524 P.3d 262
Ariz. Ct. App.2022Background
- Arizona had a near-total statutory abortion ban (including A.R.S. § 13-3603) but a 1973 injunction (Nelson) declared those statutes unconstitutional and enjoined enforcement.
- Since 1973 the legislature enacted a regulatory abortion scheme in Title 36; in 2022 it enacted a 15-week law (A.R.S. §§ 36-2321–2326) regulating and permitting certain elective abortions by licensed physicians under conditions and penalties.
- After Dobbs (U.S. Supreme Court, 2022) overruled Roe, the Arizona Attorney General moved under Rule 60 to vacate the long-standing injunction as to § 13-3603; the trial court granted relief and vacated the injunction but declined to harmonize § 13-3603 with later Title 36 statutes.
- Planned Parenthood of Arizona and the Pima County Attorney appealed, asking the court to reconcile the statutes so that licensed physicians complying with Title 36 are not criminally liable under § 13-3603.
- The Court of Appeals held the trial court abused its discretion by narrowing review and concluded that Title 36 and § 13-3603 can be harmonized: physicians complying with Title 36 are not subject to prosecution under § 13-3603.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of Rule 60 review after Dobbs | Court should consider current statutory landscape and harmonize § 13-3603 with Title 36 | Relief under Rule 60 should be limited to whether Roe was overruled (Dobbs) and not other statutory changes | Court erred by limiting its Rule 60 inquiry; it should evaluate the entire changed legal landscape |
| Whether licensed physicians who comply with Title 36 may be prosecuted under § 13-3603 | § 13-3603 should be harmonized so Title 36 governs physicians and § 13-3603 applies to non-physicians | § 13-3603 criminalizes abortion by “any person,” which includes licensed physicians; no implied exemption exists | Statutes are read harmoniously: physicians performing abortions in compliance with Title 36 are not subject to prosecution under § 13-3603 |
| Attorney fees and costs | PPAZ sought attorney fees under several statutes and the private-attorney-general doctrine | — | Request for attorney fees denied; PPAZ as prevailing party entitled to costs under Rule 21 and A.R.S. § 12-341 |
Key Cases Cited
- Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022) (overruled Roe and removed federal constitutional right to abortion)
- Roe v. Wade, 410 U.S. 113 (1973) (established a constitutional right to abortion; basis for the 1973 injunction)
- Agostini v. Felton, 521 U.S. 203 (1997) (courts should assess whether the legal landscape has changed and read subsequent law together)
- UNUM Life Ins. Co. of Am. v. Craig, 200 Ariz. 327 (2001) (canon to reconcile statutes relating to same subject and give effect to all provisions)
- Edsall v. Superior Court, 143 Ariz. 240 (1984) (Rule 60(b)(5) may be used liberally when changes in law affect substantial rights)
- Horne v. Flores, 557 U.S. 433 (2009) (Rule 60(b)(5) appropriate to evaluate changes in governing law or circumstances)
- State v. Schmidt, 220 Ariz. 563 (2009) (due process requires laws be sufficiently definite to avoid arbitrary enforcement)
- Nelson v. Planned Parenthood of Tucson, Inc., 19 Ariz. App. 142 (1973) (affirmed injunction declaring Arizona abortion statutes unconstitutional under then-governing federal law)