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Petition for Certiorari No. ______ IN THE Supreme Court of the United States ———— LESLIE RUTLEDGE, in her official capacity as Attorney General of the State of Arkansas, et al., Petitioners, v. LITTLE ROCK FAMILY PLANNING SERVICES, et al., Respondents. ———— On Petition for a Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit ———— PETITION FOR A WRIT OF CERTIORARI ———— LESLIE RUTLEDGE Arkansas Attorney General OFFICE OF THE ARKANSAS NICHOLAS J. BRONNI ATTORNEY GENERAL Solicitor General 323 Center St., Ste. 200 Counsel of Record Little Rock, AR 72201 VINCENT M. WAGNER (501) 682-6302 Deputy Solicitor General nicholas.bronni@ ASHER STEINBERG arkansasag.gov MICHAEL A. CANTRELL DYLAN L. JACOBS Assistant Solicitors General JENNIFER L. MERRITT Senior Assistant Attorney General Counsel for Petitioners WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002 QUESTION PRESENTED The question presented is: Whether the Fourteenth Amendment bars States from prohibiting abortions that are sought solely because of a prenatal diagnosis of Down syndrome. (i) ii PARTIES TO THE PROCEEDINGS BELOW Petitioners are Leslie Rutledge, in her official capacity as Attorney General of the State of Arkansas; Larry Jegley, in his official capacity as Prosecuting Attorney of Pulaski County; Matt Durrett, in his official capacity as Prosecuting Attorney of Washington County; Sylvia D. Simon, in her official capacity as Chairman of the Arkansas State Medical Board; Rhys L. Branman, Veryl D. Hodges, Brian T. Hyatt, Timothy C. Paden, Don R. Phillips, John H. Scribner, David L. Staggs, and, automatically substituted under Fed. R. App. P. 43(c)(2), Elizabeth Anderson, Edward “Ward Gardner,” and Betty Guhman, in their official capacities as members of the Arkansas State Medical Board; and, also automati- cally substituted under Fed. R. App. P. 43(c)(2), Jose Romero, in his official capacity as Secretary of the Arkansas Department of Health, the position formerly known as Director and State Health Officer of the Arkansas Department of Health, see Transformation and Efficiencies Act of 2019, sec. 2, 2019 Ark. Acts 5486, 5498 (Apr. 11, 2019) (enacting Ark. Code Ann. 25-43-108(d)(7)). They were defendants-appellants in the court of appeals. Respondents are Little Rock Family Planning Services, Planned Parenthood of Arkansas & Eastern Oklahoma, d/b/a Planned Parenthood of Great Plains, Stephanie Ho, and Thomas Tvedten. They were plaintiffs-appellees in the court of appeals. iii RELATED PROCEEDINGS Little Rock Family Planning Services v. Rutledge, No. 4:19-cv-00449-KGB (E.D. Ark.) (preliminary injunction entered Aug. 6, 2019). In re Rutledge, No. 20-1791 (8th Cir.) (judgment entered Apr. 22, 2020). Little Rock Family Planning Services v. Rutledge, No. 4:20-cv-00470-BSM (E.D. Ark.) (judgment entered June 11, 2020). Little Rock Family Planning Services v. Rutledge, No. 19-2690 (8th Cir.) (judgment entered Jan. 5, 2021). TABLE OF CONTENTS Page QUESTION PRESENTED .................................. i PARTIES TO THE PROCEEDINGS BELOW ... ii RELATED PROCEEDINGS ............................... iii TABLE OF AUTHORITIES ................................ vii OPINIONS BELOW ............................................ 1 JURISDICTION .................................................. 1 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .............................. 1 INTRODUCTION ................................................ 2 STATEMENT ...................................................... 4 A. Down Syndrome and Selective Abortion . 4 B. Arkansas’s Prohibition of Selective Abortion ..................................................... 9 C. Procedural History .................................... 10 REASONS FOR GRANTING THE WRIT .......... 12 I. The court of appeals’ decision conflicts with this Court’s precedent and is wrong. ........................................................ 12 A. Under this Court’s precedent, abor- tion regulations that reasonably serve a compelling state interest are constitutional. ...................................... 12 1. Before Casey, abortion regulations that reasonably furthered compel- ling interests were valid. ............... 13 (v) vi TABLE OF CONTENTS—Continued Page 2. Under Casey, abortion regulations that reasonably further compel- ling interests are valid. .................. 18 3. June Medical did not alter Casey’s test. ................................................. 22 B. Arkansas’s law reasonably furthers compelling interests in antidiscrim- ination. ................................................. 24 1. Arkansas’s interests are compelling....................................... 25 2. Arkansas’s law reasonably serves its compelling interests. ................. 29 II. The court of appeals’ decision implicates a circuit split. ............................................ 29 III. The question presented is exceptionally important. ................................................. 32 CONCLUSION .................................................... 34 APPENDIX APPENDIX A: Opinion, Court of Appeals for the Eighth Circuit (January 5, 2021) ............. 1a APPENDIX B: Preliminary Injunction, Dis- trict Court for the Eastern District of Arkansas (August 6, 2019) ............................. 21a APPENDIX C: The Arkansas Down Syn- drome Discrimination by Abortion Prohibi- tion Act, Ark. Code Ann. 20-16-2101 to 2107 . 239a vii TABLE OF AUTHORITIES CASES Page(s) Bellotti v. Baird, 443 U.S. 622 (1979) ................................... 17 Bd. of Dirs. of Rotary Club Int’l v. Rotary Club of Duarte, 481 U.S. 537 (1987) ................................... 25 Box v. Planned Parenthood of Ind. & Ky., Inc., 139 S. Ct. 1780 (2019) ........................ 8-9, 25, 27 Brown v. Bd. of Educ., 347 U.S. 483 (1954) ................................... 3, 27 Buck v. Bell, 274 U.S. 200 (1927) ................................... 25 City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789 (1984) ................................... 29 City of Akron v. Akron Ctr. For Reprod. Health, 462 U.S. 416 (1983) ........... 15, 16, 17, 18, 23, 29 Connecticut v. Menillo, 423 U.S. 9 (1975) (per curiam) ........... 15, 16, 21 EMW Women’s Surgical Ctr., P.S.C. v. Friedlander, 978 F.3d 418 (6th Cir. 2020) ..................... 31 Gary-Northwest Ind. Women’s Servs., Inc. v. Orr, 451 U.S. 934 (1981) ................................... 16 Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) ................................... 28 viii TABLE OF AUTHORITIES—Continued Page(s) Hodgson v. Minnesota, 497 U.S. 417 (1990) ................................... 17 Hopkins v. Jegley, 968 F.3d 912 (8th Cir. 2020) ..................... 30 Hughes v. United States, 138 S. Ct. 1765 (2018) .............................. 30 June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020) ..............................passim Marks v. United States, 430 U.S. 188 (1977) ............................. 24, 30, 31 Mazurek v. Armstrong, 520 U.S. 968 (1997) (per curiam) ............. 22 N.Y. State Club Ass’n, Inc. v. City of New York, 487 U.S. 1 (1988) ....................................... 25 Planned Parenthood Ass’n of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476 (1983) ................................... 21 Planned Parenthood of Ind. & Ky., Inc. v. Box, — F.3d —, 2021 WL 940125 (7th Cir. 2021) .......................................................... 22, 31 Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of Ind. State Dep’t of Health, 888 F.3d 300 (7th Cir. 2018) .................... 28 Planned Parenthood of Ind. & Ky, Inc. v. Comm’r of Ind. State Dep’t of Health, 917 F.3d 532 (7th Cir. 2018) ..................... 27 ix TABLE OF AUTHORITIES—Continued Page(s) Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833 (1992) ..................................passim Preterm-Cleveland v. Himes, 940 F.3d 318 (6th Cir. 2019), reh’g en banc granted, opinion vacated, 944 F.3d 630 (2019) ............................ 26, 28, 30 Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ....................... 25, 27, 28, 29 Roe v. Wade, 410 U.S. 113 (1973) ..................................passim Simopoulos v. Virginia, 462 U.S. 506 (1983) ................................... 16, 21 Strauder v. West, 100 U.S. 303 (1879) ................................... 27 Tennessee v. Lane, 541 U.S. 509 (2004) ................................... 25 Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747 (1986) .................................... 18, 20 Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) ............................... 31 Whole Woman’s Health v. Paxton, 972 F.3d 649 (5th Cir. 2020) ..................... 31 Whole Woman’s Health v. Paxton, 978 F.3d 896 (5th Cir. 2020), reh’g en banc granted, opinion vacated, 978 F.3d 974 (2020) .................................. 31 x TABLE OF AUTHORITIES—Continued CONSTITUTION Page(s) U.S. Const. amend. XIV, sec. 1 .................... 1 STATUTES 28 U.S.C. 1254(1) .......................................... 1 Arkansas Down Syndrome Discrimination by Abortion Prohibition Act, Ark. Code Ann. 20-16-2101 to 2107 20-16-2102(1)(B)(i) .................................... 9 20-16-2103(a) ............................................ 9 20-16-2103(b)(1) ........................................ 9 20-16-2103(b)(2) ........................................ 9 20-16-2106(a) ............................................ 10 OTHER AUTHORITIES Peter A. Benn & Audrey R. Chapman, Practical and Ethical Considerations of Noninvasive Prenatal Diagnosis, 301 J. Am. Med.
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