84 F.4th 1089
9th Cir.2023Background
- Arizona enacted the "Reason Regulations" (S.B. 1457) criminalizing abortions sought solely because of fetal or embryonic genetic abnormalities, creating misdemeanor/felony penalties, licensing sanctions, and a private right of action for a married father; limited exceptions exist for lethal fetal conditions and medical emergencies.
- Plaintiff-appellants are Arizona obstetrician-gynecologists (joined by medical and advocacy groups) who previously provided abortions for genetic abnormalities but have substantially curtailed those services, alleging over-compliance because the statute is vague about what counts as a "genetic abnormality" and what proof of a patient’s motive is required.
- The district court initially enjoined enforcement as likely void for vagueness, but the Supreme Court vacated and remanded after Dobbs; on remand the district court denied a renewed preliminary-injunction motion for lack of Article III standing.
- The Ninth Circuit considered whether the physician plaintiffs had standing to bring a pre-enforcement vagueness (due process) challenge after Dobbs.
- The Ninth Circuit held the physicians have both actual economic injury (lost revenue from services they no longer provide) and imminent injury (credible threat of criminal, civil, and licensing enforcement), reversing the district court and remanding for consideration of the preliminary-injunction request on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant/Intervenors' Argument | Held |
|---|---|---|---|
| Whether plaintiffs have an "injury in fact" based on economic losses | Isaacson: lost revenue from abortions they no longer provide due to the statute and over-compliance amounts to a concrete injury | State: economic losses from business regulation do not create Article III injury here post-Dobbs | Held: Economic loss from compliance is a concrete, particularized injury sufficient for standing |
| Whether plaintiffs have imminent future injury for pre-enforcement review under Driehaus | Isaacson: intend to provide abortions within ambiguous limits; credible threat of prosecution/licensing action makes the injury imminent | State/Intervenors: Dobbs eliminated constitutional interest in abortion; AG disavowals negate credible threat | Held: Plaintiffs alleged a protected interest (due process), proscribed conduct, and a credible threat of enforcement by county attorneys, agencies, or private suits, satisfying imminence |
| Whether the Attorney General’s public non-enforcement stance defeats the credible-threat showing | Isaacson: other enforcers (county attorneys, AZ Medical Board, Dept. of Health) can and have indicated willingness to enforce; private suits possible | Intervenors: AG’s disavowal and assurances mean enforcement is not credible | Held: AG cannot bind county attorneys; evidence of at least one county attorney seeking enforcement and agency statements sustaining enforcement plausibly create a credible threat |
| Causation and redressability of alleged injuries | Isaacson: losses are fairly traceable to the statute and would be redressed by injunctive relief | Intervenors: injuries stem from plaintiffs’ voluntary over-compliance or Dobbs | Held: Causation and redressability satisfied; even if over-compliance contributes, it is fairly traceable to alleged vagueness and would be remedied by relief |
Key Cases Cited
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) (standing framework for pre-enforcement challenges)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing elements)
- Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022) (overruling Roe and changing substantive right to abortion)
- MedImmune, Inc. v. Genentech, 549 U.S. 118 (2007) (pre-enforcement facial relief may be appropriate when enforcement threat is genuine)
- Vill. of Hoffman Estates v. Flipside, 455 U.S. 489 (1982) (void-for-vagueness doctrine and pre-enforcement challenge viability)
- National Audubon Soc’y v. Davis, 307 F.3d 835 (9th Cir. 2002) (economic injury from compliance sufficient for standing)
- Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134 (9th Cir. 2000) (factors for assessing credible threat of prosecution)