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Nos. 19-2882 & 19-3134 UNITED STATES COURT of APPEALS

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Nos. 19-2882 & 19-3134 UNITED STATES COURT of APPEALS Nos. 19-2882 & 19-3134 UNITED STATES COURT OF APPEALS FOR THEEIGHTHCIRCUIT __________________________________________ Reproductive Health Services of Planned Parenthood of the St. Louis Region, Inc., et al., Plaintiffs-Appellees, v. Governor Michael L. Parson, et al., Defendants-Appellants. __________________________________________ Appeal from the United States District Court for the Western District of Missouri The Honorable Howard F. Sachs Case No. 2:19-cv-4155-HFS __________________________________________ BRIEF FOR ALLIANCE DEFENDING FREEDOM AS AMICUS CURIAE IN SUPPORT OF APPELLANTS AND REVERSAL __________________________________________ KEVIN H. THERIOT SAMUEL D. GREEN ALLIANCE DEFENDING FREEDOM 15100 N. 90th Street Scottsdale, AZ 85260 (480) 444-0020 [email protected] [email protected] Attorneys for Amicus Curiae Alliance Defending Freedom Appellate Case: 19-3134 Page: 1 Date Filed: 11/22/2019 Entry ID: 4854798 Corporate Disclosure Statement Under Fed. R. App. P. 26.1 and 8th Cir. R. 26.1A, Amicus Curiae Alliance Defending Freedom, a nonprofit entity, states that it has no parent corporation and that it does not issue stock. Dated: November 21, 2019. Respectfully submitted, s/ Kevin H. Theriot KEVIN H. THERIOT Attorney for Amicus Curiae Alliance Defending Freedom i Appellate Case: 19-3134 Page: 2 Date Filed: 11/22/2019 Entry ID: 4854798 Table of Contents Corporate Disclosure Statement ................................................................................ i Table of Authorities ................................................................................................. iv Interest of Amicus Curiae ..........................................................................................1 Introduction................................................................................................................1 Argument....................................................................................................................3 I. Missouri’s efforts to prevent invidious discrimination against unborn children are constitutional. ..............................................................................3 A. The Supreme Court has never precluded states from protecting unborn children from invidious discrimination. ...................................4 B. The government can prohibit specific types of particularly troubling abortions without substantially interfering with the ability to procure pre-viability abortions generally...............................6 II. Compelling interests exist to halt fatal discrimination against unborn children with unique genetics..........................................................................9 A. Missouri’s interests in preventing discrimination here are at least as strong as those that federal courts and legislation have long recognized. ..........................................................................................10 B. Abortion is used to accomplish eugenic aims.....................................11 C. Targeting those with Down syndrome for fatal discrimination in utero is a pervasive problem. ..............................................................12 D. Doctors aborting children for discriminatory reasons undermines trust in the medical profession and the provision of care. ..................15 E. Constitutionalizing the killing of unborn human beings based on their immutable characteristics will coarsen society and stigmatize those living with the targeted attributes.............................17 ii Appellate Case: 19-3134 Page: 3 Date Filed: 11/22/2019 Entry ID: 4854798 Conclusion ...............................................................................................................19 Certificate of Compliance........................................................................................22 Certificate of Service ...............................................................................................23 iii Appellate Case: 19-3134 Page: 4 Date Filed: 11/22/2019 Entry ID: 4854798 Table of Authorities Cases Box v. Planned Parenthood of Indiana and Kentucky, Inc., 139 S. Ct. 1780 (2019)............................................................................passim Buck v. Bell, 274 U.S. 200 (1927).....................................................................18, 19, 20, 21 Gonzales v. Carhart, 550 U.S. 124 (2007).....................................................................6, 8, 9, 15, 18 Loving v. Virginia, 388 U.S. 1, 11 (1967).....................................................................................14 MKB Management Corporation v. Stenehjem, 795 F.3d 768 (8th Cir. 2015) ...........................................................................6 Planned Parenthood of Indiana & Kentucky, Inc. v. Commissioner of the Indiana State Department of Health, 888 F.3d 300 (7th Cir. 2018) .....................................................4, 9, 10, 16, 18 Planned Parenthood of Indiana & Kentucky, Inc. v. Commissioner of the Indiana State Department of Health, 917 F.3d 532 (7th Cir. 2018) .................................................................4, 7, 17 Planned Parenthood of Southeast Pennsylvania v. Casey, 505 U.S. 833 (1992).....................................................................................7, 8 Preterm-Cleveland v. Himes, 940 F.3d 318 (6th Cir. 2019) ...................................................8, 10, 12, 15, 19 Reproductive Health Services of Planned Parenthood of the St. Louis Region, Inc. v. Parson, 2019 WL 4740511 (W.D. Mo. Sept. 27, 2019).............................................13 Rules and Statutes 20 U.S.C. § 1681......................................................................................................10 42 U.S.C. § 2000e-2.................................................................................................10 iv Appellate Case: 19-3134 Page: 5 Date Filed: 11/22/2019 Entry ID: 4854798 42 U.S.C. § 3601......................................................................................................10 42 U.S.C. § 12101(a)(1)-(2).....................................................................................10 Federal Rule of Appellate Procedure 29(a)(2)...........................................................1 Mo. Rev. Stat. § 188.038.1(6)..............................................................................9, 18 Mo. Rev. Stat. § 188.038.2 ........................................................................................3 Other Authorities ACOG, Practice Bulletin No. 163: Screening for Fetal Aneuploidy, 127 OBSTETRICS &GYNECOLOGY (May 2016), available at https://bit.ly/2Ocku7R .............................................................................11, 12 Alexandra DeSanctis, Iceland Eliminates People with Down Syndrome, NATIONAL REVIEW (Aug. 16, 2017), https://bit.ly/353ptP6 ....................11, 12 Amy Harmon, Genetic Testing + Abortion = ???,N.Y.TIMES (May 13, 2017), https://nyti.ms/32LIILe ....................................................................7, 8 Down Syndrome: Update on the State of the Science and Potential for Discoveries Across Other Major Diseases: Hearing Before the Subcommittee on Labor, Health & Human Services, Education, & Related Agencies of the House Committee on Appropriations, 115th Cong. (2017) (statement of Frank Stephens), available at https://bit.ly/2rBls5Z..................................................................1, 2, 13, 16, 19 Jérôme Lejeune, 21 Thoughts, available at https://bit.ly/2OcOZuf..................16, 17 Maj Hulten, Obituary: Professor Jerome Lejeune, INDEPENDENT (April 12, 1994), https://bit.ly/33PFHec ..................................................................17 v Appellate Case: 19-3134 Page: 6 Date Filed: 11/22/2019 Entry ID: 4854798 Interest of Amicus Curiae Alliance Defending Freedom is an alliance-building legal organization that advocates for the right of people to freely live out their faith. Alliance Defending Freedom is committed to advancing legal protection for all human life, from conception to natural death, and supports efforts to end invidious discrimination on the basis of race, sex, disability, or genetic makeup. Under Federal Rule of Appellate Procedure 29(a)(2), Alliance Defending Freedom files this amicus curiae brief with the consent of all parties. No counsel for any party authored this brief in whole or in part, and no person or entity, other than Alliance Defending Freedom and its counsel, made a monetary contribution intended to fund the preparation or submission of this brief. Introduction Just two years ago, Frank Stephens emphatically declared before Congress: “I am a man with Down syndrome and my life is worth living.”1 Mr. Stephens felt compelled to make this self-evident point because of the disturbing movement to eradicate those with Down syndrome by aborting them.2 As Mr. Stephens put it, 1 See Down Syndrome: Update on the State of the Science and Potential for Discoveries Across Other Major Diseases: Hearing Before the Subcomm. on Labor, Health & Human Servs., Educ., & Related Agencies of the H. Comm. on Appropriations, 115th Cong. (2017) (statement of Frank Stephens), available at https://bit.ly/2rBls5Z (emphasis omitted) [hereinafter Stephens Testimony]. 2 Id. 1 Appellate Case: 19-3134 Page: 7 Date Filed: 11/22/2019 Entry ID: 4854798 “people pushing that particular ‘final solution’ are saying that people like me should not exist. They are saying that we have too little value to exist.”3
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