Isaacson v. Horne

• Decision Date: 21 May 2013
• Docket Number: No. 12–16670.,12–16670.
• Citation: 716 F.3d 1213
• Parties: Paul A. ISAACSON, M.D.; William Clewell, M.D.; Hugh Miller, M.D., Plaintiffs–Appellants, v. Tom HORNE, Attorney General of Arizona, in his official capacity; William Gerard Montgomery, County Attorney for Maricopa County, in his official capacity; Barbara Lawall, County Attorney for Pima County, in her official capacity; Arizona Medical Board; Lisa Wynn, Executive Director of the Arizona Medical Board, in her official capacity, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

716 F.3d 1213

Paul A. ISAACSON, M.D.; William Clewell, M.D.; Hugh Miller, M.D., Plaintiffs–Appellants,

v.Tom HORNE, Attorney General of Arizona, in his official capacity; William Gerard Montgomery, County Attorney for Maricopa County, in his official capacity; Barbara Lawall, County Attorney for Pima County, in her official capacity; Arizona Medical Board; Lisa Wynn, Executive Director of the Arizona Medical Board, in her official capacity, Defendants–Appellees.

No. 12–16670.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Nov. 5, 2012.

Filed May 21, 2013.

Held Unconstitutional

A.R.S. § 36–2159.

Janet Crepps (argued) and David Brown, Center for Reproductive Rights, New York, NY; Christopher A. Lavoy, Tiffany & Bosco, P.A., Phoenix, AZ; Janie F. Shulman and Nancy R. Thomas, Morrison & Foerster LLP, Los Angeles, CA, for Plaintiff–Appellant Paul A. Isaacson.

Susan Talcott Camp and Alexa Kolbi–Molinas, American Civil Liberties Union Foundation, New York, NY; Daniel Pochoda and Kelly Flood, American Civil Liberties Union Foundation of Arizona, Phoenix, AZ, for Plaintiffs–Appellants William Clewell and Hugh Miller.

David R. Cole (argued), Solicitor General; Thomas M. Collins, Assistant Attorney General, Arizona Attorney General's Office, Phoenix, AZ, for Defendants–Appellees Thomas C. Horne, Arizona Attorney General, Arizona Medical Board, and Lisa Wynn, Executive Director of the Arizona Medical Board.

William G. Montgomery (argued), County Attorney for Maricopa County; Douglas L. Irish, J. Kenneth Mangum, Louis F. Comus III, Deryck R. Lavelle, and Bruce P. White, Maricopa County Attorney's Office, Phoenix, AZ, for Defendant–Appellee William Montgomery.

Paula J. Perrera (argued), Deputy County Attorney, Pima County Attorney's Office, Tucson, AZ, for Defendant–Appellee Barbara LaWall.

Beth H. Parker and Gabriel N. White, Arnold & Porter LLP, San Francisco, CA; Lisa Hill Fenning, Los Angeles, CA; Kimberley A. Parker, Susan Friedman, and Carolyn Jacobs Chachkin, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Alan E. Schoenfeld and Fiona J. Kaye, New York, NY, for Amici Curiae American College of Obstetricians and Gynecologists and American Congress of Obstetricians and Gynecologists.

Denise M. Burke, Mailee R. Smith, and Clarke D. Forsythe, Americans United for Life, Washington, D.C., for Amici Curiae Association of American Physicians & Surgeons, American Association of Pro–Life Obstetricians and Gynecologists, Christian Medical & Dental Associations, Catholic Medical Association, Physicians for Life, and National Association of Prolife Nurses.

David J. Cantelme, Cantelme & Browne, P.L.C., Joshua A. Kredit, Center for Arizona Policy, Inc., Phoenix, AZ, for Amicus Curiae Center for Arizona Policy, Inc.

Teresa Stanton Collett, University of St. Thomas School of Law, Minneapolis, MN; Steven H. Aden and M. Casey Mattox, Alliance Defending Freedom, Washington, D.C., for Amicus Curiae Doctors on Fetal Pain.

Gregrey G. Jernigan, General Counsel, Office of the President of the Arizona State Senate, Peter A. Gentala, Office of the Speaker of the Arizona House of Representatives, Phoenix, AZ, for Amici Curiae Andrew M. Tobin, Speaker of the Arizona House of Representatives, and Steve Pierce, President of the Arizona Senate.

Mathew D. Staver and Anita L. Staver, Liberty Counsel, Maitland, FL; Stephen M. Crampton and Mary E. McAlister, Liberty Counsel, Lynchburg, VA, for Amicus Curiae Liberty Counsel.

Appeal from the United States District Court for the District of Arizona, James A. Teilborg, District Judge, Presiding.

Before: MARY M. SCHROEDER, ANDREW J. KLEINFELD, and MARSHA S. BERZON, Circuit Judges.

OPINION

BERZON, Circuit Judge:

Our question is whether the Constitution permits the Arizona legislature to prohibit abortion beginning at twenty weeks gestation, before the fetus is viable. We hold that it does not.

Arizona House Bill 2036 (“H.B.2036” or “the Act”), enacted in April 2012, forbids, except in a medical emergency, abortion of a fetus determined to be of a gestational age of at least twenty weeks. Arizona law separately prohibits abortions after fetal viability unless necessary to preserve the pregnant woman's life or health. SeeAriz.Rev.Stat. § 36–2301.01(A)(1). The challenged provision in Section 7 of H.B.2036 (“Section 7” or “the twenty-week law”) ¹ extends the abortion ban earlier in pregnancy, to the period between twenty weeks gestation and fetal viability. Because Section 7 deprives the women to whom it applies of the ultimate decision to terminate their pregnancies prior to fetal viability, it is unconstitutional under a long line of invariant Supreme Court precedents.

Since Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the Supreme Court case law concerning the constitutional protection accorded women with respect to the decision whether to undergo an abortion has been unalterably clear regarding one basic point, although it has varied in other respects: a woman has a constitutional right to choose to terminate her pregnancy before the fetus is viable. A prohibition on the exercise of that right is per se unconstitutional. While the state may regulate the mode and manner of abortion prior to fetal viability, it may not proscribe a woman from electing abortion, nor may it impose an undue burden on her choice through regulation.

The challenged Arizona statute's medical emergency exception does not transform the law from a prohibition on abortion into a regulation of abortion procedure. Allowing a physician to decide if abortion is medically necessary is not the same as allowing a woman to decide whether to carry her own pregnancy to term. Moreover, regulations involve limitations as to the mode and manner of abortion, not preclusion of the choice to terminate a pregnancy altogether. Arizona's twenty-week law is a preclusion prior to fetal viability and is thus invalid under binding Supreme Court precedent.

The district court erred in denying declaratory and injunctive relief and entering judgment in favor of the State. We therefore reverse.

Background

I.

On April 12, 2012, Arizona Governor Jan Brewer signed H.B.2036 into law, amending title 36, chapter 20, article 1 of the Arizona Revised Statutes, which governs the availability and performance of abortions in the state. The Act was to go into effect on August 2, 2012, but we granted an emergency injunction on August 1, 2012, staying enforcement of the challenged provision pending this appeal.

The challenged portion of Section 7, codified at Arizona Revised Statutes § 36–2159, reads:

A. Except in a medical emergency, a person shall not perform, induce or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn child. In making that determination, the physician or referring physician shall make any inquiries of the pregnant woman and perform or cause to be performed all medical examinations, imaging studies and tests as a reasonably prudent physician in the community, knowledgeable about the medical facts and conditions of both the woman and the unborn child involved, would consider necessary to perform and consider in making an accurate diagnosis with respect to gestational age.

B. Except in a medical emergency, a person shall not knowingly perform, induce or attempt to perform or induce an abortion on a pregnant woman if the probable gestational age of her unborn child has been determined to be at least twenty weeks.

Ariz.Rev.Stat. § 36–2159. Arizona law defines “medical emergency” as:

a condition that, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.

Ariz.Rev.Stat. § 36–2151(6). The stated purpose of the Act is to “[p]rohibit abortions at or after twenty weeks of gestation, except in cases of a medical emergency, based on the documented risks to women's health and the strong medical evidence that unborn children feel pain during an abortion at that gestational age.” H.B.2036, sec. 9(B)(1).² The Act lists a number of legislative findings in support of the assertions in the purpose provision, with citations to medical research articles. See H.B.2036, sec. 9(A)(1)-(7).

II.

The plaintiffs in this action are three board-certified obstetrician-gynecologists who practice in Arizona (“the Physicians”). In July 2012, they filed suit in the United States District Court for the District of Arizona, seeking declaratory and injunctive relief against enforcement of Section 7 on behalf of themselves and of their patients wishing to terminate pre-viability ³ pregnancies at or after twenty weeks.⁴ Their complaint named three state defendants and two county defendants: the Attorney General of Arizona, Tom Horne; the Arizona Medical Board; and the Executive Director of the Arizona Medical Board, Lisa Wynn (collectively “State Defendants”); the County Attorney for Pima County, Barbara LaWall; and the County Attorney for Maricopa County, William Montgomery.

In their respective practices, each of the Physicians performs abortions before fetal viability and at and after twenty weeks gestational age. They assert that their patients seek pre-viability abortions “for a variety of reasons, including that continuation of the pregnancy poses a threat to their health, that the fetus has been diagnosed with a medical condition or anomaly, or that they are losing the pregnancy (‘miscarrying’).” Under Arizona's twenty-week law, the complaint alleges, these women will be unable to terminate their pregnancies before fetal viability unless they have a medical emergency falling within the Act's narrow exception. Therefore, the Physicians assert, the law violates their...