Planned Parenthood Ariz., Inc. v. Brnovich

• Decision Date: 23 March 2016
• Docket Number: No. CV-15-01022-PHX-SPL,CV-15-01022-PHX-SPL
• Citation: 172 F.Supp.3d 1075
• Parties: Planned Parenthood Arizona, Inc., et al., Plaintiffs, v. Mark Brnovich, et al., Defendants.
• Court: U.S. District Court — District of Arizona

172 F.Supp.3d 1075

Planned Parenthood Arizona, Inc., et al., Plaintiffs,

v.Mark Brnovich, et al., Defendants.

No. CV-15-01022-PHX-SPL

United States District Court, D. Arizona.

Signed March 23, 2016

Alice Clapman, Helene Krasnoff, Planned Parenthood Federation of America, Kimberly Parker, Skye Perryman, Tiffany Payne, Wilmer Cutler Pickering Hale & Dorr LLP, Washington, DC, Andrew D. Beck, Brigitte Amiri, ACLU, David Brown, Hillary Anne Schneller, Center for Reproductive Rights, Diana Salgado, Planned Parenthood Federation of America, Susan Talcott Camp, American Civil Liberties Union, New York, NY, Daniel Benjamin Pasternak, Lawrence Jay Rosenfeld, Squire Patton Boggs (US) LLP, Daniel Joseph Pochoda, Victoria Lopez, ACLU, Phoenix, AZ, for Plaintiffs.

Aubrey Joy Corcoran, Kevin D. Ray, John R. Tellier, Office of the Attorney General, Phoenix, AZ, for Defendants.

ORDER

Honorable Steven P. Logan, United States District Judge

At issue are Motions to Dismiss filed by Defendants Mark Brnovich, Cara Christ, M.D., Patricia E. McSorley, Richard T. Perry, James Gillard, Jodi A. Bain, Marc D. Berg, Donna Brister, R. Screven Farmer, Gary R. Figge, Robert E. Fromm, Paul S. Gerding, Lois Krahn, Edward G. Paul, and Wanda J. Salter. (Docs. 40, 41, 44, 46.) Plaintiffs Planned Parenthood Arizona, Inc., Desert Star Family Planning, LLC, Eric Reuss, Paul A. Isaacson, and DeShawn Taylor, have also filed a Motion for Leave to Amend the Complaint (Doc. 81), which Defendants oppose. The motions are fully briefed, and will be addressed jointly as follows.

I. Background

A. Arizona Informed Consent Law

Arizona law requires that an abortion shall not be performed or induced without the voluntary and informed consent of the woman seeking the procedure, certified in writing. Ariz. Rev. Stat. § 36–2153(A)(4). With exception to instances involving a medical emergency, consent is voluntary and informed only if, at least twenty-four hours before an abortion, the woman has been informed orally and in person, individually and in private, of two categories of information. Ariz. Rev. Stat. § 36–2153(A)(1)–(3).¹

First, the woman must be informed by the physician who is to perform the abortion, or the referring physician, of:

(a) The name of the physician who will perform the abortion.

(b) The nature of the proposed procedure or treatment.

(c) The immediate and long-term medical risks associated with the procedure that a reasonable patient would consider material to the decision of whether or not to undergo the abortion.

(d) Alternatives to the procedure or treatment that a reasonable patient would consider material to the decision of whether or not to undergo the abortion.

(e) The probable gestational age of the unborn child at the time the abortion is to be performed.

(f) The probable anatomical and physiological characteristics of the unborn child at the time the abortion is to be performed.

(g) The medical risks associated with carrying the child to term.

Ariz. Rev. Stat. § 36–2153(A)(1).

Second, the woman must be informed by the physician who is to perform the abortion, a qualified physician, physician assistant, nurse, psychologist, or licensed behavioral health professional delegated with authority by the physician, that:

(a) Medical assistance benefits may be available for prenatal care, childbirth and neonatal care.

(b) The father of the unborn child is liable to assist in the support of the child, even if he has offered to pay for the abortion. In the case of rape or incest, this information may be omitted.

(c) Public and private agencies and services are available to assist the woman during her pregnancy and after the birth of her child if she chooses not to have an abortion, whether she chooses to keep the child or place the child for adoption.

(d) It is unlawful for any person to coerce a woman to undergo an abortion.

(e) The woman is free to withhold or withdraw her consent to the abortion at any time without affecting her right to future care or treatment and without the loss of any state or federally funded benefits to which she might otherwise be entitled.

(f) The department of health services maintains a website that describes the unborn child and lists the agencies that offer alternatives to abortion.

(g) The woman has a right to review the website and that a printed copy of the materials on the website will be provided to her free of charge if she chooses to review these materials.

Ariz. Rev. Stat. § 36–2153(A)(2).² The Arizona Department of Health Services (“ADHS”) must establish and “annually update a website that includes a link to a printable version of all materials listed [in the informed consent statute] on the website.” Ariz. Rev. Stat. § 36–2153(C).

In 2015, the Arizona legislature passed Senate Bill 1318, a set of statutory amendments regulating abortion that was signed in to law by the Governor on March 30, 2015. Ariz. Legis. Serv. Ch. 87 (S.B. 1318) (2015). The requirements for obtaining a patient's informed consent was amended to include that a woman must also be informed that:

(h) It may be possible to reverse the effects of a medication abortion if the woman changes her mind but that time is of the essence.

(i) Information on and assistance with reversing the effects of a medication abortion is available on the department of health services' website.

S.B. 1318 § 4 (codified at Ariz. Rev. Stat. § 36–2153(A)(2)(h) and (i) ). Further, ADHS must include on their website:

Information on the potential ability of qualified medical professionals to reverse a medication abortion, including information directing women where to obtain further information and assistance in locating a medical professional who can aid in the reversal of a medication abortion.

S.B. 1318 § 4 (codified at Ariz. Rev. Stat. § 36–2153(C)(8) ).

B. Plaintiffs' Challenge to the Act

Plaintiffs commenced the instant action challenging the amended provisions codified at Ariz. Rev. Stat. § 36–2153(A)(2)(h) and (i), otherwise referred to by the parties and this Court as “the Act.”³ (Doc. 1.) Plaintiffs claim that the Act violates physicians' rights under the First Amendment, and the rights of patients seeking abortions under the Fourteenth Amendment. (Docs. 1 ¶ 57, 59; 81-1 ¶ 61, 63.)⁴ Plaintiffs seek injunctive and declaratory relief, asking that enforcement of the Act be permanently enjoined, and the Act be declared unconstitutional.

Plaintiffs include two health care facilities and three physicians. Planned Parenthood Arizona, Inc. is a nonprofit corporation that provides reproductive, sexual health, and abortion services. It provides both surgical and medication abortions at four of its health centers, which are licensed by ADHS. It employs obstetricians and gynecologists licensed to practice medicine by the Arizona Medical Board.

Planned Parenthood sues on behalf of itself, its patients, and its physicians. (Docs. 1 ¶ 7; 81-1 ¶ 7.) Desert Star Family Planning, LLC, is a private physician practice that provides comprehensive family planning and health services, including abortion services, and is licensed by ADHS. It employs board-certified obstetricians and gynecologists. Desert Star sues on behalf of itself, its physicians, and its patients. (Docs. 1 ¶ 10; 81-1 ¶ 10.) Plaintiffs Eric Reuss, M.D., M.P.H., Paul A. Isaacson, M.D., and DeShawn Taylor, M.D. (“Physician-Plaintiffs”), are board-certified obstetricians and gynecologists that perform abortions and are licensed to practice medicine in Arizona. They sue on their own behalf and on behalf of patients. (Docs. 1 ¶¶ 8, 9, 10; 81-1 ¶¶ 8, 9, 10.)

On the basis of their alleged statutory authority to enforce the Act, Plaintiffs sue the members of the Arizona Medical Board, the Executive Director of the Arizona Medical Board, the Arizona Attorney General, and the Director of ADHS.⁵ (Doc. 1 ¶¶ 11-14; 81-1 ¶¶ 11-14.)

Before the Act was to take effect on July 3, 2015, pursuant to the stipulation of the parties, the Court entered a temporary restraining order enjoining enforcement of the Act (Doc. 32). Also on request of the parties, the temporary restraining order was lifted and the Court entered an order of preliminary injunction (Doc. 107) enjoining enforcement of the Act pending final judgment on the merits.

II. Present Issues in Dispute

Defendants have each individually moved to dismiss some or all of the claims brought against them on the basis that they are improper parties to this action. (Docs. 40, 41, 44, 46.) Defendants also challenge Plaintiffs' standing. (See Docs. 87 at 5 n.2; 60 at 31-33; 73.)⁶

First, Defendants move to dismiss on the basis that Plaintiffs “have failed to properly assert any claims under 42 U.S.C. § 1983.” (Docs. 41 at 3; 44 at 3; 46 at 3.) A plaintiff may bring a cause of action under 42 U.S.C. § 1983 to seek redress for the deprivation of a right protected by the Constitution or laws of the United States caused by a person acting under color of state law. Crumpton v. Gates , 947 F.2d 1418, 1420 (9th Cir.1991). “Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method for vindicating federal rights elsewhere conferred.’ ” Albright v. Oliver , 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Baker v. McCollan , 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979) ). Defendants argue that Plaintiffs fail to sufficiently state a § 1983 claim because they do not set forth the statutory elements and “make reference to 42 U.S.C. § 1983 only once.” (Docs. 41 at 7; 44 at 8; 46 at 8.) This argument is flatly rejected. Plaintiffs allege that they bring a cause of action under 42 U.S.C. § 1983 for declaratory relief declaring the Act unconstitutional, and for prospective injunctive relief restraining Defendants, and their employees, agents, and successors in office from enforcing the Act, which, unless enjoined, will violate their First and Fourteenth Amendment rights. (Docs. 1 ¶¶ 1-4 and § VI; 81-1 ¶¶ 1-4 and § VI.) Nothing more is required. SeeJohnson v. City...