563 F.Supp.3d 1024
D. Ariz.2021Background
- Arizona enacted S.B. 1457 (effective Sept. 29, 2021), adding an "Interpretation Policy" recognizing unborn children’s rights and a set of "Reason Regulations" restricting abortion-related conduct tied to fetal genetic abnormalities (criminal penalties, an affidavit requirement, a notice provision, and expanded reporting).
- Plaintiffs are two OB/GYNs who provide abortions in Arizona, reproductive-rights organizations, and the Arizona Medical Association; they seek a preliminary injunction against enforcement of the Interpretation Policy and the Reason Regulations as to genetic abnormalities.
- Key challenged provisions: (1) Criminal Liability (performance and solicitation felonies and reporting duties); (2) Affidavit requirement swearing abortion is not "because of a genetic abnormality"; (3) Notification (misstating that §2 prohibits abortions for genetic abnormalities); (4) Reporting requirement to ADHS about detected genetic abnormalities.
- Plaintiffs argue the Interpretation Policy is facially vague; they also argue the Reason Regulations are vague, unduly burden pre-viability abortion rights, and chill doctor–patient communication (First Amendment concerns).
- The parties agreed no evidentiary hearing was necessary; the court decided the preliminary injunction motion on submitted declarations, briefs, and oral argument.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Interpretation Policy (A.R.S. §1-219) is unconstitutionally vague on its face | Isaacson: policy will render many Arizona laws vague and invite arbitrary enforcement | Brnovich: similar to Missouri preamble in Webster; challenges must be as-applied and Arizona courts should construe it first | Denied — facial challenge denied; court follows Webster and requires as-applied challenges |
| Whether Criminal Liability, Affidavit, and Reporting provisions are unconstitutionally vague | Isaacson: "genetic abnormality" undefined in practice; scienter ("knowingly") and mixed/multi-step diagnostics make notice impossible; chills providers | Brnovich: statute is clear in application; knowledge requires explicit disclosure; not ripe for facial vagueness | Granted — court finds they are likely void for vagueness and preliminarily enjoins enforcement as to genetic abnormalities |
| Whether the Reason Regulations impose an undue burden on pre-viability abortion rights | Isaacson: notification misleads patients, chills providers, shrinks provider pool, and delays care past viability | Brnovich: law does not ban abortions; patients can withhold motive or obtain care from other providers; low reported incidence | Granted — court finds Reason Regulations place a substantial obstacle on a large fraction of women seeking pre-viability abortions for genetic reasons and likely unconstitutional; preliminarily enjoined |
| Whether Reason Regulations unconstitutionally force patients/providers to sacrifice First Amendment interests | Isaacson: compels silence/lying and chills open medical communication | Brnovich: (not fully developed) regulations do not mandate silence | Not reached — court did not decide this claim because vagueness and undue-burden findings were sufficient |
Key Cases Cited
- Webster v. Reprod. Health Servs., 492 U.S. 490 (1989) (facial challenge to interpretive preamble must await concrete application)
- Planned Parenthood v. Casey, 505 U.S. 833 (1992) (undue-burden standard for pre-viability abortion regulations)
- Gonzales v. Carhart, 550 U.S. 124 (2007) (vagueness analysis and objective criteria for abortion regulations)
- Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016) (benefits–burdens balancing in abortion-regulation review)
- June Med. Servs. v. Russo, 140 S. Ct. 2103 (2020) (fractured decision clarifying interplay of Casey and Whole Woman’s Health)
- Johnson v. United States, 576 U.S. 591 (2015) (void-for-vagueness principles in criminal statutes)
- Colautti v. Franklin, 439 U.S. 379 (1979) (fair-notice and arbitrary-enforcement vagueness tests)
- Isaacson v. Horne, 716 F.3d 1213 (9th Cir. 2013) (Ninth Circuit precedent recognizing bright-line protection for pre-viability abortions)
- Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011) (preliminary injunction sliding-scale standard)