1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Paul A Isaacson, et al., No. CV-21-01417-PHX-DLR
10 Plaintiffs, ORDER
11 v.
12 Mark Brnovich, et al.,
13 Defendants. 14 15 16 At issue is A.R.S. § 1-219—known in this case as the “Interpretation Policy”— 17 which provides: 18 A. The laws of this state shall be interpreted and construed to acknowledge, on behalf of an unborn child at every stage of 19 development, all rights, privileges and immunities available to other persons, citizens and residents of this state, subject only 20 to the Constitution of the United States and decisional interpretations thereof by the United States Supreme Court. 21 B. This section does not create a cause of action against: 22 1. A person who performs in vitro fertilization procedures as 23 authorized under the laws of this state. 24 2. A woman for indirectly harming her unborn child by failing to properly care for herself or by failing to follow any particular 25 program of prenatal care. 26 C. For the purposes of this section, “unborn child” has the same meaning prescribed in § 36-2151. 27 28 Section 36-2151, in turn, defines “unborn child” as “the offspring of human beings from 1 conception until birth,” and “conception” as “the fusion of a human spermatozoon with a 2 human ovum.”1 3 According to Defendants2, whether or how the Interpretation Policy might be 4 applied “is anyone’s guess.” (Doc. 113 at 8.)3 Because of this uncertainty, Plaintiffs4 ask 5 to enjoin enforcement of the Interpretation Policy as applied to otherwise lawful abortion 6 care while this lawsuit is pending. (Doc. 107.) The Court has considered the parties’ briefs 7 (Docs. 107, 113, 116) and presentations at the July 8, 2022 oral argument, and for reasons 8 explained below grants Plaintiffs’ motion. 9 BACKGROUND 10 Arizona enacted the Interpretation Policy in April 2021, along with other provisions 11 restricting abortions in cases of fetal genetic abnormalities. S.B. 1457, 55th Leg., 1st Reg. 12 Sess. (Ariz. 2021). In August 2021, Plaintiffs filed this case and moved for an order 13 preliminarily enjoining enforcement of these new laws. (Docs. 1, 10.) Plaintiffs argued 14 the fetal genetic abnormality restrictions were unconstitutionally vague, unduly burdened 15 the then-existing rights of women to terminate pregnancies before fetal viability, and 16 abridged the freedom of speech between doctor and patient. They further argued the 17 Interpretation Policy was unconstitutionally vague in all its applications. 18 On September 28, 2021, the Court issued an order granting in part and denying in 19 part Plaintiffs’ motion for a preliminary injunction. (Doc. 52.) The Court enjoined the
20 1 “[S]tandard medical texts equate ‘conception’ with implantation in the uterus, occurring about six days after fertilization.” Webster v. Reproductive Health Servs., 492 21 U.S. 490, 563 (1989) (Stevens, J., concurring in part and dissenting in part). Arizona’s definition of conception is silent on implantation and therefore includes fertilized eggs that 22 have not implanted (and might never implant) in the uterus. An “unborn child,” it seems, can exist as a legal entity in Arizona even before a woman is considered pregnant from a 23 medical standpoint. 2 Defendants are Arizona Attorney General Mark Brnovich; the County Attorneys 24 for each of Arizona’s fifteen counties; the Arizona Medical Board and its executive director; and the Arizona Department of Health Services and its director. (Doc. 1 ¶¶ 20– 25 23, 25–26; Doc. 70.) 3 Record citations refer to the docket and page numbers in the Court’s Case 26 Management/Electronic Case Files system. 4 Plaintiffs are Drs. Paul Isaacson and Eric Reuss, obstetrician-gynecologists who 27 provide abortion care in Arizona; the National Council of Jewish Women (Arizona Section), Inc., and the Arizona National Organization of Women, which are non-profit 28 organizations that, among other things, support and advocate for reproductive rights and care; and the Arizona Medical Association. (Doc. 1 ¶¶ 13–16, 18.) 1 fetal genetic abnormality restrictions, finding those provisions were unconstitutionally 2 vague and unduly burdened the then-existing rights of women to terminate pregnancies 3 before fetal viability. The Court declined to enjoin the Interpretation Policy, finding 4 Plaintiffs’ challenge was premature under the reasoning in Webster v. Reproductive Health 5 Services, 492 U.S. 490 (1989). 6 Defendants appealed the portion of the Court’s order preliminarily enjoining the 7 fetal genetic abnormality restrictions (Doc. 56) and Plaintiffs cross-appealed the portion 8 declining to enjoin the Interpretation Policy (Doc. 65). Defendants asked this Court and 9 the Ninth Circuit to stay the preliminary injunction pending appeal. (Doc. 57; Doc. 14 in 10 Isaacson v. Brnovich, No. 21-16645.) Both requests were denied. (Doc. 66; Doc. 35 in 11 Isaacson v. Brnovich, No. 21-16645.) Defendants then sought the same relief from the 12 Supreme Court.5 13 On June 24, 2022, the Supreme Court issued an opinion in Dobbs v. Jackson 14 Women’s Health Organization, No. 19-1391, 2022 WL 2276808 (2022), overturning 15 nearly fifty years of precedent and ruling the Constitution does not afford women the right 16 to terminate pregnancies. On June 25, 2022, Plaintiffs filed with this Court a motion under 17 Federal Rule of Civil Procedure 62(d), asking to temporarily enjoin the Interpretation 18 Policy pending resolution of their cross-appeal. (Doc. 107.) Then, on June 30, 2022, the 19 Supreme Court issued an order on Defendants’ partial stay application, vacating this 20 Court’s September 28, 2021 preliminary injunction and remanding to the Ninth Circuit 21 with instructions to remand to this Court for further proceedings consistent with Dobbs. 22 (Doc. 115.) The Ninth Circuit did so the same day. (Doc. 114.) Because these 23 developments rendered a motion under Rule 62(d) procedurally inappropriate, the Court 24 notified the parties it would treat Plaintiffs’ motion as a renewed motion for a preliminary 25 injunction under Federal Rule of Civil Procedure 65. (Doc. 112.) 26
27 5 Defendants’ stay application before the Supreme Court is available at https://www.supremecourt.gov/DocketPDF/21/21- 28 1609/204777/20211210193909281_Isaacson%20v%20Brnovich%20SCOTUS%20Appli cation%20for%20Stay%20FINAL.pdf. 1 Plaintiffs’ renewed motion differs from their first in three ways: (1) it addresses only 2 the Interpretation Policy (the fetal genetic abnormality restrictions are not at issue); (2) 3 instead of asking the Court to enjoin the Interpretation Policy in all its applications (known 4 in law as a “facial” challenge), Plaintiffs ask only to enjoin Defendants from using the 5 Interpretation Policy to punish their provision of otherwise legal abortion care (an “as- 6 applied” challenge); and (3) the motion comes after the Supreme Court’s decision in 7 Dobbs. Why does this matter? Because the Interpretation Policy is limited by decisions 8 of the Supreme Court, and during the September 22, 2021 oral argument on Plaintiffs’ first 9 preliminary injunction motion, Defendants represented that under the law as it then existed, 10 the Interpretation Policy could not be used to prohibit abortion care protected by the 11 Constitution. (Doc. 61 at 84–85.) Dobbs unsettles these assurances and increases the risk 12 that the Interpretation Policy could be applied in a manner detrimental to Plaintiffs’ 13 otherwise lawful conduct. 14 LEGAL STANDARD 15 The purpose of a preliminary injunction is to preserve the status quo in order to 16 avoid harm while litigation is pending. See Univ. of Texas v. Camenisch, 451 U.S. 390, 17 395 (1981). To obtain a preliminary injunction, a plaintiff must show (1) a likelihood of 18 success on the merits, (2) a likelihood that irreparable harm will occur in the absence of 19 preliminary relief, (3) the balance of equities favors a preliminary injunction, and (4) the 20 requested injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 21 U.S. 7, 20 (2008). These elements are balanced on a sliding scale, with a stronger showing 22 of one element offsetting a weaker showing of another, although all factors still must be 23 satisfied. See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131, 1134–35 (9th Cir. 24 2011). 25 ANALYSIS 26 I. Likelihood of Success on the Merits 27 Plaintiffs argue the Interpretation Policy is unconstitutionally vague. The Court first 28 will explain the standards for vagueness claims. It then will dispose of two antecedent 1 issues: (1) whether this challenge is premature under Webster and (2) whether the 2 Interpretation Policy is immune from a vagueness challenge because it is not a substantive 3 law. Finally, because the Court answers no to these antecedent questions, it will discuss 4 why the Interpretation Policy is unconstitutionally vague. 5 A. Vagueness Standards 6 The void-for-vagueness doctrine derives from the due process clauses of the Fifth 7 and Fourteenth Amendments, the former applying to the federal government and the latter 8 to the states. Johnson v. United States, 576 U.S. 591, 595 (2015); Kolender v. Lawson, 461 9 U.S. 352, 353 (1983). The Fourteenth Amendment provides no state shall “deprive any 10 person of life, liberty, or property, without due process of law,” U.S. Const. amend. XIV, 11 § 1, and “the most basic of due process’s customary protections is the demand of fair 12 notice,” Sessions v. Dimaya, 138 S.Ct. 1204, 1225 (2018) (Gorsuch, J., concurring). A 13 state therefore violates due process of law by taking away someone’s life, liberty, or 14 property under a law “so vague that it fails to give ordinary people fair notice of the conduct 15 it punishes, or so standardless that it invites arbitrary enforcement.” Johnson, 576 U.S. at 16 595. “In other words, ordinary notions of fair play and the settled rules of law are violated 17 if police officers, prosecutors, and judges are essentially defining crimes and fixing 18 penalties by filling statutory gaps so large that doing so becomes essentially legislative.” 19 Knox v. Brnovich, 907 F.3d 1167, 1182 (9th Cir. 2018) (cleaned up). 20 “The degree of vagueness that the Constitution tolerates—as well as the relative 21 importance of fair notice and fair enforcement—depends in part on the nature of the 22 enactment.” Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 498 23 (1982). Criminal laws receive the most exacting scrutiny because “[t]he essential purpose 24 of the ‘void for vagueness’ doctrine is to warn individuals of the criminal consequences of 25 their conduct.” Jordan v. De George, 341 U.S. 223, 230 (1951). In contrast, the 26 Constitution has “greater tolerance of enactments with civil rather than criminal penalties 27 because the consequences of imprecision are qualitatively less severe.” Vill. of Hoffman 28 Ests., 455 U.S. at 498–99. Still, the Supreme Court has applied exacting vagueness review 1 to civil laws when they have sweeping or grave consequences. See Dimaya, 138 S.Ct. at 2 1213 (applying “the most exacting vagueness standard” to removal cases, which are civil 3 in nature, because of the gravity of the consequences); Id. at 1229 (Gorsuch, J. concurring) 4 (“[T]he happenstance that a law is found in the civil or criminal part of the statute books 5 cannot be dispositive.”). What matters is the nature of the law not the label attached to it. 6 B. Antecedent Issues 7 1. Webster is Inapposite 8 In Webster, a group of healthcare professionals brought a facial constitutional 9 challenge to, among other provisions, a section of Missouri law that read: 10 1. The general assembly of this state finds that: 11 (1) The life of each human being begins at conception; 12 (2) Unborn children have protectable interests in life, health, and well-being; 13 (3) The natural parents of unborn children have protectable 14 interests in the life, health, and well-being of their unborn child. 15 2. Effective January 1, 1988, the laws of this state shall be 16 interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, 17 privileges, and immunities available to other persons, citizens, and residents of this state, subject only to the Constitution of 18 the United States, and decisional interpretations thereof by the United States Supreme Court and specific provisions to the 19 contrary in the statutes and constitution of this state. 20 3. As used in this section, the term “unborn children” or “unborn child” shall include all unborn child or children or the 21 offspring of human beings from the moment of conception until birth at every stage of biological development. 22 4. Nothing in this section shall be interpreted as creating a 23 cause of action against a woman for indirectly harming her unborn child by failing to properly care for herself or by failing 24 to follow any particular program of prenatal care. 25 Mo. Rev. Stat. § 1.205.1. The Supreme Court refused to entertain the constitutional 26 challenge, finding this provision could fairly be read as a preamble—inoperative precatory 27 language—expressing a value judgment favoring childbirth over abortion. Webster, 492 28 U.S. at 506. The Supreme Court further explained “the extent to which the preamble’s 1 language might be used to interpret other state statutes or regulations is something that only 2 the courts of Missouri can definitively decide.” Id. Though the Supreme Court did not 3 foreclose the possibility that a federal court could address the preamble “should it be 4 applied to restrict the activities” of the plaintiffs “in some concrete way,” it concluded that 5 it lacked power to decide whether the preamble’s directive was unconstitutional in the 6 context of a pre-enforcement facial challenge. Id. at 506–07. 7 The language in the Missouri preamble is similar to the Interpretation Policy. So, 8 when the Court ruled last year on Plaintiffs’ first preliminary injunction motion, it 9 concluded that Plaintiffs’ facial challenge was premature because, like in Webster, whether 10 and to what extent the Interpretation Policy might be used to interpret other provisions of 11 Arizona law is something that Arizona courts must decide in the first instance. (Doc. 52 at 12 8–9.) 13 But “it is never too late to surrender former views to a better considered position.” 14 South Dakota v. Wayfair, Inc., 138 S.Ct. 2080, 2100 (2018) (Thomas, J., concurring) 15 (cleaned up). The Court is now persuaded it was wrong to rely on Webster the first go 16 around. Webster was not a vagueness case. The Missouri preamble was challenged on 17 substantive due process grounds, on the theory that by endorsing one view of when life 18 began, the preamble infringed on the then-existing rights of women to terminate 19 pregnancies. The Supreme Court concluded the substantive due process challenge was 20 premature because it was unclear whether or to what extent the preamble would be applied 21 to restrict the activities of Missouri’s abortion providers, and therefore it was impossible 22 to assess in advance whether abortion access would be curtailed to an intolerable degree. 23 Webster, 492 U.S. at 506–07. But in a vagueness challenge (which sounds in procedural, 24 rather than substantive, due process), the lack of clarity is the whole point. A law is 25 unconstitutionally vague if its application is so unclear that people of ordinary intelligence 26 cannot figure out in advance how to comply with it. Webster’s wait-and-see approach 27 might work for substantive due process challenges, where the injury depends on how the 28 law will be applied, but it is a mismatch in a case about vagueness, where the injury stems 1 from the uncertainty surrounding how the law might apply. Though the Court overlooked 2 the critical distinction between a substantive and a procedural due process challenge during 3 last year’s preliminary injunction phase, the Court sees “no reason why [it] should be 4 consciously wrong today because [it] was unconsciously wrong yesterday.” Com. of 5 Massachusetts v. United States, 333 U.S. 611, 639–40 (1948) (Jackson, J., dissenting). 6 Webster is inapposite.6 7 2. Rules Against Vagueness Apply to the Interpretation Policy 8 Defendants argue the Interpretation Policy is not subject to a vagueness challenge 9 because it is not a substantive law; it is a rule of statutory construction. (Doc. 113 at 9– 10 10.) Though Defendants’ premise is right, their conclusion is wrong. 11 Standing alone, the Interpretation Policy is neither a criminal nor a civil statute. 12 Arizona law categorizes it as a rule of statutory construction, one directing that all other 13 provisions of Arizona law be interpreted to acknowledge the equal rights of the unborn. 14 Neither the parties nor the Court could find any cases applying vagueness principles to 15 codified rules of statutory construction. But the parties and the Court also are unaware of 16 any case categorically exempting such rules from vagueness challenges. 17 The Interpretation Policy is not immune from a vagueness challenge merely because 18 Arizona labeled it a rule of statutory construction. “[D]ue process protections against 19 vague laws are ‘not to be avoided by the simple label a State chooses to fasten upon its 20 conduct or its statute.’” Dimaya, 138 S.Ct. at 1229 (Gorsuch, J. concurring) (quoting 21 Giaccio v. Pennsylvania, 382 U.S. 399, 402 (1966)). Indeed, definitions and rules of 22 statutory construction perform similar functions, albeit at different levels of generality. 23 Standing alone, neither are operative provisions. They instead work in tandem with 24 operative laws to help people understand what those laws mean. And the Supreme Court 25 has applied vagueness principles to void ambiguous definitions. 26
27 6 Webster also is distinguishable. There, the plaintiffs attacked the preamble facially—that is, in all its applications. Here, Plaintiffs attack the Interpretation Policy on 28 as as-applied basis, namely as it might be applied to Plaintiffs’ provision of otherwise lawful abortion care. 1 For example, in Johnson, the Supreme Court considered whether part of the 2 definition of “violent felony” in the Armed Career Criminal Act (“ACCA”) was too vague. 3 576 U.S. at 593. Federal law forbids certain people (such as convicted felons) from 4 possessing firearms, and the ACCA increases the penalty for violating this prohibition if 5 the violator has three or more earlier convictions for “a violent felony.” 18 U.S.C. §§ 6 922(g), 924(e)(1). The ACCA defines “violent felony” as: 7 any crime punishable by imprisonment for a term exceeding one year . . . that— 8 (i) has as an element the use, attempted use, or threatened 9 use of physical force against the person of another; or 10 (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents 11 a serious potential risk of physical injury to another.” 12 18 U.S.C. § 924(e)(2)(B) (emphasis added). The italicized portion is referred to as the 13 residual clause. The residual clause is not itself a substantive law. It instead tells people 14 how to interpret the operative parts of federal law that impose heightened penalties for 15 certain proscribed conduct. Yet, in Johnson the Supreme Court concluded this definition 16 was unconstitutionally vague. 576 U.S. at 606. And in doing so, the Supreme Court did 17 not void the entire ACCA, or even the entire definition of “violent felony.” The Supreme 18 Court voided only that portion of the definition causing the vagueness problem. Id. 19 Similarly, in Dimaya, the Supreme Court voided for vagueness part of the definition 20 of “aggravated felony” in the Immigration and Nationality Act (“INA”), which contained 21 a residual clause similar to the ACCA. 138 S.Ct. at 1223. The residual clause’s definition 22 of “aggravated felony” is not by itself an operative law; it helps people understand how to 23 interpret and apply the substantive provisions of the INA. The Supreme Court did not 24 require the challengers in Johnson or Dimaya to attack the operative parts of the laws at 25 issue. Instead, challenges were made to discrete parts of statutory definitions that, when 26 applied to interpret the operative provisions, created intolerable uncertainty over the reach 27 of those laws. 28 1 Plaintiffs’ challenge to the Interpretation Policy is no different. They need not 2 challenge the substantive laws they believe will become vague if the Interpretation Policy 3 is not enjoined because the language of those laws is not the problem. Rather, the problem 4 is the Interpretation Policy, which causes intolerable uncertainty over the reach of 5 Arizona’s other laws. Arizona’s classification of the Interpretation Policy as a rule of 6 statutory construction does not exempt it from ordinary principles of fair notice. What’s 7 more, because the Interpretation Policy by its terms applies to all of Arizona’s laws, it could 8 drastically expand the scope of Arizona’s criminal, civil, and regulatory provisions. The 9 consequences of imprecision are potentially sweeping and severe. The Court therefore 10 finds it appropriate to test the Interpretation Policy against exacting vagueness standards. 11 C. The Interpretation Policy is Unconstitutionally Vague 12 The Interpretation Policy is intolerably vague because it is entirely unclear what it 13 means to construe and interpret Arizona law to “acknowledge” the equal rights of the 14 unborn. Arizona law does not define “acknowledge.” Merriam-Webster’s dictionary 15 defines “acknowledge” as “to recognize the rights, authority, or status of,” “to disclose 16 knowledge of or agreement with,” “to express gratitude or obligation for,” “to take notice 17 of,” “to make known the receipt of,” or “to recognize as genuine or valid.” Acknowledge, 18 Merriam-Webster.com, https://www.merriam-webster.com/dictionary/acknowledge (last 19 visited July 11, 2022). Black’s Law Dictionary defines “acknowledge” as “[t]o recognize 20 (something) as being factual or valid,” “[t]o show that one accepts responsibility for,” “[t]o 21 make known the receipt of,” “[t]o confirm as genuine before an authorized officer,” or “to 22 certify as genuine.” Acknowledge, Black’s Law Dictionary (11th ed. 2019). “[T]he plain 23 meaning of the term[] is so broad that if offers little guidance[.]” In re Adoption of B.B., 24 417 P.3d 1, 19 (Utah 2017). And, at bottom, Plaintiffs fear licensing, law enforcement, 25 and judicial officers might take a maximalist view of what it means to “acknowledge” the 26 equal rights of the unborn and use the Interpretation Policy to expand the definition of 27 “person” to implicitly proscribe Plaintiffs’ conduct. 28 1 Several provisions of Arizona law define “person.” For example, A.R.S. § 1-215 2 supplies certain default definitions that apply to “the statutes and laws of this state, unless 3 the context otherwise requires.” Section 1-215(29) defines “person” to include: 4 a corporation, company, partnership, firm, association or society, as well as a natural person. When the word “person” 5 is used to designate the party whose property may be the subject of a criminal or public offense, the term includes the 6 United States, this state, or any territory, state or country, or any political subdivision of this state that may lawfully own 7 any property, or a public or private corporation, or partnership or association. When the word “person” is used to designate 8 the violator or offender of any law, it includes a corporation, a partnership or any association of persons. 9 10 Arizona’s criminal code defines “person” to mean: 11 a human being and, as the context requires, an enterprise, a public or private corporation, an unincorporated association, a 12 partnership, a firm, a society, a government, a governmental authority or an individual or entity capable of holding a legal 13 or beneficial interest in property. 14 A.R.S. § 13-105(30). Neither of these definitions includes the unborn. And Arizona knows 15 how to clearly include the unborn within the reach of a statute. For example, Arizona’s 16 homicide statutes explicitly include an “unborn child” in the definition of persons who can 17 be victims (while also explicitly exempting lawful abortion from the general rule). See 18 A.R.S. §§ 13-1102 (negligent homicide), 13-1103 (manslaughter), 13-1104 (second degree 19 murder), & 13-1105 (first degree murder). 20 The Interpretation Policy stops short of explicitly amending any statutory definition 21 of “person.” But that begs the question: if the Interpretation Policy does not change the 22 legal definition of “person” in Arizona, then what does it do? How does one 23 “acknowledge” the equal rights of the unborn when the aforementioned definitions of 24 “person” appear to exclude the unborn from the protection of vast swaths of Arizona law? 25 The Interpretation Policy either does absolutely nothing, or it does something. What 26 that something might be is a mystery or, as Defendants put it, “anyone’s guess.” (Doc. 113 27 at 8.) And that is the problem. When the punitive and regulatory weight of the entire 28 Arizona code is involved, Plaintiffs should not have to guess at whether their conduct is on 1 the right or the wrong side of the law. Nor should they have to hire a lawyer and file 2 declaratory judgment actions in state court, as suggested by Defendants at oral argument. 3 A law which requires such extraordinary effort to decipher fails to give ordinary people 4 fair notice of the conduct it permits and proscribes. 5 What’s more, it is entirely unclear how to reconcile the Interpretation Policy with 6 Arizona’s existing laws permitting and regulating abortion. At present, the precise legal 7 status of abortion in Arizona is murky. One provision of Arizona law permits abortion 8 until fetal viability. A.R.S. § 36-2301.01. But Arizona also has an older, pre-statehood 9 law on its books that prohibits abortion unless necessary to save the woman’s life. A.R.S. 10 § 13-3603. And Arizona recently enacted a new law (slated to take effect later this year) 11 that would, except in a medical emergency, prohibit abortions after fifteen weeks gestation. 12 See S.B. 1164, 55th Leg., 2d Reg. Sess. (Ariz. 2022). S.B. 1164, however, explicitly states 13 it does not repeal the pre-statehood law. Id. Attorney General Brnovich has expressed his 14 view that Arizona’s pre-statehood abortion ban is enforceable (or at least will be if an 15 injunction issued by the Arizona Court of Appeals in Nelson v. Planned Parenthood Center 16 of Tucson, Inc., 505 P.2d 580, 590 (Ariz. Ct. App. 1973) is lifted), but that view is not 17 universally shared among Arizona’s elected officials. 18 Regardless of how this dust settles, even under the strictest of Arizona’s potential 19 abortion regimes, some abortions would remain lawful. And Arizona has an assortment of 20 laws that recognize and regulate the provision of legal abortion. See, e.g., A.R.S. §§ 36- 21 2155, 36-2153(E), 32-2531(B), 36-449.03(C)(3)(a)–(b) & Ariz. Admin. Code §§ R9-10- 22 1501(1), R9-10-1507(B)(2)–(3) (licensing and credentialing requirements for abortion 23 providers); A.R.S. §§ 36-449.02, 36-449.03 & Ariz. Admin. Code §§ R9-10-1513, R9-10- 24 1515 (abortion clinic licensure requirements); A.R.S. §§ 36-2153 & 36-2156 (abortion 25 informed consent requirements); A.R.S. §§ 36-449.03(I), 36-2161–62 & Ariz. Admin. 26 Code § R9-10-1505(A) (abortion statistical and demographic data reporting requirements); 27 A.R.S. § 13-3603.01 (second trimester abortion method restriction); A.R.S. § 13- 28 1 3603.02(A)(1) (ban on abortion for reasons of race or sex); A.R.S. § 36-2152 (consent 2 requirements for minors); A.R.S. § 36-3604 (restrictions on telemedicine for abortion care). 3 Because of the indeterminate meaning and applicability of the Interpretation Policy, 4 abortion providers do not have fair notice of whether, if they conform their conduct to these 5 laws, they nonetheless may face criminal, civil, or professional liability under other statutes 6 based solely on what licensing, law enforcement, or judicial officials think it means to 7 “acknowledge” the equal rights of the unborn. These concerns are not irrational. For 8 example, although Arizona’s homicide statutes apply to the unborn, these laws also include 9 explicit exemptions for lawful abortions, meaning these statutes make it crystal clear that 10 someone lawfully performing an abortion is not committing murder. See A.R.S. §§ 13- 11 1102–05. But other parts of Arizona’s criminal code—for example, Arizona’s prohibitions 12 on assault, child endangerment, and child abuse, A.R.S. §§ 13-1203, 13-3619, & 13- 13 3623—do not contain such explicit exemptions, leaving abortion providers left to guess 14 whether their conduct could be criminalized under a maximalist application of the 15 Interpretation Policy. 16 Similar concerns recently compelled the United States District Court for the 17 Northern District of Georgia to enjoin on vagueness grounds an amendment defining 18 “natural person” for purposes of Georgia law to include an “unborn child,” defined as an 19 embryo or fetus “at any stage of development who is carried in the womb.” SisterSong 20 Women of Color Reproductive Justice Collective v. Kemp, 472 F.Supp.3d 1297, 1302 (N.D. 21 Ga. 2020). According to the district court in that case: 22 [P]eople of common intelligence will be forced to guess at the core meaning of [the] Personhood Definition, precisely 23 because it—by its own terms—applies throughout the entire Georgia Code. It explicitly grants embryos/fetuses at any stage 24 of development all the protections “persons” enjoy under Georgia law. Clearly, that would render unlawful at least some 25 actions that are currently lawful, but even the litigants in this case are forced to guess which. The State Defendants have 26 been unable to articulate what this will mean for Plaintiffs and Georgians more generally. Given the severity of the potential 27 penalties, the Court declines to find that Plaintiffs must wait to be prosecuted under an individual statute by operation of the 28 Personhood Definition to challenge its validity. 1 Id. at 1316–17. 2 The same is true here, except the Interpretation Policy suffers from an additional 3 layer of ambiguity. The amendment at issue in Georgia explicitly changed the legal 4 definition of “natural person.” No one had to guess about whether the amendment 5 redefined the term. Here, however, it is unclear whether the Interpretation Policy changes 6 any statutory definition of “person.”7 As such, “[i]t remains entirely unclear to this Court 7 how [the Interpretation Policy] will be effectuated or enforced. To the extent Plaintiffs are 8 forced to hypothesize about ways in which their conduct might violate statutes” if those 9 statutes are interpreted and construed to acknowledge the equal rights of the unborn, “it is 10 precisely because the [Interpretation Policy] puts them at the mercy of the State’s 11 discretion, in violation of their due process rights.” Id. at 1316. 12 In sum, the Court finds Plaintiffs are likely to succeed on the merits of their claim 13 because three features of the Interpretation Policy “conspire to make it unconstitutionally 14 vague.” Johnson, 576 U.S. at 597. First, the Interpretation Policy offers no guidance on 15 what it means to “acknowledge” the equal rights of the unborn, especially if 16 acknowledgment means something less than including the unborn within the express 17 definition of “person.” Second, the Interpretation Policy is incongruous with other aspects 18 of Arizona law—specifically, provisions that do not define “person” to include an “unborn 19 child” and provisions that permit and regulate abortion. It is paradoxical how one can 20 “acknowledge” the equal rights of the unborn while simultaneously permitting and 21 regulating abortion and excluding the unborn from the express definition of “person.” See, 22 e.g., Roe v. Wade, 410 U.S. 113, 157 n.54 (1973), overruled on other grounds by Dobbs, 23 2022 WL 2276808. And third, these uncertainties create an intolerable risk of arbitrary 24 enforcement. Medical providers should not have to guess about whether the otherwise 25 lawful performance of their jobs could lead to criminal, civil, or professional liability solely
26 7 At oral argument, Defendants said the Interpretation Policy did not change the definition of “person” in Arizona’s criminal code. But that confidence is at odds with 27 Defendants’ response brief, which states “[h]ow the Interpretation Policy might alter the Arizona judiciary’s analysis of these issues, if at all, is anyone’s guess.” (Doc. 113 at 8.) 28 How the Interpretation Policy applies to other Arizona laws cannot be both a question mark and an exclamation point. 1 based on how literally or maximalist state licensing, law enforcement, and judicial officials 2 might construe the Interpretation Policy’s command. 3 II. Irreparable Harm, Balance of Hardships, and the Public Interest 4 Having concluded that Plaintiffs are likely to succeed on the merits of their 5 vagueness claim, the Court finds the remaining preliminary injunction factors favor relief. 6 Because of its vagueness, the Interpretation Policy deprives Plaintiffs of their Fourteenth 7 Amendment procedural due process rights. “It is well established that the deprivation of 8 constitutional rights unquestionably constitutes irreparable injury” and “it is always in the 9 public interest to prevent the violation of a party’s constitutional rights.” Melendres v. 10 Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (cleaned up). As for the balance of hardships, 11 the evidence shows the Interpretation Policy is visiting concrete harms on Drs. Isaacson 12 and Reuss and their patients. In declarations submitted to the Court in support of their 13 preliminary injunction motion, Drs. Isaacson and Reuss aver that, because the 14 Interpretation Policy makes it impossible for them to know whether the otherwise lawful 15 abortion care they provide to their patients could be punished under other provisions of 16 Arizona law, they have stopped providing abortion care altogether.8 (Doc. 107-1 at 4 ¶ 13, 17 10–11 ¶¶ 15, 17.) In turn, this harms their patients, who are denied time-sensitive medical 18 treatment. (Id. at 4–5 ¶¶ 14–15, 10–11 ¶¶ 13, 15, 17.) In contrast, Defendants stand only 19 to lose the ability to enforce an intolerably vague rule of statutory construction. 20 What’s more, based on the answers Defendants gave to the Court’s questions at oral 21 argument, Defendants seem to believe the Interpretation Policy does little to nothing at all.9 22 Defendants are not harmed by an order enjoining them from enforcing what might be a
23 8 At present there is considerable confusion over the legal status of abortion in Arizona, and this confusion might reasonably chill Drs. Isaacson and Reuss from 24 performing some abortions. But even under the most restrictive abortion law currently on the books, abortion is legal under some circumstances. An order preliminarily enjoining 25 the Interpretation Policy would alleviate the harm in those circumstances in which abortion care is otherwise legal. 26 9 The only example of a concrete, real-world impact of the Interpretation Policy Defendants could offer the Court at oral argument was potentially to extend wrongful death 27 protections to the unborn before fetal viability. The Arizona Supreme Court already held thirty-seven years ago that “the word ‘person’ in the wrongful death statutes (A.R.S. § 12- 28 611 et seq.) encompasses a stillborn, viable fetus.” Summerfield v. Super. Ct. In and For Maricopa Cnty., 698 P.2d 712, 724 (Ariz. 1985) (emphasis added). 1 purely symbolic provision of state law. As the Court previously noted, the Interpretation 2 Policy either does nothing (what Webster called inoperative precatory language), or it does 3 something, in which case it is incumbent on the state to be precise about what that 4 something is. Plaintiffs should not have to operate under a shadow of uncertainty, 5 especially when Defendants have been unable to provide a coherent and satisfactory 6 explanation of what the Interpretation Policy does. 7 Finally, a preliminary injunction will not leave Arizona hamstrung. If Arizona wants 8 to extend legal protections to the unborn—including, it seems, before medically recognized 9 conception—nothing in this order precludes it from doing so clearly and explicitly, by 10 amending the definition of “person” in those discrete statutes where Arizona wants the 11 change to operate, and by clearly and explicitly stating whether those applications exempt 12 otherwise lawful abortion care. Arizona’s homicide statutes are an example of this 13 approach. Those provisions clearly state that the unborn are included within the class of 14 persons who can be victims of those crimes, but also explicitly carve out exceptions for 15 lawfully performed abortions. See A.R.S. §§ 13-1102–05. They therefore avoid the pitfalls 16 of the Interpretation Policy by clearly changing the definition of “person” and harmonizing 17 their commands with Arizona’s other laws permitting and regulating abortion.10 But what 18 Arizona cannot do is enact a vague rule of statutory construction that sows confusion 19 throughout its laws, leaving people to guess what their conduct will reap. 20 CONCLUSION 21 Although this motion comes to the Court in the context of abortion care, it is not 22 about abortion per se. It is about giving people fair notice of what the law means so that 23 they know in advance how to comply. The Interpretation Policy is so vague that it “makes 24 it impossible for Plaintiffs to do their work with fair notice of conduct that is forbidden or 25 26 10 The Court expresses no view on whether a law defining “person” to include the 27 unborn for all purposes and without exception would be constitutional. That issue is not before it. But see SisterSong, 472 F.Supp.3d at 1314–18. The Court merely observes that 28 if Arizona did for other discrete laws what it has already done for its homicide statutes, the specific vagueness problems Plaintiffs have highlighted likely would not be present. 1 || required, in violation of their procedural due process rights.” SisterSong, 472 F.Supp.3d 2|| at 1317-18 (cleaned up). Therefore, 3 IT IS ORDERED that Plaintiffs’ motion for a preliminary injunction (Doc. 107) is 4|| GRANTED. During the pendency of this case, Defendants are enjoined from enforcing || A.R.S. § 1-219 as applied to abortion care that is otherwise permissible under Arizona law. 6|| Defendants further are enjoined from retroactively using the Interpretation Policy to take enforcement action against those who performed otherwise lawful abortions during the 8 || time that this preliminary injunction is in effect.™! 9 Dated this 11th day of July, 2022. 10 11 12 {Z, 13 _- Ae Do . Rayes 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 __ | Federal Rule of Civil Procedure 65(c) provides that the Court may issue a 26 preliminary injunction “only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been 27 wrongfully enjoined or restrained.” There is no evidence Defendants will face any monetary injury if a preliminary injunction is issued. The Court therefore exercises its discretion to waive the bond requirement. See Diaz v. Brewer, 656 F.3d 1008, 1015 (9th Cir. 2011). -17-