610 F.Supp.3d 1243
D. Ariz.2022Background:
- Arizona enacted A.R.S. § 1-219 (the "Interpretation Policy") in April 2021, directing that Arizona laws be interpreted to "acknowledge, on behalf of an unborn child at every stage of development, all rights, privileges and immunities available to other persons," with "unborn child" defined from conception (fusion of sperm and ovum).
- Plaintiffs are two OB-GYNs who provide abortion care and several advocacy and medical organizations; they sued seeking to enjoin the Interpretation Policy as applied to otherwise lawful abortion care.
- The court previously enjoined Arizona's fetal genetic-abnormality restrictions but declined then to enjoin § 1-219, relying on Webster; that decision was appealed and the legal landscape changed after Dobbs.
- Plaintiffs renewed a preliminary-injunction motion (as-applied) after Dobbs; the Court treated the filing under Rule 65 and analyzed vagueness and preliminary-injunction factors.
- The Court found § 1-219 unconstitutionally vague as applied to abortion providers, concluding it gives no guidance what it means to "acknowledge" unborn rights, conflicts with other Arizona laws, and invites arbitrary enforcement.
- The Court granted a preliminary injunction: defendants are enjoined from enforcing A.R.S. § 1-219 against otherwise-permissible abortion care and from retroactively enforcing it during the injunction; bond waived.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 1-219 is unconstitutionally vague | § 1-219 is so indeterminate that providers cannot know whether lawful abortions could be criminalized or otherwise punished | § 1-219 is a rule of statutory construction or precatory language and does not create enforceable obligations | Court: Likely to succeed on vagueness; § 1-219 gives no fair notice, conflicts with other statutes, and risks arbitrary enforcement |
| Whether Webster bars pre-enforcement review | Webster precludes deciding challenge before state courts interpret the provision | Defendants rely on Webster to argue premature facial challenge | Court: Webster inapplicable to a vagueness (procedural due process) as-applied challenge; prematurity doctrine doesn't defeat vagueness claim |
| Whether a rule of statutory construction is immune from vagueness review | Plaintiffs: definitions/rules of construction can cause intolerable uncertainty and are subject to vagueness scrutiny | Defendants: § 1-219 is non-substantive and therefore not subject to vagueness review | Court: Labels don't avoid due process; courts have applied vagueness to interpretive definitions (e.g., Johnson/Dimaya analogies); § 1-219 may expand reach of many laws so vagueness review applies |
| Whether preliminary-injunction factors favor relief | Plaintiffs: deprivation of due process and chilling of abortion care constitute irreparable harm; balance and public interest favor injunction | Defendants: little concrete harm from enjoining an interpretive provision; they may lose ability to enforce § 1-219 | Court: Irreparable harm, balance, and public interest favor injunction; defendants would not be prejudiced and plaintiffs face concrete chilling harms |
Key Cases Cited
- Johnson v. United States, 576 U.S. 591 (U.S. 2015) (voided residual clause in a statutory definition as unconstitutionally vague).
- Sessions v. Dimaya, 138 S. Ct. 1204 (U.S. 2018) (applied heightened vagueness scrutiny to a civil immigration definition with grave consequences).
- Webster v. Reproductive Health Services, 492 U.S. 490 (U.S. 1989) (refused pre-enforcement facial review of state preamble; signaled state courts first weigh interpretive effect).
- Dobbs v. Jackson Women's Health Organization, 142 S. Ct. 2228 (U.S. 2022) (overruled Roe and held the Constitution does not confer a right to abortion).
- SisterSong Women of Color Reprod. Justice Collective v. Kemp, 472 F. Supp. 3d 1297 (N.D. Ga. 2020) (enjoined a personhood amendment as unconstitutionally vague because it applied throughout the code).
- Village of Hoffman Estates v. Flipside, 455 U.S. 489 (U.S. 1982) (degree of vagueness tolerated depends on nature and consequences of the enactment).
- All. for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) (preliminary-injunction factors are balanced on a sliding scale).