Tucson Women's Center v. Arizona Medical Bd.
| Decision Date | 30 September 2009 |
| Docket Number | No. CV-09-1909-PHX-DGC.,CV-09-1909-PHX-DGC. |
| Parties | TUCSON WOMEN'S CENTER; Family Planning Associates; William Richardson, M.D.; Paul A. Isaacson, M.D.; and Frank Laudonio, M.D., Plaintiffs, v. ARIZONA MEDICAL BOARD; Lisa Wynn, in her official capacity as Executive Director of the Arizona Medical Board; and Terry Goddard, in his official capacity as Attorney General of Arizona, Defendants. |
| Court | U.S. District Court — District of Arizona |
v.
ARIZONA MEDICAL BOARD; Lisa Wynn, in her official capacity as Executive Director of the Arizona Medical Board; and Terry Goddard, in his official capacity as Attorney General of Arizona, Defendants.
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Aimee H. Goldstein, Elizabeth Joanne Owen, James G. Gamble, Janelle Filson, Jayma M. Meyer, Meryl Rosen, Sarah Dunn, Simpson Thacher & Bartlett LLP, Jordan R. Goldberg, Suzanne Ilene Novak, New York, NY, Christopher Alan Lavoy, Lavoy & Chernoff PC, Phoenix, AZ, for Plaintiffs.
Carrie Jane Brennan, Gregory David Honig, Mary Ruth O'Grady, Paula S. Bickett, Office of the Attorney General, Phoenix, AZ, for Defendants.
DAVID G. CAMPBELL, District Judge.
Arizona House Bill 2564 ("the Act") amends Arizona law relating to abortions. The Act was passed by the Arizona Legislature and signed by the Governor in July 2009, and becomes effective today. Among other things, the Act adds A.R.S. § 36-2153.
Section 36-2153(A) prohibits, except in the case of a medical emergency, the performance of an abortion unless, at least 24 hours before the abortion, the patient gives consent after having received certain statutorily-prescribed information. Section 36-2153(D) then provides:
A person shall not write or communicate a prescription for a drug or drugs to induce an abortion or require or obtain payment for a service provided to a patient who has inquired about an abortion or scheduled an abortion until the expiration of the twenty-four hour reflection period required by subsection A.
A.R.S. § 36-2153(D).
Plaintiffs challenge the payment provision of section 36-2153(D) as unconstitutionally vague. Dkt. # 1 ¶¶ 70-76, 81-82. No Arizona appellate court has interpreted section 36-2153(D). The meaning of that provision presents a question of state law that may be determinative of a claim in this action. Pursuant to A.R.S. § 12-1861 and Rule 27 of the Rules of the Arizona Supreme Court, the Court certifies the following question to the Arizona Supreme Court:
Whether the payment provision of A.R.S. § 36-2153(D) applies only when the informed consent and 24-hour waiting period of A.R.S. § 36-2153(A) is triggered by the actual providing or inducing of an abortion, or whether it applies outside the abortion context whenever an inquiry about abortion is made to a health care provider.
Because the certified question is one of law, the Court will not provide a statement of facts. See Ariz. R. Sup.Ct. 27(3)(B). The Court addressed the interpretation of A.R.S. § 36-2153(D) in an order dated September 29, 2009, a copy of which is attached to this order. The following is a list of counsel appearing in this matter. See Ariz. R. Sup.Ct. 27(3)(C).
Counsel for Plaintiffs:
Suzzane Novak and Jordan Goldberg, Center for Reproductive Rights, 120 Wall Street, 14th Floor, New York, N.Y. 10005, (917) 637-3600.
Aimee Goldstein, James Gamble, and Jayma Meyer, Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, N.Y. 10017, (212) 455-2000.
Christopher Lavoy, Lavoy & Chernoff PC, 201 North Central Avenue, Suite 3300, Phoenix, AZ 85004, (602) 253-3330.
Counsel for Defendants:
Paula Bickett, Carrie Brennan, Gregory Honig, and Mary O'Grady, Office of the Attorney General, 1275 West Washington Street, Phoenix, AZ 85007, (602) 542-3333.
IT IS ORDERED:
1. The following question is certified to the Arizona Supreme Court pursuant to A.R.S. § 12-1861 and Rule 27
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of the Rules of the Arizona Supreme Court: Whether the payment provision of A.R.S. § 36-2153(D) applies only when the informed consent and 24-hour waiting period of A.R.S. § 36-2153(A) is triggered by the actual providing or inducing of an abortion, or whether it applies outside the abortion context whenever an inquiry about abortion is made to a health care provider.
2. The Clerk is directed to file with the Arizona Supreme Court the original and six copies of this certification order. The Clerk shall transmit to the Arizona Supreme Court the original or copies of such other portions of the Court's record as the Arizona Supreme Court may deem necessary to a determination of the certified question.
Arizona House Bill 2564, which will be referred to in this order as "the Act," amends Arizona law relating to abortions. The Act was passed by the Arizona Legislature and signed by the Governor in July of 2009, and becomes effective tomorrow. Among other things, the Act prohibits an abortion unless the patient has received certain statutorily-prescribed information, has then waited 24 hours before receiving an abortion, and has consented to the abortion in writing. A.R.S. § 36-2153(A). The 24-hour waiting period does not apply in cases of medical emergency as defined in the Act. Id.; A.R.S. § 36-2151(5). The Act also states that a person who provides services to a patient who has inquired about or scheduled an abortion may not obtain payment for those services until after the 24-hour waiting period has expired. A.R.S. § 36-2153(D).
Plaintiffs claim that the 24-hour provision unconstitutionally burdens a woman's right to an abortion and that the payment provision is unconstitutionally vague. Plaintiffs ask the Court to enter a preliminary injunction prohibiting enforcement of these provisions. For reasons set forth below, the Court concludes that Plaintiffs have failed to show that they are likely to prevail on the merits of these constitutional claims. The Court therefore will deny Plaintiffs' request for a preliminary injunction. The Court will certify to the Arizona Supreme Court a question concerning the proper construction of the payment provision.
I. Parties and Proceedings.
Plaintiff Tucson Women's Center is a medical facility that offers a variety of reproductive healthcare services, including abortions. Plaintiff William Richardson, M.D., operates the center and is a physician licensed to practice medicine in Arizona. Plaintiff Family Planning Associates is a reproductive healthcare facility located in Phoenix. Plaintiff Paul Isaacson, M.D., a licensed physician, is a co-owner of the facility. Plaintiff Frank Laudonio, M.D., is a licensed physician certified in obstetrics and gynecology who provides referrals for abortions, but does not perform them himself.
On September 14, 2009, Plaintiffs filed a complaint challenging the constitutionality of various provisions of the Act including, among others, the 24-hour waiting period and the payment provision. Dkt. # 1. Plaintiffs bring the complaint under 42 U.S.C. § 1983 and the United States Constitution. Id. ¶ 2. All Plaintiffs except Dr. Laudonio sue on their own behalf and on behalf of their respective patients. Id. ¶¶ 14-18.
Defendants are the Arizona Medical Board, Lisa Wynn in her official capacity as the Executive Director of the Board, and Arizona Attorney General Terry Goddard. The Arizona Medical Board is responsible for enforcing the Act.
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Certain other individuals and groups have sought to intervene in this case as defendants. They include the American Association of Pro-Life Obstetricians and Gynecologists, Catholic Medical Association, Christian Medical and Dental Associations, Christian Pharmacists Fellowship International, Ave Maria Pharmacy, PLLC, Arizona Catholic Conference, Crisis Pregnancy Centers of Greater Phoenix, Senator Linda Gray, and Representative Nancy Barto. Because time did not permit the briefing and consideration of their request to intervene before the preliminary injunction motion must be resolved, the Court permitted these groups to file a memorandum as amicus curiae. Dkt. #44.
Plaintiffs filed their motion for preliminary injunction on September 14, 2009, and seek a ruling before the Act's effective date of September 30, 2009. Dkt. ## 5-6. Defendants have filed a response in opposition to the motion (Dkt. # 51), the proposed intervenors have filed an opposing memorandum (Dkt. # 52), and Plaintiffs have filed a reply (Dkt. # 56). The Court held oral argument on September 29, 2009.
II. Preliminary Injunction Standard.
Plaintiffs bear the burden of establishing their right to a preliminary injunction. Plaintiffs must show that (1) they are likely to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in their favor, and (4) an injunction is in the public interest. See Winter v. NRDC, Inc., ___ U.S. ___, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008); Am. Trucking Ass'ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir.2009).
III. Twenty-Four Hour Informed Consent Period.
The Act provides that "[a]n abortion shall not be performed or induced without the voluntary and informed consent of the [patient]." A.R.S. § 36-2153(A). Except in the case of a medical emergency, consent to an abortion is informed only if two conditions are met. The conditions can be summarized as follows:
1. At least twenty-four hours before the abortion, the physician who is to perform the abortion or the referring physician must inform the woman of (a) the name of the physician who will perform the abortion, (b) the nature of the proposed procedure, (c) the immediate and long-term medical risks associated with the procedure, (d) alternatives to the procedure, (e) the probable gestational age of the unborn child, (f) the probable anatomical and physiological characteristics of the unborn child, and (g) the medical risks associated with carrying the child to term.
2. At least twenty-four hours before the abortion, the physician who is to perform the abortion, the referring physician, or a delegated medical professional, must inform the woman...
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