Y. Times (June 14, 2009)......... 23

Sex Imbalances at Birth: Current Trends,

Consequences, and Policy Implications, U.N.

Population Fund Asia & Pacific Regional

SY III BIE ss. ssshicenigttcentsantunatncpenagnlicnstosnsente 20

Simon Denyer & Annie Gowen, Too Many Men:

China and India Battle with the Consequences

of Gender Imbalance, The Washington Post

irs SIE TI nscinndhassndgnicntedhadetaupeaeiecdecsdienisidndines 21

Sital Kalantry, How to Fix India’s Sex-Selection

Problem, N.Y. Times (Jul. 27, 2017) .................. 20

ALESSI OO MOT SLED 9

William Blackstone, Commentaries ...................0..00+- 9

INTEREST OF AMICI CURIAE’

Amici are the States of Wisconsin, Alabama,

Arizona, Arkansas, Georgia, Idaho, Kansas,

Louisiana, Michigan, Missouri, Nebraska, Ohio,

Oklahoma, South Carolina, South Dakota, Texas,

Utah, West Virginia, and Governor Phil Bryant of the

State of Mississippi (hereinafter “the States”). The

States have the solemn duty and sovereign right to

protect the dignity of all human beings within their

borders. Through House Enrolled Act 1337 (“HEA

1337” or “the Act”), Indiana forwarded this and other

important sovereign interests by requiring the

respectful disposition of the remains of unborn

children and _ prohibiting the discriminatory

elimination of classes of human beings based upon

race, gender, or disability. App. 13la—36a. Many

“[ojther states have followed Indiana’s lead” by

enacting laws similar to HEA 1337. App. 3la

(Manion, J., concurring in the judgment in part,

dissenting in part); e.g., Ariz. Rev. Stat. § 13-3603.02;

Ark. Code § 20-16-1904; Kan. Stat. § 65-6726; La.

Rev. Stat. § 40:1061.1.2; N.C. Gen. Stat. § 90-21.121;

N.D. Cent. Code § 14-02.1-04.1; Ohio Rev. Code

§ 2919.10; Okla. Stat. tit. 63, § 1-731.2(B); S.D.

Codified Laws § 34-23A-64.

* Counsel of record received timely notice of the States’ intent

to file this amicus brief at least ten days before the due date.

Sup. Ct. R. 37.2(a). Pursuant to Supreme Court Rule 37.4, the

consent of the parties is not required for the States to file this

brief.

2

INTRODUCTION AND SUMMARY OF

ARGUMENT

The Seventh Circuit's decision below contains two

holdings that, especially when taken together, exhibit

an unprecedented, unlawful! hostility to the States’

authority to honor human life and dignity.

The Seventh Circuit first held that Indiana had no

constitutional authority to enact the Respectful-

Disposition Provision, which requires providers to

dispose respectfully of aborted unborn children,

rather than dumping them as medical waste (as is

Respondents’ practice). Disregarding this Court’s

explanation in City of Akron v. Akron Center for

Reproductive Health, Inc., 462 U.S. 416, 452 & n.45

(1983), overruled on other grounds by Planned

Parenthood of Southeastern Pennsylvania v. Casey,

505 U.S. 833 (1992), and in direct conflict with the

Eighth Circuit’s holding in Planned Parenthood of

Minnesota v. Minnesota, 910 F.2d 479, 487-88 (8th

Cir. 1990), the Seventh Circuit concluded that

Indiana’s “interest in requiring ... dispos[al] of

aborted fetuses in the same manner as human

remains is not legitimate’ because this Court has held

that those unborn children are not “persons” under

the Fourteenth Amendment. App. 15a—16a

(emphasis added). The Seventh Circuit's

unprecedented holding that unborn children are so

unworthy of dignity that it is not even “legitimate” for

the State to require that their remains not be thrown

away like medical waste warrants this Court’s review.

3

The Seventh Circuit also invalidated Indiana's

Antidiscrimination Provision, which prohibits the

elimination of classes of human beings through

discriminatory abortion based upon race, gender, and

disability because, in the Seventh Circuit's view,

Casey foreclosed any prohibition on pre-viability

abortions, no matter the interest being sought, no

matter how carefully tailored the law. But the

plaintiffs in Casey specifically declined to challenge

Pennsylvania’s discriminatory-abortion prohibition,

and this Court, accordingly, did not rule upon that

prohibition. See Br. for Respondents, Planned

Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992)

(Nos. 91-744, 91-902), 1992 WL 12006423, at *4.

Nevertheless, the Seventh Circuit concluded that

Casey controlled the outcome in this case because, in

the Seventh Circuit’s view, Casey enshrined the right

to pre-viability abortion as “categorical.” But this

Court has never declared any right to be “categorical,”

and Casey itself upheld one type of pre-viability

abortion prohibition. Under a proper understanding

of Casey's undue-burden test, the Antidiscrimination

Provision furthers the State’s compelling interest in

prohibiting the discriminatory elimination of classes

of human beings by race, gender, or disability. This

issue is ripe for this Court’s review, as Judge

Easterbrook, joined by Judges Sykes, Barrett and

Brennan, explained below. App. 123a.

This Court should grant the Petition.

4

REASONS FOR GRANTING THE PETITION

I. The States May Require The Respectful

Disposition Of The Remains Of Aborted

Unborn Children

Indiana’s Respectful-Disposition Provision

requires an abortion clinic to “inter[ | or cremate| |”

the remains of any “aborted fetus” in its “possession.”

App. 136a. This ensures that the remains of unborn

children receive the same dignified disposition as the

remains of other human beings. Compare App. 136a,

with Ind. Code §§ 23-14-54-1, -4. The Seventh Circuit

invalidated Indiana’s Provision, taking the

remarkable position that “the State’s interest in

requiring ... disposition] of aborted fetuses in the

same manner as human remains is not legitimate.”

App. 16a (emphasis added). Since that decision

violates this Court’s explanation in Akron and creates

a division with the Eighth Circuit, this Court’s review

is warranted. See Sup. Ct. R. 10(a), (c).

A. In Akron, this Court considered the

constitutionality of Akron’s _ fetal-disposition

ordinance, holding that the _ statute was

unconstitutionally vague because of the statute’s

particular wording. 462 U.S. at 451-52. In

articulating the narrow limits of this holding,

however, this Court specifically explained that a

State “remains free, of course, to enact [|] carefully

drawn regulations that further its legitimate interest

in proper disposal of fetal remains.” 462 U.S. at 452

5

n.45 (emphasis added). Most relevant here, this

Court explained that a State may enact a statute that

“preclude[s] the mindless dumping of aborted fetuses

on garbage piles.” Jd. at 451 & n.44 (citing Franklin

v. Fitzpatrick, 428 U.S. 901 (1976) (mem.)).

Consistent with this Court’s guidance in Akron,

the Eighth Circuit in Planned Parenthood of

Minnesota, 910 F.2d 479, upheld Minnesota’s fetal-

disposition statute, which ensured “the dignified and

sanitary disposition of the remains of aborted | |

human fetuses” by requiring all “medical facilities” to

“provide for the disposal of the[se] remains” in their

possession “by cremation, internment by burial, or in

a manner directed by the commissioner of health.” /d.

at 481 n.2, 483 (quoting Minn. Stat. § 145.1621,

subds. 1, 4); compare App. 136a (Indiana’s Respectful-

Disposition Provision). The Eighth Circuit held that

the statute furthered the “legitimate interest in

proper disposal of fetal remains” recognized by this

Court in Akron. 910 F.2d at 482 (quoting Akron, 462

U.S. at 452 n.45). Since, as this Court has held, “a

state may make a value judgment favoring childbirth

over abortion,” it must for the same reason be allowed

to “conclu[de] that fetal remains are the equivalent of

[born] human remains.” /d. at 487 (citing Webster v.

Reprod. Health Servs., 492 U.S. 490, 505-06 (1989));

accord Whole Woman’s Health v. Smith, 896 F.3d 362,

376 (5th Cir. 2018) (Ho, J., concurring) (“[Njothing in

the text or original understanding of the Constitution

prevents a state from requiring the proper burial of

fetal remains.”).

6

B. In the decision below, a divided panel majority

invalidated Indiana’s Respectful-Disposition

Provision. That holding creates a direct split of

authority with the Eighth Circuit’s decision in

Planned Parenthood of Minnesota, ignores this

Court's explanation of the legitimate interests

underlying respectful-disposition laws from Akron,

and makes numerous other legal errors.

The divided panel’s decision below conflicts

directly with the Eighth Circuit's upholding of a

materially indistinguishable respectful-disposition

provision. Indiana’s Provision requires that an

abortion clinic “inter|] or cremate[]” any “aborted

fetus” in its “possession,” App. 136a, just like

Minnesota’s law that the Eighth Circuit upheld

against an identical legal challenge, see Planned

Parenthood of Minn., 910 F.2d at 481 n.2. Applying

rational-basis review, as all conceded was proper,

App. 14a—15a, the panel majority nevertheless held

that Indiana’s interest in showing respect to the

remains of unborn children was “not legitimate”

because this Court “has concluded that the word

‘person, as used in the Fourteenth Amendment, does

not include the unborn,” App. 15a—17a (citation

omitted), and that, even if Indiana’s interest were

legitimate, the law failed to pursue it through

“rationally related” means, App. 18a—19a. That

conclusion “create[s] a conflict with” the Eighth

Circuit's decision in Planned Parenthood of

Minnesota, App. 124a (Easterbrook, J., dissenting

from the denial of rehearing en banc), given that the

7

Eighth Circuit held that fetal-disposition laws further

legitimate purposes, Planned Parenthood of Minn.,

910 F.2d at 487-88; supra p. 5, and any one legitimate

purpose is sufficient to sustain a law on rational-basis

review, FCC v. Beach Commce’'ns, Inc., 508 U.S. 307,

315 (1993). Simply put, the Seventh Circuit split with

the Eighth Circuit in a case that is “substantially

similar in every material respect.” App. 39a (Manion,

J., concurring in the judgment in part, dissenting in

part).

The panel majority's decision invalidating the

Respectful-Disposition Provision similarly conflicts

with this Court’s explanation that a State “remains

free, of course, to enact [ | carefully drawn regulations

that further its legitimate interest in proper disposal

of fetal remains.” Akron, 462 U.S. at 452 n.45

(emphasis added). The panel majority did not even

discuss Akron, relegating it to a “see also” cite.

App. 17a. Instead, the panel majority claimed that its

holding followed from this Court’s decision in Roe,

which had concluded that unborn children are not

“persons” under the Fourteenth Amendment's Due

Process Clause. App. 15a—16a (citing Roe v. Wade,

410 U.S. 113, 158-59 (1973)). From Roe, the panel

majority derived the conclusion that Indiana’s

requirement that the remains of unborn children be

disposed of in the same manner as the remains of

other babies is “not legitimate.” App. 15a—l16a. But

Roe predated Akron and, in any event, its holding on

this score is a “red herring.” App. 41a (Manion, J.,

concurring in the judgment in part, dissenting in

8

part). The question of who counts as a “person” under

the Fourteenth Amendment is analytically distinct

from the question of “whether the fetus is a ‘human

being” in a scientific, moral, or philosophical sense.

Thornburgh v. Am. Coll. of Obstetricians &

Gynecologists, 476 U.S. 747, 792 (1986) (White, J.,

dissenting), overruled in part by Casey, 505 U.S. 833.

Nothing prevents Indiana from reaching its own

considered judgments on these questions. App. 4la—

42a (Manion, J., concurring in the judgment in part,

dissenting in part). Indeed, the sovereign authority

of the States to make such judgments is precisely the

reason why, under this Court’s settled precedent,

States may “make a value judgment favoring

childbirth over abortion.” Webster, 492 U.S. at 505—

06 (citation omitted).

Far from being irrational, respect for unborn

children as human beings is a well-recognized basis

for legislative action. Accord Gonzales, 550 U.S. at

160 (“the fast-developing brain of her unborn child, a

child assuming the human form”). The Federal

Government and 38 States rely on that same

judgment as the core justification for their fetal-

homicide laws. See 18 U.S.C. § 1841; Ind. Code § 35-

50-2-16; Wis. Stat. § 940.01(1)(b); Fetal Homicide

Laws, Natl Conf. of State Legislatures,

https://perma.cc/A7D3-SF3V (all links last visited

Nov. 7, 2018). These laws have survived legal

challenge time and again, App. 41a, with courts often

rejecting arguments practically identical to the

Seventh Circuit's wrongheaded reliance on Roe, see,

9

e.g., Coleman v. DeWitt, 282 F.3d 908, 911-13 (6th

Cir. 2002). Additionally, the Federal Government

bans the commercial sale of fetal tissue, 42 U.S.C.

§ 289g—2, and many States ban experimentation on

fetal remains, e.g., Ind. Code § 16-34-2-6; Ohio Rev.

Code § 2919.14, all in recognition of the unborn child’s

humanity. And the “majority” of biologists define

“human beings” to include the unborn, Patrick Lee,

Abortion & Unborn Human Life 71—107 (2d ed. 2010),

as do many eminent bioethicists, e.g., John Finnis,

Abortion and Health Care Ethics, in Bioethics: An

Anthology 15 (Helga Kuhse et al. eds., 3d ed. 2016).

The Seventh Circuit's interference with the State’s

provision for the respectful disposition of human

remains is also contrary to history. Society has long

practiced the proper disposition of human remains as

a sign of respect. See, e.g., Homer, The Iliad, Book

XXIV (“And Priam answered [Achilles], ... ‘Nine

days, therefore, will we mourn Hector in my house; on

the tenth day we will bury him ... ; on the eleventh

we will build a mound over his ashes ....”).

Performing a proper disposition has long been a duty

owed to the deceased. See, e.g., Sophocles, Antigone,

Scene I, Line 413 (“Nevertheless, there are honors due

all the dead.”); 2 William Blackstone, Commentaries,

*508 (“[The executor] must bury the deceased in a

manner suitable to the estate which he leaves behind

him.”). A State enshrining this duty in the law, see,

e.g., Ind. Code §§ 23-14-54-1, -4, as an exercise of its

police power, furthers the rational purpose of showing

this type of respect, see Barnes v. Glen Theatre, Inc.,

10

501 U.S. 560, 569 (1991) (“The traditional police

power of the States is defined as the authority to

provide for the public health, safety, and morals, and

we have upheld such a basis for legislation.”); accord

Gonzales, 550 U.S. at 137, 158 (banning of the “intact

D&E” abortion procedure is “justiflied]” because it

“implicates additional ethical and moral concerns’).

As this Court recognized in Akron, States have a

“legitimate interest in proper disposal of fetal

remains,” 462 U.S. at 452 n.45, since they have an

interest in the proper disposal of all human remains.

Finally, even if the Constitution somehow

prohibited the States from requiring the treatment of

unborn children as human beings for purposes of the

respectful disposition of remains, this would still not

render the Respectful-Disposition Provision unlawful

under the rational-basis standard that all parties

agree applies here. See Beach Commce’ns, 508 U.S. at

315 (“[I]jt is entirely irrelevant for constitutional

purposes whether the conceived reason for the

challenged [law] actually motivated the legislature.”).

As Judge Easterbrook explained below, the States’

“regulatory authority” extends well beyond human

beings. App. 123a. States have, for example, ample

authority to enact “animal-welfare statutes,”

including statutes that “prescribe how animals’

remains must be handled.” App. 123a; accord

Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., No.

17-71 (U.S. argued Oct. 1, 2018) (considering federal

protections for the “dusky gopher frog”). In Judge

Easterbrook’s words, “[t]he panel has held invalid a

11

statute that would be sustained had it concerned the

remains of cats or gerbils.” App. 123a. This Court

should grant review and correct this horrific

consequence of the Seventh Circuit's decision.

Il. The States May Prohibit The Elimination Of

Classes Of Human Beings By Invidiously

Discriminatory Abortions

Indiana’s Antidiscrimination Provision prohibits

the “eugenic” practice of doctors performing abortions

sought solely because of the race, sex, or disability

status of the unborn child. App. 12la (Easterbrook,

J., dissenting from the denial of rehearing en banc);

App. 132a—33a. The Seventh Circuit invalidated this

law by purporting to find within this Court’s case law

a “categorical” right to pre-viability abortion, a right

that a State cannot infringe no matter how powerful

its interest, App. 10a (emphasis added), even if this

Court has never confronted a case dealing with that

interest, App. 12la—22a (Easterbrook, J., dissenting

from the denial of rehearing en banc). That

conclusion is legally wrong and would perversely

place the unenumerated right to _ pre-viability

abortion above even core protections of the Bill of

Rights.

A. Whether a State’s anti-discrimination interests

justify the prohibition of discriminatory abortions is

an issue that this Court has never addressed. In

Casey, the challengers “sought declaratory and

injunctive relief against a wide array of

12

[Pennsylvania's] 1988 and _ 1989” = abortion

regulations, but did not seek to block Pennsylvania’s

prohibition of gender-discriminatory abortions, which

Pennsylvania enacted during the same period. See

Br. for Respondents, Casey, 505 U.S. 833, 1992 WL

12006423, at *4.

Failing to recognize this as an issue of first

impression, the Seventh Circuit concluded that

certain language in Casey enshrined the pre-viability

abortion right as “categorical,” preemptively

foreclosing any anti-eugenics prohibitions on pre-

viability abortions. App.10a. In reaching this

conclusion, the Seventh Circuit relied on a single

passage from Casey: “a State may not prohibit any

woman from making the ultimate decision to

terminate her pregnancy before viability.” App. 10a

(quoting Casey, 505 U.S. at 879 (plurality op.)). The

Seventh Circuit read this passage as mandating the

conclusion that every effort by the State to prohibit

any pre-viability abortion is automatically

unconstitutional, without any need to even consider

either the weight of the State’s proffered interest or

how narrowly tailored the law is to achieving that

interest. App. 13a—14a.

The Seventh Circuit's interpretation of this

passage from Casey is_ incorrect. As Judge

Easterbrook explained below, the passage has no

bearing on the Antidiscrimination Provision because

Casey “did not consider the validity of an anti-

eugenics law.” App. 12la. “Judicial opinions are not

13

statutes; they resolve only the situations presented

for decision.” App. 12la. The passage is best

understood as limited to only “the State’s interests”

actually urged before this Court in Casey—the State’s

general interest in unborn life and the health of the

mother. See Casey, 505 U.S. at 846; Whole Woman's

Health v. Hellerstedt, 136 S. Ct. 2292, 2310 (2016).

And since “[u]sing abortion to promote eugenic goals

is morally and prudentially debatable on grounds

different from those that underlay statutes Casey

considered,” the lower courts “ought not impute” a

decision on that question to this Court. App. 122a

(Easterbrook, J., dissenting from the denial of

rehearing en banc). In short, “/njone of th{is] Court's

abortion decisions holds that states are powerless to

prevent abortions designed to choose the sex, race,

and other attributes of children.” App. 122a

(Easterbrook, J., dissenting from the denial of

rehearing en banc) (emphasis added).

No other passages in Casey support the Seventh

Circuit’s conclusion. So, for example, while Judge

Manion believed that the label “undue burden”

suggests a “pure effects test,” blind to any compelling

interests of the State, App. 26a, this label was a

“shorthand” for a traditional means-ends test—albeit

one specifically fashioned for the abortion context.

Casey, 505 U.S at 876-77 (plurality op.). Thus, the

test calls for weighing the State’s “interest[s]” against

the “burdens on the right to decide whether to

terminate a pregnancy.” /d. at 876.

14

Casey itself rejects the extreme “categorical”

position that the Seventh Circuit ascribes to it. Casey

held that the State could prohibit some pre-viability

abortions, namely, those of a minor when her parents

do not consent and a court finds both that the abortion

is not in the minor’s best interests and that the minor

is not “mature and capable of giving informed

consent.” 505 U.S. at 899 (plurality op.). That

prohibition is justified not by the State’s interest in

the life of the unborn child or the health of the mother,

but by its “strong and legitimate interest in the

welfare of its young citizens.” Hodgson v. Minnesota,

497 U.S. 417, 444 (1990). Had Casey elevated the

right to a pre-viability abortion to “categorical” status,

as the Seventh Circuit believed, this restriction would

have fallen. Put another way, since this Court in

Casey concluded that the State’s interest in

youngsters’ welfare is sufficiently powerful to prohibit

some pre-viability abortions, it follows that courts

must consider the possibility that other interests

might justify the prohibition of other such abortions.

The Seventh Circuit also misunderstood Casey's

broader place within the development of this Court’s

abortion jurisprudence. Caseys undue-burden

standard replaced the post-Roe strict-scrutiny test,

which had developed as part of Roe’s trimester

framework, to make it easier for States to regulate

abortions. See Casey, 505 U.S. at 871-73 (plurality

op.); e.g., Akron, 462 U.S. at 427, 434. The Casey

plurality found this shift justified because Roe had

“undervalue|d] the State’s interest.” Casey, 505 U.S.

15

at 873 (plurality op.). To make the undue-burden test

“more difficult to satisfy” than Roe’s “strict-scrutiny

test,” as the Seventh Circuit did in this case, would be

an “absurd result[].” App. 24a (Manion, J.,

concurring in the judgment in part, dissenting in

part).

More generally, this Court has never declared any

right in the Constitution to be absolute, so the

Seventh Circuit’s enshrining of the right to a pre-

viability abortion as “categorical” cannot be correct.

Even assuming that pre-viability abortion is a right

on par with core constitutional rights like free speech

or equal protection—a doubtful proposition—“[n]o

fundamental right . . . is absolute.” McDonald v. City

of Chicago, 561 U.S. 742, 802 (2010) (Scalia, J.,

concurring). “[E]ven the fundamental rights of the

Bill of Rights are not absolute.” Kovacs v. Cooper, 336

U.S. 77, 85 (1949); Virginia v. Black, 538 U.S. 343,

358 (2003). Accordingly, “the strength of the

individual’s liberty interests and the State's

regulatory interests must always be assessed and

compared” when evaluating a law's constitutionality.

McDonald, 561 U.S. at 879 (Stevens, J., dissenting)

(emphasis added). For example, the First

Amendment provides in categorical terms that

“Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech,

or of the press,” U.S. Const. amend. I, but it recognizes

“certain well-defined and narrowly limited classes of

speech, the prevention and punishment of which have

16

never been thought to raise any Constitutional

problem,” Chaplinsky v. New Hampshire, 315 U.S.

568, 571-72 (1942). The First Amendment also

permits the States to prohibit even fully protected

political speech where it satisfies strict scrutiny. See,

e.g., Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656,

1665—66 (2015). Moving beyond the Bill of Rights, the

Fourteenth Amendment’s Equal Protection Clause

provides, without qualification, that “[n]o State shall

... deny to any person within its jurisdiction the

equal protection of the laws.” U.S. Const. amend.

XIV, § 1. Yet, as this Court has explained, a State

may even use racial classifications where it satisfies

strict scrutiny; for example, to prevent prison riots,

see Johnson v. California, 543 U.S. 499, 512-14

(2005), or to comply with the Voting Rights Act, see

Bethune-Hill v. Virginia State Bd. of Elections, 137

S. Ct. 788, 800-02 (2017). It is unthinkable that

Casey endowed the unenumerated right to pre-

viability abortion with greater status than

enumerated rights like the freedom of speech or the

freedom from state-sponsored racial classification.

While the Seventh Circuit’s interpretation of

Casey wrongly “impute[s] to [this Court] decisions [it

has] not made about problems [it has] not faced,”

App. 122a (Easterbrook, J., dissenting from the

denial of rehearing en banc), if Casey's “broad dicta”

is causing the lower courts to err, that is reason

enough for review here, see 14 Penn Plaza LLC v.

Pyett, 556 U.S. 247, 265 (2009). It is this Court’s role

to reevaluate periodically the soundness of the

17

statements in its decisions, Knox v. Serv. Emp. Intl

Union, Local 1000, 567 U.S. 298, 311 (2012) (“[Abood]

is an anomaly.”), and, if it finds that precedent flawed,

Harris v. Quinn, 134 §S. Ct. 2618, 2638 (2014)

(“Abood|| [has] questionable foundations”), to

reconsider it, Janus v. Am. Fed'n of State, Cty., &

Mun. Emps., Council 31, 138 8. Ct. 2448, 2460 (2018)

(“Abood is | | overruled.”).

B. The correct understanding of Casey's undue-

burden standard is that it balances the burdens

imposed by the law, on the one hand, with the gravity

of the state interest that the law furthers, on the

other. The exactness required in this balancing is a

sliding-scale level of inquiry—ranging from rigorous

to permissive, based upon how substantial the law’s

level of interference with the right to abortion, if any.

See Gonzales, 550 U.S. at 146. Put another way,

“Casey's undue-burden test [is a] right-specific test on

the spectrum between rational-basis and _ sstrict-

scrutiny review.” Whole Woman’s Health, 136 S. Ct.

at 2327 (Thomas, J., dissenting). It is a means-end

balancing test of the type this Court applies in

countless other contexts. So, when reviewing an

abortion law under the undue-burden standard—no

matter how rigorously calibrated—a court must

consider both “the burdens a law imposes on abortion

access together with the benefits those laws confer.”

Whole Woman’s Health, 136 S. Ct. at 2309.

Assuming, arguendo, that the most stringent form

of scrutiny applies to Indiana’s Antidiscrimination

18

Provision, the Provision satisfies such scrutiny. See

App. 21a (Manion, J., concurring in the judgment in

part, dissenting in part). Antidiscrimination

Provisions like Indiana’s seek to prohibit an

invidiously discriminatory practice that violates the

Nation’s most core commitments: eliminating the

“targeting” of individuals for disfavored treatment

“because of [their] immutable human characteristics”

like race, sex, or disability. App. 23a (Manion, J.,

concurring in the judgment in part, dissenting in

part). Such laws further the most compelling of

government interests, and “it is hard to imagine

legislation more narrowly tailored to promote this

interest.” App. 35a (Manion, J., concurring in the

judgment in part, dissenting in part); see Washington

v. Glucksberg, 521 U.S. 702, 728-29 (1997).

That States have a compelling interest in stopping

such discriminatory practices follows from the logic

underlying this country’s legal protections against

private discrimination. This Court has held, for

example, that States have a “compelling interest in

eliminating discrimination against women,” even

where antidiscrimination laws conflict with First

Amendment associational values. See Bd. of Dirs. of

Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537,

549 (1987); Roberts v. U.S. Jaycees, 468 U.S. 609, 623

(1984); see, e.g., Wis. Stat. § 106.52. Similarly, both

Congress and the States may prohibit the “moral and

social wrong” of discrimination by private parties in

public accommodations. See Heart of Atlanta Motel,

Inc. v. United States, 379 U.S. 241, 257 (1964); e.g.,

19

Wis. Stat. § 106.52, and in other areas, see Bob Jones

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

both Congress and the States have legislated to forbid

discrimination against disabled individuals,

including by enacting laws such as the Americans

With Disabilities Act, 42 U.S.C. § 12132, and the

Rehabilitation Act of 1973, 29 U.S.C. § 794. See Sch.

Bd. of Nassau Cty. v. Arline, 480 U.S. 273, 284 (1987);

e.g., Wis. Stat. § 111.321. Given that stopping private

discrimination based upon’ gender, race, or

disability—in areas as_ diverse as_ public

accommodations, employment, and organization

membership—is a “compelling” state interest, N.Y.

State Club Ass’n v. City of New York, 487 U.S. 1, 14

n.5 (1988), the state interest in stopping the

elimination of classes of people based on these same

characteristics is even more compelling. Surely a

State that has the constitutional authority to protect

members of the Down syndrome community from

being discriminated against in employment or public

accommodations can protect that same community

from wholesale elimination by eugenic practices.

The evil that the Antidiscrimination Provision

seeks to combat is quite serious. Iceland is a canary

in the coal mine. “[T]he vast majority of women [in

Iceland|—close to 100 percent—who receive[] a

positive test for Down syndrome terminate| | their

pregnancy.” Julian Quinones & Arijeta Lajka, “What

kind of society do you want to live in?”: Inside the

country where Down syndrome is disappearing, CBS

News (Aug. 14, 2017), https://perma.cc/A5P4-8KBX.

20

Nor is Iceland alone, as the “estimated termination

rate” of unborn children with Down syndrome is 98

percent in Denmark. Jd. Such countries “are now

celebrating the ‘eradication’ of Down syndrome” by

eliminating virtually all unborn children diagnosed

with this condition in utero. App. 33a (Manion, J.,

concurring in the judgment in part, dissenting in

part).

In Asia, “widespread sex-selective abortion” has

caused “disastrous effects.” App. 32a n.5 (Manion, J.,

concurring in the judgment in part, dissenting in

part). Some experts have concluded that this

continent has 100 to 160 million “missing” women.

See Mara Hvistendahl, Unnatural Selection:

Choosing Boys over Girls, and the Consequences of a

World Full of Men 5—12 (2011). In India, “[o]ver the

course of several decades, 300,000 to 700,000 female

fetuses were selectively aborted [] each year.” Sital

Kalantry, How to Fix India’s Sex-Selection Problem,

N.Y. Times (Jul. 27, 2017), https://perma.cc/B4UN-

UDX3; accord Nicholas Eberstadt, The Global War

Against Baby Girls, The New Atlantis (2011),

https://perma.cc/ZCM9-MU3K (documenting similar

phenomenon in China, South Korea, and other

countries). This male favoring “is a symptom of

pervasive social, cultural, political and economic

injustices against women, and a manifest violation of

women’s human rights.” Sex Imbalances at Birth:

Current Trends, Consequences, and Policy

Implications, U.N. Population Fund Asia & Pacific

Regional Office (Aug. 2012), https://perma.cc/Y6CB-

21

GCK2; Gender-Biased Sex Selection, U.N. Population

Fund, https://perma.cc/KCT4-6T23?type=image. And

it causes social disruption as the generations mature.

“{FJeminists in Asia worry that as women become

scarce, they will be pressured into taking on domestic

roles and becoming housewives and mothers rather

than scientists and entrepreneurs.” Mara

Hvistendahl, Where Have All the Girls Gone?, Foreign

Policy (June 27, 2011), https://perma.cc/2735-FQD6;

accord Simon Denyer & Annie Gowen, Too Many

Men, The Washington Post (Apr. 24, 2018),

https://perma.cc/2U6J-WC8G.

The United States is not immune from these evil

practices; indeed, the casus belli of this lawsuit is

Respondents’ unabashed desire to assist in such

discrimination. E.g., App. 5a. According to the best

available estimates, 50 percent or more of pregnant

women in the United States who learn that their child

will be born with Down syndrome eliminate that child

by abortion. Dist. Ct. Dkt. 54-2:13; see also, e.g.,

Jamie L. Natoli et al., Prenatal diagnosis of Down

syndrome: a systematic review of termination rates

(1995-2011), 32 Prenat. Diagn. 142, 142 (2012)

(between 61% and 93%), https://perma.cc/4JDV-

R69B. This practice has reduced the Down syndrome

community by 30 percent, Gert de Graaf et al.,

Estimates of the Live Births, Natural Losses, and

Elective Terminations with Down Syndrome in the

United States, 167A(4) Am. J. Medical Genetics 756—

67 (2015), https://perma.cc/A9VT-33V5, and the loss

may be expected to grow as the availability of early

22

prenatal screening increases, see Rachél V. van

Schendel et al., What Do Parents of Children with

Down Syndrome Think about Non-Invasive Prenatal

Testing (NIPT)?, 26 J. Genetic Counseling 522 (2017),

https://perma.cc/D8YE-WQYU. This discriminatory

practice is partly due, no doubt, to the pressure that

some women experience from doctors to abort unborn

children with Down syndrome. Dist. Ct. Dkt. 54-1:6;

see, e.g., Hannah Korkow-Moradi et al., Common

Factors Contributing to the Adjustment Process of

Mothers of Children Diagnosed with Down Syndrome:

A Qualitative Study, 28 J. Fam. Psychotherapy 193,

197 (2017); Briana S. Nelson Goff et al., Receiving the

Initial Down Syndrome Diagnosis: A Comparison of

Prenatal and Postnatal Parent Group Experiences, 51

Intellectual & Developmental Disabilities 446, 455

(2013). For example, mothers of children with Down

syndrome “commonly express|[]” that the medical

information they receive in prenatal counseling is

“biased or overly negative.” Gregory Kellogg et al.,

Attitudes of Mothers of Children with Down Syndrome

Towards Noninvasive Prenatal Testing, 23 J. Genetic

Counseling 805, 810 (2014), https://perma.cc/TG3Z-

8387. This bias takes the form of the “subtle shading

of information by counselors against persons with

Down syndrome,” Arthur L. Caplan, Chloe’s Law: A

Powerful Legislative Movement Challenging a Core

Ethical Norm of Genetic Testing, 13 PLoS Biol. 1, 2

(2015), https://perma.cc/A92V-CYGQ, or even open

advocacy for the “eradication” of Down syndrome via

“widespread acceptance of selective termination” of

unborn children with the condition, David A. Savitz,

23

How Far Can Prenatal Screening Go in Preventing

Birth Defects, 152 J. Pediatrics 3, 3 (2008),

https://perma.cc/HP2Q-JNKH (also calling this “a

desirable and attainable goal”).

Sex-selective abortions are common in some

communities in the United States. See Douglas

Almond & Lena Edlund, Son-biased sex ratios in the

2000 United States Census, 105 Proc. of the Nat'l

Acad. of Sci. 5861, 5861 (2008), https://

perma.cc/F9X5-KWX6; Jason Abrevaya, Are There

Missing Girls in the United States? Evidence from

Birth Data, 1(2) Am. Econ. J.: Applied Econ. 1—34

(2009), https://perma.cc/KXJ9-2XWS8. A recent

Gallup survey confirms that the longstanding

“tendency for American adults to express overall

preferences for a boy over a girl” persists today.

Frank Newport, Slight Preference for Having Boy

Children Persists in U.S., Gallup (July 5, 2018),

https://perma.cc/36SP-AYW2 (noting that this bias

towards boys is greater for “Americans aged 18 to

29”). As reported in The New York Times, a physician

described her experience with this bias in patients

that are pregnant with their third child: “If it’s a boy,

they keep it. If it’s a girl, they'll abort.” Sam Roberts,

U.S. Births Hint at Bias for Boys in Some Asians, N.Y.

Times (June 14, 2009), https://perma.cc/5RL8-3D8D.

As with discriminatory abortions based on disability

status, the negative effects of sex-selective abortions

may only be expected to grow in the future: “[a]s the

ability to ... create ‘designer babies’ with specified

characteristics [like sex] becomes more of a reality,”

24

the bias toward children of a certain sex could even

more directly affect fertility patterns. Newport,

supra.

The State combating this invidious discrimination

by enacting its nondiscrimination interests into law

sends a powerful signal to members of minority

communities that it is “inhumane” to terminate them,

thereby affirming the “profound respect” that the

State holds for all people. See Gonzales, 550 U.S. at

157 (citation omitted). As Frank Stephens, a

disability-rights activist who himself has Down

syndrome, powerfully testified before Congress, “a

notion is being sold that maybe we don’t need to

continue to do research concerning Down syndrome.

Why? Because there are pre-natal screens that will

identify Down syndrome in the womb, and we can just

terminate those pregnancies.” Frank Stephens,

Testimony Before House Subcommittee on Labor,

Health and Human Services, and Education 1 (Oct.

25, 2017), https://perma.cc/S73U-GYKS. Recent

efforts to “eliminate” Down syndrome are nothing

more than “people pushing [a] particular ‘final

solution’ [ ] that people [with Down syndrome] should

not exist. They are saying that [people with Down

syndrome] have too little value to exist.” Id. By

enacting laws like Indiana’s Antidiscrimination

Provision, the State affirms Mr. Stephens’ poignant

claim that those like him are equal human beings. /d.

These laws thus advance the vital cause of

demonstrating to society that a// human beings—

25

including women, racial minorities, and those with

disabilities—have lives “worth living.”

Finally, that Indiana’s’ Antidiscrimination

Provision includes pre-viability abortions does not

affect its constitutionality because the State’s

interests do not correspond to the unborn child’s stage

of development. In the traditional abortion-

regulation context, this Court has held that the

State’s interest in protecting an unborn child’s life is

“not strong enough” to prohibit a_pre-viability

abortion. See Casey, 505 U.S. at 846, 860. The logic

is that the more developed the unborn child, the

stronger the State’s interest in keeping that child

alive. Jd. This reasoning has no applicability where

the strength of the State’s interests does not

correspond to the unborn child’s_ stage of

development. The State’s interest is the prevention of

the discriminatory elimination of classes of human

beings; it makes no difference from the point of view

of that interest if unborn children with Down

syndrome are systematically eliminated at 10 weeks

or 25 weeks, if the result is the same. Genetic

screening for Down syndrome now regularly occurs

“as early as 10 weeks” into the pregnancy, well before

the unborn child is viable. See Nat'l Down Syndrome

Soc’y, Understanding a Diagnosis of Down Syndrome,

https://perma.cc/249P-5FD3; accord van Schendel,

supra, at 525. So to prohibit effectively the

discriminatory elimination of this class of society, the

Provision must operate pre-viability.

26

CONCLUSION

This Court should grant the Petition.

Respectfully submitted,

BRAD D. SCHIMEL MISHA TSEYTLIN

Attorney General Solicitor General

Counsel of Record

STATE OF WISCONSIN

DEPARTMENT OF JUSTICE KEVIN M. LERoy

17 West Main Street Deputy Solicitor

Madison, WI 53703 General

tseytlinm@doj.state.wi.us

(608) 267-9323

Attorneys for Amicus

Curiae State of

Wisconsin

November 2018

[Additional counsel

listed on next page]

ADDITIONAL COUNSEL

STEVE MARSHALL

Alabama Attorney

General

MARK BRNOVICH

Arizona Attorney

General

LESLIE RUTLEDGE

Arkansas Attorney

General

CHRISTOPHER M. CARR

Georgia Attorney

General

LAWRENCE G. WASDEN

Idaho Attorney

General

DEREK SCHMIDT

Kansas Attorney

General

JEFF LANDRY

Louisiana Attorney

General

BILL SCHUETTE

Michigan Attorney

General

JOSHUA D. HAWLEY

Missouri Attorney

General

DOUGLAS J. PETERSON

Nebraska Attorney

General

MICHAEL DEWINE

Ohio Attorney

General

MIKE HUNTER

Oklahoma Attorney

General

ALAN WILSON

South Carolina

Attorney General

MARTY J. JACKLEY

South Dakota

Attorney General

KEN PAXTON

Texas Attorney

General

SEAN D. REYES

Utah Attorney

General

PATRICK MORRISEY

West Virginia

Attorney General

PHIL BRYANT

Governor of the State

of Mississippi