Forbes v. Woods, Civ-96-288-TUC-WDB.

• Decision Date: 30 September 1999
• Docket Number: No. Civ-96-288-TUC-WDB.,Civ-96-288-TUC-WDB.
• Citation: 71 F.Supp.2d 1015
• Parties: FORBES et al., Plaintiffs, v. Grant WOODS et al., Defendants.
• Court: U.S. District Court — District of Arizona

Page 1015

71 F.Supp.2d 1015

FORBES et al., Plaintiffs, v. Grant WOODS et al., Defendants.

No. Civ-96-288-TUC-WDB.

United States District Court, D. Arizona.

September 30, 1999.

Bebe Jill Anderson, Center for Reproductive Law & Policy, New York City, Julie Frances Kowitz, The Center for Reproductive Law & Policy, New York City, Michael O. Miller, Miller Smith LLP, Tucson, AZ, for plaintiffs.

Bruce L. Skolnik, Charlres R. Pyle, Atty. General's Office, Tucson, AZ, for defendants.

ORDER

WILLIAM D. BROWNING, Senior District Judge.

I. Factual and Procedural Background

Pending before the Court are Defendants' January 14, 1998 Motion for Summary Judgment and Plaintiffs' January 14, 1998 Motion for Summary Judgment. Ten Plaintiffs have asked the Court to determine that A.R.S. § 36-2302 (experimentation on human fetus or embryo prohibited; physician-patient privilege inapplicable), A.R.S. § 32-1401(25)(x) (fetal experiments in violation of § 36-2302 is unprofessional conduct), and A.R.S. § 32-1854(45) (defining fetal experiments in violation of § 36-2302 as unprofessional conduct whether occurring in this state or elsewhere) are unconstitutional because they violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment. After a hearing on February 23, 1998, the Court certified a defendant class of all County Attorneys who have the authority to enforce A.R.S. § 36-2303, (making it a class 5 felony to use any human fetus or embryo or part thereof resulting from an induced abortion in any manner for medical experimentation) in their official capacities, with the Attorney General as the class representative.

The Plaintiffs include: (1) four people diagnosed with Parkinson's disease: Forbes, Anderson, Bohn, and Summers; (2) Christopher Tish, a board member of the Arizona Chapter of the American Parkinson's Disease Association; (3) Planned Parenthood of Central, Northern, and Southern Arizona; and (4) three doctors: Snider, Melcher, and Tamis. Dr. Snider is a neurologist specializing in treating Parkinson's disease. Dr. Melcher is a semiretired doctor who has treated many Parkinson patients and has served as President of the Arizona Parkinson's Institute from 1987-1992. Dr. Tamis is an obstetrician-gynecologist in private practice specializing in treatments for infertility, who was investigated under the statutes at issue for conducting a study to learn if hypertension drugs cross the placenta barrier. In this study, Dr. Tamis asked women who had decided to terminate second trimester pregnancies if they would be willing to take a pill. The pill was administered shortly before the abortion, and after the abortion Dr. Tamis took a sample of the blood from the placenta. The blood sample was sent to a pharmaceutical company to test whether the medication had entered the placenta. All of the doctors brought this suit on behalf of themselves and their patients. The Attorney General is the defendant class representative, representing all Arizona County Attorneys and the Attorney General's Office.

The challenged statutes criminalize and classify as unprofessional conduct, medical or scientific experimentation or investigation involving a human fetus or embryo resulting from an induced abortion. Plaintiffs allege that these statutes are vague and confusing, serve no legitimate purpose, chill certain medical procedures, and prevent physicians from providing important health services. Plaintiffs make six claims.

1. The challenged statutes fail to specify which medical procedures constitute "experimentation" or "investigation." They also fail to define what constitutes a "routine pathological examination." Thus, § 36-2302 does not identify which pathological examinations of fetal tissue are prohibited. Therefore, the statutes fail to give physicians and researchers fair warning of prohibited acts and are susceptible to arbitrary enforcement, in contravention of the right to Due Process under the Fourteenth Amendment.

2. The challenged statutes prevent patients from receiving critical medical care without compelling or even rational justification, thus violating Plaintiffs' rights to privacy and liberty guaranteed under the Fourteenth Amendment.

3. The statutes also infringe upon Plaintiffs' Fourteenth Amendment rights to privacy and liberty without compelling justification by preventing women from obtaining various medical services that would enable them to make reproductive health decisions and to choose childbirth.

4. The statutes violate Plaintiffs' Fourteenth Amendment rights to privacy and liberty by denying women necessary and appropriate information about maternal and fetal health.

5. The challenged statutes violate the Due Process Clause of the Fourteenth Amendment by interfering with physicians' right to practice their profession by preventing them from conducting research and rendering medical services that are in the best interest of their patients.

6. These statutes constitute unwarranted governmental interference with a woman's right to make anatomical gifts by forbidding women who have induced abortions from making donations although no such restrictions apply to women who spontaneously abort or whose children are stillborn or die after birth, in violation of the Equal Protection Clause of the Fourteenth Amendment.

Plaintiffs seek declaratory judgment that A.R.S. §§ 36-2302, 32-1401(25), and 32-1854(45) are unconstitutional. They also seek a permanent injunction against the Defendants, preventing them from enforcing the statutes. Additionally, Plaintiffs seek such other relief as the Court may deem appropriate, including reasonable attorney's fees and costs.

II. Summary Judgment Standard

Summary judgment is proper where no genuine issue as to any material fact exists and the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The initial burden rests on the moving party to point out the absence of any genuine issue of material fact, but the moving party need not support its motion with affidavits or other supporting materials. See Fed.R.Civ.P. 56(a); Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once satisfied, the burden shifts to the opponent to demonstrate through production of probative (and admissible) evidence that an issue of fact remains to be tried. See Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548. The non-moving party may not rest on mere denials of the movant's pleadings, but must respond asserting specific facts showing a genuine issue exists precluding a grant of summary judgment. See Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The Court must accept the nonmovant's evidence as true and view all inferences in the light most favorable to the non-movant. Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1289 (9th Cir.1987).

III. Discussion

A.R.S. § 36-2302, Experimentation on human fetus or embryo prohibited; physician-patient privilege inapplicable

A. 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 diagnose 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.

B. The physician-patient privilege as provided in § 13-4062, paragraph 4 shall not prevent the production of documents or records relevant to an investigation arising under this section. All documents or records produced in an action brought pursuant to this section shall be inspected by the court in camera, and before the documents or records are released to the requesting party, the court shall remove the names and other identifying information, if any, of the patients and substitute pseudonyms.

C. This section shall not prohibit 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.

A.R.S. § 36-2303. Violation; classification

Any person who violates any provision of this article is guilty of a class 5 felony.

A.R.S. § 32-1401 Definitions

25. "Unprofessional conduct" includes the following, whether occurring in this state or elsewhere: ...

(x) Fetal experiments conducted in violation of § 36-2302.

A.R.S. § 32-1854. Definition of unprofessional conduct.

"Unprofessional conduct" includes the following acts, whether occurring in this state or elsewhere: ...

45. Fetal experiments conducted in violation of § 36-2302.

Is A.R.S. § 36-2302 Unconstitutionally Vague?

A law is void for vagueness in violation of Due Process where "persons of common intelligence must necessarily guess at meaning and differ as to application." Smith v. Goguen, 415 U.S. 566, 572 n. 8, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974) (citations omitted). Due process requires that laws provide persons subject to regulation with a "reasonable opportunity to know what [conduct] is prohibited, so that [they] may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Women's Medical Professional Corp. v. Voinovich, 911 F.Supp. 1051, 1063 (S.D.Ohio 1995). Due process requires that a law must be sufficiently defined "to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute." Colautti v. Franklin, 439 U.S. 379, 390, 99 S.Ct. 675, 58 L.Ed.2d 596 (1979); see also Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). Additionally, the law must define the prohibited conduct with sufficient definiteness that it does not encourage arbitrary or discriminatory enforcement. See Kolender, 461 U.S. at 357, 103 S.Ct. 1855; Colautt...