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Petition for Writ of Certiorari No. IN THE Supreme Court of the United States PETITION FOR WRIT OF CERTIORARI Printed with FinePrint trial version - purchase at www.fineprint.com i QUESTIONS PRESENTED 1. Is the Establishment Clause violated by the proclamation in an abortion statute that “The life of each human being begins at conception. Abortion will terminate the life of a separate, unique, living human being?” 2. Can a State constitutionally compel a woman seeking an abortion to acknowledge receipt of the proclamation “The life of each human being begins at conception. Abortion will terminate the life of a separate, unique, living human being” as a condition for getting an abortion when her religious belief is the non- viable fetus is not a human being but rather part of her body that can, in good conscience, be removed on demand without regard to its current or future condition? 3. Can a State can constitutionally compel a woman seeking an abortion to submit to a three day waiting period whose only purpose is to promote her consideration of the State’s proclamation that “The life of each human being begins at conception. Abortion will terminate the life of a separate, unique, living human being” when her religious belief is the non-viable fetus is not a human being but rather part of her body that can, in good conscience, be removed on demand without regard to its current or future condition? 4. Does the undue burden analysis of Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) (“Casey”) or the rational basis analysis of Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990) (“Smith”) apply to a claim an abortion statute violates the Free Exercise clause? ii 5. Must a complaint alleging a violation of 42 U.S.C. §1983 by an abortion statute also explicitly allege an “undue burden” - rather than a “substantial burden” - to state a claim the statute violates the Constitutional standards articulated in Casey? iii PARTIES TO THE PROCEEDINGS Michael L. Parson, Governor of the State of Missouri; Eric S. Schmitt, Attorney General of the State of Missouri; David A. Poggemeier, M.D., Chairman of the Missouri Board of Registration for the Healing Arts; James A. DiRenna, D.O., Member of the Missouri Board of Registration for the Healing Arts; Sara Martin, PhD, Member of the Missouri Board of Registration for the Healing Arts; Katherine J. Matthews; Jade D. James, M.D., Secretary of the Missouri Board of Registration for the Healing Arts; David E. Tannenhill, D.O., Member of the Missouri Board of Registration for the Healing Arts; John Doe I; John Doe II iv TABLE OF CONTENTS QUESTIONS PRESENTED ............................................ i PARTIES TO THE PROCEEDINGS .......................... iiii TABLE OF CONTENTS ............................................... ivv TABLE OF AUTHORITIES ......................................... vii PETITION FOR WRIT OF CERTIORARI ................. 1 OPINIONS BELOW .......................................................... 1 CONSTITUTIONAL AND STATUTORY PROVISIONS ..................................................................... 1 STATEMENT OF THE CASE........................................ 2 REASONS FOR GRANTING THE WRIT................... 6 I.The Eighth Circuit’s Gross Departures From the Precedents of This Court and The Establishment Clause Require the Exercise of This Court’s Jurisdiction. .......................................... 6 A. Johnson and Skinner Hold the Complaint Does Not Need to Allege “Undue Burden” or Casey to State a Claim for a Violation of Casey. .................................. 6 B. Wallace and Cantwell Hold the Religion Clauses Are a Liberty Interest Protected by the Fourteenth Amendment. ............ 6 C. The Eighth Circuit Should Have Applied Casey, Not Smith, to the Free Exercise Claim. ......................................................... 10 D. The Establishment Clause Bars the State From Adopting Catholic Dogma as State Policy. ............................................................... 14 II.This Court Should Decide How the Religion Clauses Apply to Abortion. ......................... 16 A. This Case Presents the Questions Left Unanswered in Webster. .................................. 16 v B. This Court Should Fashion a Common Mandate Based on Constitutional Principles. ...................................................................19 C. The Mandate Should Fulfill Constitutional Purposes. ...........................................20 D. The Mandate Should Respect Established Procedure. .............................................22 E. The Mandate Should Be Contextual. ..............24 CONCLUSION ..............................................................26 vi TABLE OF AUTHORITIES CASES Abington School Dist. v. Schempp, 374 U.S. 203 (1963) ............................................................................... 20 Am. Legion v. Am. Humanist Ass'n, 588 U.S. __, 139 S.Ct. 2067 (2019) ....................................... passim Board of Education v. Barnette, 319 U.S. 624 (1943) ............................................................................... 15 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, __, 134 S. Ct. 2751 (2014) .................................. 9, 21 Calvary Chapel Dayton Valley v. Sisolak, No. 19A1070 (July 24, 2020) ................................................ 21 Cantwell v. Connecticut, 310 U.S. 296 (1940) ........... 9, 10 Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520 (1993) ........................................ 20 City of Akron v. Akron Ctr.for Reprod. Health, Inc., 462 U.S. 416 (1983) ............................................... 17 Cruzan ex rel. Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990) ............... 12 Edwards v. Aguillard, 482 U.S. 578 (1987) ................... 23 Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990) ............. 10, 11, 13 Espinoza v. Montana Dept. of Revenue, No. 18-1195 (June 30, 2020) ................................................. 10 Gillette v. United States, 401 U.S. 437 (1971) ................ 15 Gonzales v. Carhart, 550 U.S. 124 (2007)....................... 17 Griffith v. Johnston, 899 F.2d 1427 (5th Cir. 1990), cert. denied, 498 U.S. 1040 (1991) ...................... 7 Johnson v. City of Shelby, 574 U.S. 10, 135 S.Ct. 346 (2014) .................................................. 5, 6, 7, 24 June Med. Servs. v. Russo, No. 18-1323 (June 29, 2020) .......................................................... 7, 13, 17, 22 McCreary County v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005) ......................... 15, 20 vii McGowan v. Maryland, 366 U.S. 420 (1961) ............24, 25 Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905 (9th Cir. 2014) .................................................13 Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992) ....................................................... passim Public Health Trust of Dade County v. Wons, 541 So.2d 96 (Fla. 1989) .................................................22 Roe v. Wade, 410 U.S. 113 (1973) ............................ passim Satanic Temple v. Parson, No. 16-3387 (8th Cir. Aug. 28, 2018) ............................................................5 Skinner v. Switzer, 562 U.S. 521, 530 (2011) ....................6 Telescope Media Grp. v. Lucero, 936 F.3d 740 (8th Cir. 2019) .............................................................10, 12 Torcaso v. Watkins, 367 U.S. 488 (1961) ...........................9 Town of Greece v. Galloway, 572 U.S. 565 (2014) ................................................................................21 Wallace v. Jaffree, 472 U.S. 38 (1985) ...............................9 Walz v. Tax Commission of New York, 397 U.S. 664 (1970) ................................................................14 Washington v. Glucksberg, 521 U.S. 702 (1997).............12 Webster v. Reproductive Health Services, 492 U.S. 490, 507 (1989) ....................................................2, 17 Whole Woman's Health v. Hellerstedt, 579 U.S. ___, ____136 S. Ct. 2292 (2016) .....................................24 Wiggins v. Sargent, 753 F. 2d 663 (8th Cir. 1985) ...........21 Yellowbear v. Lampert, 741 F.3d 48 (10th Cir. 2014) .................................................................................14 STATUTES 28 USC §1254(1) ...................................................................1 28 U.S.C. §1291 .....................................................................4 28 U.S.C. §1331 .................................................................1, 4 42 U.S.C. §1983 .......................................................... passim Mo. Rev. Stat. § 188.027(11) .............................................23 viii CONSTITUTION Fourteenth Amendment .................................................... 2 Religion Clauses ........................................................ passim RULES Fed. R. Civ. Pro. 12(b)(6) ............................................... 4, 6 Fed. R. Civ. Pro. 8(a)(2) ......................................... 6, 23, 24 1 PETITION FOR WRIT OF CERTIORARI Petitioner Judy Doe (“Petitioner”) respectfully petitions this Court for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eighth Circuit (the “Eighth Circuit”). OPINIONS BELOW The memorandum opinion of the Eighth Circuit in Doe v. Parson, 960 F.3d 1115 (8th Cir. 2020) is included herein as an Appendix at page 1 (“App. 1a”). The memorandum opinion of the United
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