236 F.3d 1009 (9th Cir. 2000), 99-17372, Forbes v. Napolitano

Docket Nº:99-17372
Citation:236 F.3d 1009
Party Name:FRED FORBES; MARGARET BOHN; JOHN L. SUMMERS; ANN S. ANDERSON, STUART R. SNIDER; GEORGE MELCHER, JR.; CHRISTOPHER TISCH; PLANNED PARENTHOOD OF CENTRALAND NORTHERN ARIZONA,INC.; ROBERT TAMIS, Plaintiffs-Appellees, v. JANET NAPOLITANO, in her capacity as Attorney General, State of Arizona; STEPHEN NEELY, in his capacity as County Attorney, Pima County
Case Date:December 29, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1009

236 F.3d 1009 (9th Cir. 2000)

FRED FORBES; MARGARET BOHN; JOHN L. SUMMERS; ANN S. ANDERSON, STUART R. SNIDER; GEORGE MELCHER, JR.; CHRISTOPHER TISCH; PLANNED PARENTHOOD OF CENTRALAND NORTHERN ARIZONA,INC.; ROBERT TAMIS, Plaintiffs-Appellees,

v.

JANET NAPOLITANO, in her capacity as Attorney General, State of Arizona; STEPHEN NEELY, in his capacity as County Attorney, Pima County, Arizona, Defendants-Appellants.

No. 99-17372

United States Court of Appeals, Ninth Circuit

December 29, 2000

        Argued and Submitted October 3, 2000

        Order Amending Opinion Filed April 11, 2001.

        Second Amendment Filed August 9, 2001.

NOTE: SEE 247 F.3d 903, AND 260 F.3d 1159.

Page 1010

Bebe J. Anderson, The Center for Reproductive Law & Policy, New York, N.Y. and Michael Owen Miller, Miller SmithLLP, Tucson, Arizona for the plaintiffs-appellees.

        Charles R. Pyle, Assistant Attorney General, Tucson, Arizona, for the defendants-appellants.

        Appeal from the United States District Court for the District of Arizona William D. Browning, District Judge, Presiding. D.C. No.CV-96-00288-WDB

        Before: Joseph T. Sneed, Mary M. Schroeder, and Richard A. Paez, Circuit Judges.

        Opinion by Judge Schroeder; Concurrence by Judge Sneed

        SCHROEDER, Circuit Judge

        Plaintiffs challenge the constitutionality of an Arizona statute that criminalizes any medical "experimentation" or "investigation" involving fetal tissue from induced abortions unless necessary to perform a "routine pathological examination" or to diagnose a maternal or fetal condition that prompted the abortion. The plaintiffs include individuals suffering from Parkinson's disease who because of the statute are unable in Arizona to receive transplants of fetal brain tissue that many medical experts believe hold out promise for eventual amelioration or treatment of the disease. Plaintiffs also include doctors in Arizona who fear possible criminal prosecution if they provide services to their patients that the doctors would like to provide.

        The district court held on summary judgment that the statutes are unconstitutionally vague, and permanently enjoined their enforcement. It did not reach various other theories presented in plaintiffs' complaint for invalidation of the statute. In so ruling the district court followed the holdings of three other circuits that considered similar statutes and held them all unconstitutionally vague. See Jane L. v. Bangerter, 61 F.3d 1493, 1499-1502 (10th Cir. 1995), Rev'd and remanded on other grounds sub. nom., Leavitt v. Jane L., 518 U.S. 137 (1996); Margaret S. v. Edwards, 794 F.2d 994, 998-99 (5th Cir. 1986); Lifchez v. Hartigan, 735 F.Supp. 1361, 1363-76 (N.D.Ill.), aff'd mem., 914 F.3d 260 (7th Cir. 1990). In this appeal by the state, we affirm the district court holding. Its decision is published at 71 F.Supp. 2d 1015 (D. Ariz. 1999). We do not repeat the procedural background.

        The principal statute with which we are concerned is A.R.S. § 36-2302, subpart (A). It provides:

         A person shall not knowingly use any human fetus or embryo, living or dead, or any parts, organs, or fluids of any such fetus or embryo resulting from an induced abortion in any manner for any medical experimentation or scientific or medical investigation purposes except as is strictly necessary to diag nose a disease or condition in the mother of the fetus or embryo and only if the abortion was performed because of such disease or condition.

        Section 36-2302, subpart (C) provides an exception:

        This section shall not prohibit any routine pathological examinations conducted by a medical examiner or hospital laboratory provided such pathological examination is not a part of or in any way related to any medical or scientific experimentation.

        Thus the statute does not outlaw all use of fetal tissue derived from induced abortions. Instead it generally outlaws the use of such tissue for experimentation, subject to certain exceptions.

        Persons violating Section 36-2302 commit a class 5 felony, a crime punishable by one-and-a-half years in prison, and face fines up to $150,000, see A.R.S. § 36-2303. Doctors found to have violated the statute also face censure, probation, suspension of license, revocation of license,...

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