____________________
Case: 18-3329 Document: 90 Filed: 01/21/2020 Page: 1
No. 18-3329
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PRETERM-CLEVELAND, et al.,
Plaintiffs-Appellees
v.
LANCE HIMES, et al.,
Defendants-Appellants
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE
IN SUPPORT OF APPELLANTS EN BANC AND URGUING REVERSAL
JUSTIN E. HERDMAN
United States Attorney
AVA M. ROTELL DUSTIN
Executive Assistant United States Attorney
Office of the United States Attorney
Northern District of Ohio
801 West Superior Avenue
Cleveland, OH 44113
(216) 622-3810
DAVID M. DEVILLERS
United States Attorney
MARY BETH YOUNG
Appellate Chief
Office of the United States Attorney
Southern District of Ohio
303 Marconi Boulevard
Columbus, OH 43215
(614) 469-5715
ERIC S. DREIBAND
Assistant Attorney General
ALEXANDER V. MAUGERI
CYNTHIA M. M
CKNIGHT
Deputy Assistant Attorneys General
THOMAS E. CHANDLER
Attorney
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, NW
Washington, DC 20530
(202) 514-4609
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES
INTEREST OF THE UNITED STATES ..........................................................................1
STATEMENT OF THE CASE.............................................................................................2
ARGUMENT
I. Plaintiffs Failed To Establish A Substantial Obstacle In This
Facial Challenge..................................................................................................4
II. The Antidiscrimination Law’s Benefits Justify Any Burdens. ....................9
III. Casey Did Not Purport To Resolve the Issues Here. .................................11
CONCLUSION ......................................................................................................................14
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
ADDENDUM
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TABLE OF AUTHORITES
Cases: Page(s)
Box v. Planned Parenthood of Ind. & Ky., Inc.,
139 S. Ct. 1780 (2019) ..........................................................................................4, 11
Davet v. City of Cleveland, 456 F.3d 549 (6th Cir. 2006)....................................................... 5
Gonzales v. Carhart, 550 U.S. 124 (2007)....................................................................... passim
Miller v. Alabama, 567 U.S. 460 (2012)............................................................................... 12
Ohio v. Akron Center for Reproductive Health, 497 U.S. 502 (1990)..................................... 10
Planned Parenthood of Greater Ohio v. Hodges,
917 F.3d 908 (6th Cir. 2019)...................................................................................... 7
Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of the Ind. State
Dep’t of Health, 917 F.3d 532 (7th Cir. 2018),
judgment rev’d in part, 139 S. Ct. 1780 (2019).................................................11-12
Planned Parenthood of Southeastern Pennsylvania v. Casey,
505 U.S. 833 (1992)............................................................................................. passim
Preterm-Cleveland v. Himes, 294 F. Supp. 3d 746 (S.D. Ohio. 2018)................................... 2
Preterm-Cleveland v. Himes, 940 F.3d 318 (6th Cir. 2019)......................................... 2-3, 5, 9
Roe v. Wade, 410 U.S. 113 (1973)........................................................................................ 13
Stenberg v. Carhart, 530 U.S. 914 (2000)..........................................................................8, 11
Tennessee v. Lane, 541 U.S. 509 (2004) ................................................................................ 10
United States v. Salerno, 481 U.S. 739 (1987)......................................................................... 8
Washington v. Glucksberg, 521 U.S. 702 (1997).................................................................... 10
Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) ........................................3-4, 8
ii
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Cases (continued): Page(s)
Women’s Med. Prof’l Corp. v. Taft, 353 F.3d 436 (6th Cir. 2003) ......................................... 1
Statutes:
18 U.S.C. 1531 ........................................................................................................................ 1
28 U.S.C. 517........................................................................................................................... 1
42 U.S.C. 2000ff-8(b) ............................................................................................................. 2
Ohio Rev. Code
§ 2919.10(B)..................................................................................................................1-2
§ 2919.10(F)..................................................................................................................... 2
§ 2919.101(A) .................................................................................................................. 3
Rule:
Federal Rule of Appellate Procedure 29(a)(2)..................................................................... 1
iii
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INTEREST OF THE UNITED STATES
The United States respectfully submits this amicus brief in support of Ohio.
1
Ohio Revised Code § 2919.10(B) prohibits abortion providers from performing an
abortion they know is sought because of Down syndrome. Both the district court and
a divided panel of this Court erred in holding this law unconstitutional under the
undue-burden standard. Nothing in Ohio’s law creates a substantial obstacle to women
obtaining an abortion, and nothing in the Constitution or Supreme Court precedent
requires States to authorize medical providers to participate in abortions the providers
know are based on Down syndrome.
Given Congress’s abortion legislation, e.g., 18 U.S.C. 1531, the United States has
an interest in the scope of the undue-burden standard and has participated in cases
involving state abortion laws, see, e.g., June Medical Services L.L.C. v. Gee, Nos. 18-1323
& 18-1460 (U.S. filed Jan. 2, 2020) (U.S. June Medical Br.); Women’s Med. Prof’l Corp. v.
Taft, 353 F.3d 436 (6th Cir. 2003). The federal government also has an interest in the
equal dignity of those living with disabilities. It enforces civil rights laws that outlaw
various forms of disability discrimination, including the Rehabilitation Act, the
Americans with Disabilities Act, and the Individuals with Disabilities Education Act. It
also enforces the Genetic Information Nondiscrimination Act, which protects against
discrimination as to health insurance and employment on the basis of genetic
1
Under Rule 29(a)(2), the United States may file an amicus brief in the courts of
appeals “without the consent of the parties or leave of court.” See also 28 U.S.C. 517.
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information, including “of any fetus carried by [a] pregnant woman,” 42 U.S.C. 2000ff-
8(b). And more generally, the United States has an interest in protecting individuals
from discrimination on the basis of disability, race, sex, and other protected grounds.
STATEMENT OF THE CASE
In 2017, Ohio’s General Assembly passed, and Governor John Kasich signed,
legislation (the Antidiscrimination Law) directing that an abortion provider cannot
“purposely perform or induce or attempt to perform or induce an abortion on a
pregnant woman if” the provider “has knowledge that the pregnant woman is seeking the
abortion, in whole or in part, because of” a “test result” or “prenatal diagnosis” of
“Down syndrome in an unborn child” or “[a]ny other reason to believe that an unborn
child has Down syndrome.” Ohio Rev. Code § 2919.10(B) (emphasis added).
The
Antidiscrimination law also adds an item to Ohio’s abortion reporting regime, directing
the attending physician to indicate that he or she “does not have knowledge” the
abortion violated Section 2919.10(B). Ohio Rev. Code § 2919.101(A). Finally, the law
expressly shields women who seek such abortions from any liability. Id. § 2919.10(F).
Plaintiffs brought a facial challenge before the law took effect. The district court
entered a preliminary injunction, Preterm-Cleveland v. Himes, 294 F. Supp. 3d 746 (S.D.
Ohio. 2018) (Preterm I). A divided panel of this Court affirmed by purporting to apply
the joint opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833
(1992). Preterm-Cleveland v. Himes, 940 F.3d 318, 323-325 (6th Cir. 2019) (Preterm II).
2
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Judge Batchelder dissented, observing the district court cited “no evidence” that the
law created a substantial obstacle to obtaining an abortion. Id. at 328.
ARGUMENT
To establish that the Antidiscrimination Law imposes an undue burden, plaintiffs
had the burden to show both that (i) the law “places a substantial obstacle in the path
of women seeking a previability abortion,” and (ii) that the substantial obstacle is not
outweighed by “benefits sufficient to justify the burdens.” Whole Woman’s Health v.
Hellerstedt, 136 S. Ct. 2292, 2300 (2016). They failed to do so.
At the outset, the Antidiscrimination Law serves several important purposes. It
protects individuals with disabilities from prejudice and indifference and the medical
profession from harm to its integrity and reputation. The law also wards against the
slippery slope to medical involvement in race- or sex-based abortions. And it protects
women themselves by separating them from potentially coercive abortion providers
who may seek to pressure them into obtaining an abortion because of Down syndrome.
Consistent with those goals, the law does not prohibit any abortions. Instead, it
merely forbids providers to participate in abortions they know are sought on the basis
of Down syndrome. This is what the text of the law says, this is how the State of Ohio
understands the statute, and this is the construction the canon of constitutional
avoidance compels. Thus, whether one considers its purpose or effect, the law does
not create a substantial obstacle to obtaining a previability abortion. It certainly does
not create a substantial obstacle for a large fraction of affected women—let alone all
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such women. And regardless, any burdens would be outweighed by the law’s substantial
benefits. Nothing in Casey (or any other Supreme Court decision) holds otherwise.
I. Plaintiffs Failed To Establish A Substantial Obstacle In This
Facial Challenge.
To carry their “heavy burden” in this facial challenge, Gonzales v. Carhart, 550
U.S. 124, 167 (2007), plaintiffs had to “present evidence” that the Antidiscrimination
Law would create a substantial obstacle to obtaining an abortion for at least a “large
fraction” of affected women. Hellerstedt, 136 S. Ct. at 2313, 2320 (citation omitted).
They did not do so.
1. Given their choice to bring a pre-enforcement facial challenge before the
Antidiscrimination Law took effect, plaintiffs could not provide any direct evidence of
the law’s impact. Plaintiffs likewise offered no evidence that any of the many other
state laws that prohibit abortions because of race, sex, or genetic abnormality—some
of longstanding vintage—have imposed substantial burdens (or even any burden)
within their respective jurisdictions. See Box v. Planned Parenthood of Ind. & Ky., Inc., 139
S. Ct. 1780, 1783 n.2 (2019) (Thomas, J., concurring) (collecting statutes). Instead,
plaintiffs simply maintained that the law would prohibit “women seeking an abortion
after a diagnosis or indication of fetal Down syndrome” from “obtaining an abortion
in Ohio.” Panel Br. 28 n.6. That assumption is flatly incorrect. As Ohio represented
to this Court:
The law does not prohibit any abortions at all. Any woman can obtain a
pre-viability abortion of any pregnancy for any reason except a Down
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syndrome diagnosis. Even if she wants an abortion for that reason, she can
get one: The Antidiscrimination Law does not require that a physician
inquire into the motivations of the woman seeking an abortion, nor does
it require the woman to disclose her motivations, nor does it instruct a
physician to speculate.
En Banc Pet. 13-14 (emphasis altered); see also Ohio Supp. Br. 16-18.
Thus, unless a woman discloses such a motivation to an abortion provider, her
ability to obtain an abortion from that provider is unfettered. And even if she were to
volunteer this motivation, nothing in the law would prevent her from seeking out a
second provider. See Preterm II, 940 F.3d at 328 (Batchelder, J., dissenting).
Furthermore, nothing in the law prevents a doctor or abortion provider with knowledge
of a Down syndrome-motivated abortion from referring the patient elsewhere.
Plaintiffs have not shown that this would create a substantial obstacle. Cf. Casey, 505
U.S. at 886 (joint opinion) (waiting period requiring “at least two visits to the doctor”
not substantial obstacle). Ohio’s construction of the Antidiscrimination Law also
allows this Court to avoid more difficult constitutional questions. See Davet v. City of
Cleveland, 456 F.3d 549, 554 (6th Cir. 2006).
Plaintiffs respond by claiming that the “evidence shows not only that patients
voluntarily disclose the reasons for their abortion (including this reason), but also that
patients’ medical records often reveal when testing indicates or diagnoses Down
syndrome.” En Banc Opp’n 7. But the only evidence they cite for this proposition
(their own declarant) does not suggest that the majority of relevant patients expressly
explain to their providers their reasons for seeking an abortion (or that they identify
5
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Down syndrome as their motivation). See Lappen Decl. ¶¶ 35-37, R. 3-1, PAGE ID#
46; En Banc Opp’n 11. And, the mere fact that a woman seeks an abortion after
receiving a Down syndrome diagnosis cannot serve as proof of a provider’s knowledge
of her motivation, which—as the same declarant and plaintiffs acknowledge, id.—is
often complex and evolving. Simply put, although a genetic test result or specialist’s
referral may cause an abortion provider to suspect the patient’s subjective motive, a
provider in these circumstances cannot presume to know the patient’s mind on such a
multifaceted decision, and providers need not “inquire” or “speculate.” See Ohio Supp.
Br. 24 (“Speculation is not ‘knowledge,’ so the law does not stop doctors from
performing abortions simply because they think—based on medical records or anything
else—that the patient might want the abortion based on a Down syndrome indication.”).
That the Antidiscrimination Law applies before viability does not change the
analysis. Casey recognized that a State has a “substantial * * * interest” in protecting
“potential life throughout pregnancy”—not just after viability—and rejected a constitutional
rule that would impose a “rigid prohibition on all previability regulation.” 505 U.S. at
873, 876 (joint opinion) (emphasis added). Casey accordingly upheld multiple
restrictions on abortion that applied before viability, including a mandatory waiting
period and an informed-consent requirement. See id. at 881-887. Likewise, the Court
in Gonzales upheld the federal partial-birth abortion ban even though that statute applied
“both previability and postviability.” 550 U.S. at 147. Plaintiffs try to distinguish
Gonzales on the ground that the statute at issue permitted alternative avenues for
6
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obtaining abortion. En Banc Opp’n 8. But the same is true here; as noted, the law
leaves a woman free to obtain an abortion (even on the basis of a Down syndrome
diagnosis) without disclosing her motive to her provider, or to obtain an abortion from
an alternative provider if she has disclosed her motive to the first one.
Given that the effect of the Antidiscrimination Law so clearly does not create a
substantial obstacle to obtaining previability abortions, it is unsurprising that it lacked
such a purpose. Gonzales, 550 U.S. at 157. That is not because Ohio passed a toothless
law, but rather because this legislation carefully targets the knowing participation of a
provider in an abortion on the basis of Down syndrome given the State’s significant
interest in protecting the reputation and integrity of its medical profession. See Part II,
infra. And, it is only women—not abortion providers—who matter in the
undue-burden analysis. Indeed, just last year, this Court specifically observed that “[t]he
Supreme Court has never identified a freestanding right to perform abortions.” Planned
Parenthood of Greater Ohio v. Hodges, 917 F.3d 908, 912 (6th Cir. 2019) (en banc).
Accordingly, plaintiffs have not carried their “heavy burden,” Gonzales, 550 U.S.
at 167 (citation omitted), of establishing that the Antidiscrimination Law will impose a
substantial obstacle for any Ohio woman who wishes to obtain an abortion on the basis
of Down syndrome, let alone the large fraction required to sustain a facial challenge
under the standard most favorable to plaintiffs.
2. Alternatively, this Court could reverse by applying the general rule that a
law is facially unconstitutional only if “no set of circumstances exists under which the
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Act would be valid,” United States v. Salerno, 481 U.S. 739, 745 (1987)—a standard the
Supreme Court has applied to a facial challenge to an abortion regulation, see Ohio v.
Akron Center for Reproductive Health, 497 U.S. 502, 514 (1990). To be sure, in the course
of facially invalidating a spousal-notification provision, the joint opinion in Casey stated
that, “in a large fraction of the cases in which [the provision] is relevant, it will operate
as a substantial obstacle.” 505 U.S. at 895. Yet Casey did not apply the large-fraction
formulation to any other provision, nor did the Court use the formulation in striking
down a state partial-birth abortion ban in Stenberg v. Carhart, 530 U.S. 914 (2000), see id.
at 1019 (Thomas, J., dissenting), and the Court reserved the question in Gonzales, 550
U.S. at 167. Hellerstedt invoked the large-fraction formulation, but while noting that
“Texas reads Casey to have required” that approach. 136 S. Ct. at 2320. The proper
standard thus remains an “open question” in the Supreme Court. Id. at 2343 n.11 (Alito,
J., dissenting). And although panels of this Court (including the one here) have invoked
the “large-fraction test” in adjudicating facial challenges to abortion regulations, see,
e.g., Preterm II, 940 F.3d at 325, this Court sitting en banc could clarify that the Salerno
standard applies. See U.S. June Medical Br. at 29-31.
In all events, Plaintiffs cannot satisfy either Salerno’s “no set of circumstances”
standard or the large-fraction standard. For example, they have not disputed that a
woman who seeks an abortion after receiving a Down syndrome diagnosis, but does
not disclose her motivations, faces no burden, let alone a substantial one. See En Banc
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Opp’n 7. And, upholding the law facially will still allow “preenforcement, as-applied
challenges to the Act [to] be maintained.” Gonzales, 550 U.S. at 167.
II. The Antidiscrimination Law’s Benefits Justify Any Burdens.
Because the Antidiscrimination Law does not create a substantial obstacle, this
Court need not consider its benefits. See U.S. June Medical Br. at 17-21. But the law’s
benefits are more than sufficient to prevail in any balancing.
First, the law advances Ohio’s legitimate “interest in protecting the integrity and
ethics of the medical profession.” Gonzales, 550 U.S. at 157 (citation omitted). Ohio
was entitled to conclude that permitting providers knowingly to perform abortions
based on Down syndrome could “do deep damage to the integrity of the medical
profession,” Preterm II, 940 F.3d at 326 (Batchelder, J., dissenting)—both in the eyes of
those with Down syndrome and the public more generally. Cf. Gonzales, 550 U.S. at
157-158 (explaining that federal partial-birth abortion ban helped maintain “a bright
line that clearly distinguishes abortion and infanticide” and thereby helped avoid
“confus[ing] the medical, legal, and ethical duties of physicians”) (citations omitted).
This interest explains why the law permits a woman to obtain an abortion on the basis
of Down syndrome so long as the provider remains unaware of her motivation.
Although Ohio’s interest in protecting the dignity of those with Down syndrome exists
regardless of a provider’s knowledge, its interest in protecting the integrity and
reputation of the medical profession is particularly implicated when that provider
knowingly performs an abortion on the basis of that condition. Relatedly, this aspect
9
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of the Antidiscrimination Law helps protect women against the risk that some or any
abortion providers may pressure them to obtain an abortion on the basis of Down
syndrome rather than leaving this difficult decision to them. The suggestion that Ohio’s
decision to draw the line at a provider’s knowledge is irrational, see En Banc Opp’n 7,
is thus no more tenable than the argument Gonzales rejected that “standard D & E”
abortions are “as brutal, if not more, than” partial-birth (or “intact D & E”) abortions,
550 U.S. at 160.
Second, the Antidiscrimination Law “protect[s] disabled * * * people from
prejudice, negative and inaccurate stereotypes, and ‘societal indifference.’” Washington
v. Glucksberg, 521 U.S. 702, 732 (1997). A prohibition on abortion providers from
knowingly performing abortions based on disability—like a prohibition on knowingly
participating in assisted suicides—replaces “negative messages” with a public statement
that the lives of individuals with “disabil[ities] * * * must be no less valued than the
lives” of others. Id. Many women whose unborn children are diagnosed with Down
syndrome receive the message that those children would be better off never being born.
See Ohio Supp. Br. 15. The Antidiscrimination Law promotes Ohio’s contrary message
that people with Down syndrome have lives worth living, lives worth protecting. The
validity of such a message is evident, especially, when one considers “the once-pervasive
practice of involuntarily sterilizing those with mental disabilities,” which “the judiciary
itself * * * endorsed.” Tennessee v. Lane, 541 U.S. 509, 534 (2004) (Souter, J.,
concurring).
10
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Third, the law “draw[s] boundaries to prevent certain practices that extinguish life
and are close to actions that are condemned.” Gonzales, 550 U.S. at 158. Just as a State
may reasonably “fear that permitting assisted suicide will start it down the path to
voluntary and perhaps even involuntary euthanasia,” id. (citation omitted), it may also
conclude that permitting providers knowingly to perform abortions on the basis of
Down syndrome will open the door to the involvement of the State’s medical
profession with abortions done on the basis of race, sex, genetic makeup, or other
attributes that can be detected prenatally, see Box, 139 S. Ct. at 1784-1793 (Thomas, J.,
concurring).
III.
Casey
Did Not Purport To Resolve The Issues Here.
In a recent opinion joined by Judges Sykes, Barrett, and Brennan, Judge
Easterbrook explained that “[n]one of the [Supreme] Court’s abortion decisions hold[]
that states are powerless to prevent abortions designed to [select] sex, race, and other
attributes.” Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of the Ind. State Dep’t of Health,
917 F.3d 532, 535 (7th Cir. 2018) (dissenting from denial of rehearing en banc),
judgment rev’d in part, 139 S. Ct. 1780 (2019). Those who disagree believe that the
Supreme Court should be understood to have conclusively held that all previability
prohibitions are unconstitutional, including prohibitions on abortions done on the basis
of disability, sex, or race. They base that belief on the following language from Casey:
“a State may not prohibit any woman from making the ultimate decision to terminate
her pregnancy before viability.” 505 U.S. at 879. This appeal does not require this
11
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Court to resolve that debate. Instead, the Antidiscrimination Law does not prohibit
women from obtaining a previability abortion on any ground, including Down
syndrome. See Part I, supra. Thus, this Court can reverse the district court’s preliminary
injunction by applying Casey’s undue-burden framework.
That being said, nothing in Casey (or any other Supreme Court decision) has
purported to address whether States may prohibit previability abortions when the
provider knows they are being sought on the basis of Down syndrome (or other
characteristics such as race or sex). Casey did not involve a challenge to a state law
prohibiting abortions based on a provider’s knowledge that the woman was seeking the
procedure on the basis of Down syndrome. This is important, because “[j]udicial
opinions are not statutes; they resolve only the situations presented for decision.”
Planned Parenthood of Ind. & Ky., Inc., 917 F.3d at 536 (Easterbrook, J., dissenting from
denial of rehearing en banc). For example, in Gonzales, the Supreme Court did not
adhere to language from its opinion in Stenberg that, in isolation, could be read to suggest
that a statute banning a particular abortion method would be unconstitutional if there
is conflicting evidence as to whether the statute would create significant health risks.
See Gonzales, 550 U.S. at 166; cf. Miller v. Alabama, 567 U.S. 460, 481 (2012) (similarly
distinguishing on factual grounds language in prior precedent).
Indeed, the United States informed the Supreme Court in Casey that the
petitioners did not challenge a provision of the Pennsylvania law “prohibit[ing] pre-
viability abortions based on the sex of the fetus,” and argued that, presumably, they had
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not done so because in “a free, egalitarian, and democratic society * * * no one could
seriously claim that the Constitution offers the remotest protection for such a macabre
act.” U.S. Amicus Br. at 18 n.13, Casey, supra (Nos. 91-744, 91-902), 1992 WL 12006421
(Apr. 6, 1992). And the Supreme Court gave no indication that, in upholding nearly all
of Pennsylvania’s abortion restrictions, it also held (sub silentio) that the Constitution
protects abortions on the basis of sex (and by extension, disability). Cf. Roe v. Wade,
410 U.S. 113, 153 (1973) (declining to endorse the proposition that a woman is “entitled
to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she
alone chooses”) (emphasis added).
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CONCLUSION
This Court should reverse the district court’s judgment.
JUSTIN E. HERDMAN
United States Attorney
AVA M. ROTELL DUSTIN
Executive Assistant United States
Attorney
Office of the United States Attorney
Northern District of Ohio
801 West Superior Avenue
Cleveland, OH 44113
(216) 622-3810
DAVID M. DEVILLERS
United States Attorney
MARY BETH YOUNG
Appellate Chief
Office of the United States Attorney
Southern District of Ohio
303 Marconi Boulevard
Columbus, OH 43215
(614) 469-5715
Respectfully submitted,
/s/ Eric S. Dreiband
ERIC S. DREIBAND
Assistant Attorney General
ALEXANDER V. MAUGERI
CYNTHIA M. M
CKNIGHT
Deputy Assistant Attorneys General
THOMAS E. CHANDLER
Attorney
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 514-4609
14
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CERTIFICATE OF COMPLIANCE
This brief complies with the length limitation of Federal Rule of Appellate
Procedure 29(a)(5) and this Court’s en banc briefing order because it does not exceed
twelve and one-half pages.
This brief also complies with the typeface and type-style requirements of Federal
Rule of Appellate Procedure 32(a)(5)-(6) because it was prepared using Microsoft Word
2016 in Times New Roman 14-point font, a proportionally spaced typeface.
/s/ Eric S. Dreiband
ERIC S. DREIBAND
Assistant Attorney General
DATE: January 21, 2020
Case: 18-3329 Document: 90 Filed: 01/21/2020 Page: 20
CERTIFICATE OF SERVICE
I hereby certify that on January 21, 2020, I electronically filed the foregoing
brief with the Clerk of the Court for the United States Court of Appeals for the Sixth
Circuit by using the appellate CM/ECF system. Participants in the case are registered
CM/ECF users, and service will be accomplished by the appellate CM/ECF system.
/s/ Eric S. Dreiband
ERIC S. DREIBAND
Assistant Attorney General
Case: 18-3329 Document: 90 Filed: 01/21/2020 Page: 21
ADDENDUM
Docket Entry Number
Description
PageID# Range
3-1
Lappen Declaration
46
