Isaacson v. Brnovich
| Decision Date | 28 September 2021 |
| Docket Number | CV-21-01417-PHX-DLR |
| Citation | 563 F.Supp.3d 1024 |
| Parties | Paul A ISAACSON, et al., Plaintiffs, v. Mark BRNOVICH, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Emily Brooke Nestler, Pro Hac Vice, Center for Reproductive Rights, Washington, DC, Gail Marie Deady, Pro Hac Vice, Jen Samantha D. Rasay, Pro Hac Vice, Center for Reproductive Rights, New York, NY, Victoria Lopez, ACLU, Phoenix, AZ, for Plaintiffs Paul A. Isaacson, National Council of Jewish Women (Arizona Section) Incorporated, Arizona National Organization For Women.
Gail Marie Deady, Pro Hac Vice, Rebecca Chan, Pro Hac Vice, Ruth Harlow, Pro Hac Vice, Center for Reproductive Rights, New York, NY, Victoria Lopez, ACLU, Phoenix, AZ, for Plaintiff Eric M. Reuss.
Rebecca Chan, Pro Hac Vice, Ruth Harlow, Pro Hac Vice, Center for Reproductive Rights, New York, NY, Victoria Lopez, ACLU, Phoenix, AZ, for Plaintiff Arizona Medical Association.
Brunn Wall Roysden, III, Michael Shawn Catlett, Kate Blakeley Sawyer, Katlyn Jo Divis, Office of the Attorney General, Phoenix, AZ, for Defendant Mark Brnovich.
Jason Stanley Moore, Navajo County Attorneys Office, Holbrook, AZ, for Defendant Brad Carlyon.
Brian McCormack Bergin, Bergin Frakes Smalley & Oberholtzer PLLC, Phoenix, AZ, for Defendants David C. Beyer, Gary Figge.
Aubrey Joy Corcoran, Kevin D. Ray, Office of the Attorney General, Phoenix, AZ, for Defendants Arizona Department of Health Services, Don Herrington.
Plaintiffs are Drs. Paul Isaacson and Eric Reuss, obstetrician and gynecologists ("OB/GYNs") who provide abortion care in Arizona; the National Council of Jewish Women (Arizona Section), Inc. ("NCJW AZ"), and the Arizona National Organization of Women ("AZ NOW"), which are non-profit organizations that, among other things, support and advocate for reproductive rights and care; and the Arizona Medical Association. (Doc. 1 ¶¶ 13-16, 18.)1 At issue is Plaintiffs’ motion for a preliminary injunction (Doc. 10), which is fully briefed (Docs. 46, 48). The parties agreed that an evidentiary hearing is unnecessary and that the Court could resolve Plaintiffs’ motion based on the evidence submitted with the briefs. (Doc. 18 ¶ 4(c).) This evidence consists of declarations from Drs. Isaacson and Reuss, Dr. Katherine Glaser (another OB/GYN who offers abortion services in Arizona), AZ NOW State Political Action Coordinator Dianne Post, NCJW AZ President Civia Tamarkin, Arizona Medical Association President Dr. Miriam Anand, and Steven Baily, Chief of the Bureau of Public Health Statistics at the Arizona Department of Health Services ("ADHS"), along with a copy of ADHS's 2019 "Abortions in Arizona" report. (Docs. 10-2 and 46-1.) The Court heard oral argument telephonically on September 22, 2021. (Doc. 49.) Having considered the parties’ briefs, evidence, and presentations at oral argument, the Court will grant Plaintiffs’ motion in part and deny it in part.
In April 2021, Arizona enacted Senate Bill 1457, which makes changes to Arizona's laws governing abortion and is scheduled to take effect on September 29, 2021. S.B. 1457, 55th Leg., 1st Reg. Sess. (Ariz. 2021) (hereinafter "the Act"). On August 17, 2021, Plaintiffs filed this lawsuit against Arizona officials charged with implementing and enforcing the Act.2 (Doc. 1.) Plaintiffs challenge five sections of the Act: §§ 1, 2, 10, 11, and 13.
Section 1 of the Act provides:
as authorized under the laws of this state.
2. A woman for indirectly harming her unborn child by failing to properly care for herself or by failing to follow any particular program of prenatal care.
C. For the purposes of this section, "unborn child" has the same meaning prescribed in section 36-2151.
Act § 1; A.R.S. § 1-219.3 The Court will refer to § 1 of the Act as the "Interpretation Policy."
Section 2 of the Act amends A.R.S. § 13-3603.02 to provide that, "[e]xcept in a medical emergency," a person who "[p]erforms an abortion knowing that the abortion is sought solely because of a genetic abnormality of the child" is guilty of a class 6 felony, and a person who knowingly "[s]olicits or accepts monies to finance ... an abortion because of a genetic abnormality of the child" is guilty of a class 3 felony.4 Act § 2; A.R.S. § 13-3603.02(A)(2), (B)(2).5 The Court will refer to the former as the "Performance Provision," the latter as the "Solicitation Provision," and the two collectively as the "Criminal Liability Provisions." The penalties for a class 6 felony include imprisonment of up to two years; for a class 3 felony they include imprisonment of up to 8.75 years. A.R.S. § 13-702(D). In addition to criminal penalties, those who violate these provisions could face civil liability. Specifically, "[t]he father of the unborn child who is married to the mother at the time she receives ... an abortion because of a genetic abnormality of the child, or, if the mother has not attained eighteen years of age at the time of the abortion, a maternal grandparent of the unborn child, may bring a civil action on behalf of the unborn child to obtain appropriate relief with respect to a violation of" the Criminal Liability Provisions. Act § 2; A.R.S. § 13-3603.02(D). Further, "[a] physician, physician's assistant, nurse, counselor, or other medical or mental health professional who knowingly does not report known violations ... to appropriate law enforcement authorities" is subject to a civil fine of up to $10,000. Act § 2; A.R.S. § 13-3603.02(E). Although § 2 creates the potential for criminal and civil liability for someone performing, accepting money to finance, or failing to report the performance of an abortion because of a fetal genetic abnormality, a woman who receives an abortion because of a fetal genetic abnormality is not subject to civil or criminal liability for any violation. Act § 2; A.R.S. § 13-3603.02(F).
Section 10 of the Act amends A.R.S. § 36-2157 to prohibit a person from knowingly performing or inducing an abortion without first executing an affidavit stating the abortion is not being performed "because of a genetic abnormality of the child" and that the affiant "has no knowledge that the child to be aborted is being aborted ... because of a genetic abnormality of the child." Act § 10; A.R.S. § 36-2157(A)(1).6 The Court will refer to this as the "Affidavit Provision."
Section 11 of the Act amends A.R.S. § 36-2158, an informed consent statute that lists information a provider must tell a patient before the provider can perform an abortion. As relevant here, "[i]n the case of a woman seeking an abortion of her unborn child diagnosed with a nonlethal fetal condition," § 11 of the Act requires providers to tell such patients that § 2 of the Act "prohibits abortion ... because of a genetic abnormality
." Act § 11; A.R.S. § 3602158(A)(2)(d). The Court will refer to this as the "Notification Provision."
Finally, as relevant here, § 13 of the Act amends A.R.S. § 36-2161 by adding to a list of information that doctors performing abortions must report to ADHS the following: "Whether any genetic abnormality
of the unborn child was detected at or before the time of the abortion by genetic testing, such as maternal serum tests, or by ultrasound, such as nuchal translucency screening
, or by other forms of testing." Act § 13; A.R.S. § 36-2161(A)(25). The Court will refer to this as the "Reporting Provision," and will refer to the challenged portions of §§ 2, 10, 11, and 13 of the Act collectively as the "Reason Regulations."
Plaintiffs move to preliminarily enjoin Defendants from enforcing the Interpretation Policy and the Reason Regulations. (Doc. 10.) They argue that the Interpretation Policy is unconstitutionally vague, and that the Reason Regulations (1) violate the rights of women to terminate pre-viability pregnancies,7 (2) are unconstitutionally vague, and (3) unconstitutionally pit First Amendment rights against abortion rights by forcing women to sacrifice open and honest communication with their medical providers in order to exercise their rights to terminate pre-viability pregnancies.
To obtain a preliminary injunction, a plaintiff must show (1) a likelihood of success on the merits, (2) a likelihood that irreparable harm will occur in the absence of preliminary relief, (3) a balance of equities that favors a preliminary injunction, and (4) that the requested injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). These elements can be balanced on a sliding scale, with a stronger showing of one element offsetting a weaker showing of another, although all factors still must be satisfied. See Alliance for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1131, 1134-35 (9th Cir. 2011). A preliminary injunction order does not conclusively resolve the factual and legal issues in a case. Parties typically seek preliminary injunctions early in litigation. An order on a preliminary injunction motion reflects a court's best predictive judgment—often reached under tight time constraints and with imperfect or incomplete information—of the probability that a plaintiff ultimately will prevail on the merits. Even when a court grants a preliminary injunction, it remains possible that new facts or an intervening change or clarification of law might lead to a different result later on. A preliminary injunction merely preserves the status quo in order to avoid harm...
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