Arizona Court of Appeals Division One Vacates Injunction Barring Enforcement of Statutes Affecting Abortion Services.

On appeal, the Court of Appeals vacated the injunction in its entirety and also addressed the trial court’s rulings on the various motions to intervene.  Regarding the constitutionality of the provisions at issue in the injunction, the Court of Appeals disagreed with the trial court and held that none of those provisions violated the Arizona Constitution.  First, the Court concluded that the provisions at issue were not subject to strict scrutiny, as Planned Parenthood had argued.  In reaching this conclusion, the Court noted that the privacy clause of the Arizona Constitution does not confer abortion rights beyond those guaranteed by the federal constitution.  Instead, the Court applied the “undue burden” test of Planned Parenthood v. Casey, 505 U.S. 833 (1992), after noting that strict scrutiny applies only when a discriminatory regulation affects fundamental rights.  The regulations at issue in this case did affect how fundamental rights may be exercised, but did not do so in a discriminatory fashion.

The Court then addressed the challenged provisions one-by-one.  One provision prohibits a physician from performing an abortion on an unemancipated minor unless the physician has secured written and notarized consent from the minor’s parents or unless the minor obtains authorization from a court.  Planned Parenthood argued that the notarization provision violates the minor’s and her parents’ rights to privacy.  The Court questioned whether Planned Parenthood had standing to challenge this provision on behalf of minors and their parents, but went on to find that the provision did not violate the Constitution.  The Court said that the notarization requirement furthers the legitimate state interest in ensuring that a minor actually secures her parents’ consent to an abortion.  The intrusion into private affairs required by disclosure to a notary did not outweigh this interest, and laws imposing penalties for a notary’s disclosure of confidential information and potential civil liability for unauthorized disclosure provide further privacy protection.

Planned Parenthood also challenged provisions that require that certain information be provided to an abortion patient by a physician and in person.  The Court noted that the Supreme Court upheld such requirements in Casey and then went on to conduct its own balancing of interests.  The Court found it reasonable for the legislature to conclude that an in-person interaction is superior to a telephonic consultation, and that a consultation with a physician is superior to a consultation with a non-physician.  The Court recognized that a physician consultation could increase the expense of an abortion, but concluded that this would not “practically deny a large fraction of the affected women their right to choose an abortion.”  The Court rejected Planned Parenthood’s argument that the in-person consultation requirement would impose the burdens of additional travel, expense, and delay, saying that Planned Parenthood was merely “speculat[ing] about the impact of these burdens.”

The Court also rejected Planned Parenthood’s challenge to a provision that requires only physicians to perform surgical abortions.  Planned Parenthood argued that registered nurse practitioners have comparable safety records when performing abortions, and thus the physician requirement does not further the state’s interest in ensuring the safety of abortions.  Relying on Supreme Court case law addressing similar challenges, the Court concluded that no privacy interests were affected by this requirement.

Finally, Planned Parenthood challenged provisions allowing pharmacies, hospitals, their staff members, and other health professionals to refuse to provide abortions and abortion medications.  The Court first concluded that Planned Parenthood had standing to challenge these provisions because it “faces possible employment litigation with employees who might be fired for refusal pursuant to [the] provisions.”  The Court then found, however, that Planned Parenthood’s argument that these provisions violate a woman’s right to choose an abortion was foreclosed by the Arizona Supreme Court’s previous decision in Roe v. Arizona Board of Regents, 113 Ariz. 178, 549 P.2d 150 (1976), which established that the availability of adequate alternative facilities ensured that a woman’s right to choose abortion was protected.  The Court also noted that the constitutional provisions at issue could only be applied against government actors; thus, “a woman’s right to an abortion or to contraception does not compel a private person or entity to facilitate either.”  The Court rejected Planned Parenthood’s argument that the provisions would allow medical professionals to abandon their patients in emergency situations because such medical professionals would still be held to the standards of care that govern their professions and be subject to potential civil liability for falling below those standards.  Finally, the Court rejected Planned Parenthood’s argument that these provisions violate Article 2, Section 12, sentence 1, of the Arizona Constitution, which states:  “The liberty of conscience secured by the provisions of this constitution shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the state.”  Because the provisions at issue did not excuse licentiousness or interfere with the peace and safety of the state, Planned Parenthood’s argument failed under the plain language of the constitutional provision.

The Court then turned to the trial court’s rulings denying various parties the right to intervene.  First, the Court concluded that the trial court erred in not allowing the Speaker of the House to intervene because such intervention is explicitly authorized by A.R.S. § 12-1841 when a statute is challenged on constitutional grounds.  The Court also held that the trial court erred in not allowing the intervention of various organizations that represent healthcare professionals whose liberty of conscience rights are protected by the refusal provisions.  The Court disagreed with Planned Parenthood that the interests of these professionals were adequately represented by the state because “[t]he state must represent the interests of all people in Arizona, some of whom might be adversely affected by these applicants’ exercise of the rights protected under the provision.”  On the other hand, the Court held that the trial court correctly denied the Arizona Catholic Conference’s application to intervene.  That organization, which lobbied for the passage of the challenged legislation, did not demonstrate that it had any interest that would not be adequately served by the state’s advocacy.  Likewise, the trial court’s denial of the application to intervene by Crisis Pregnancy Centers of Greater Phoenix was proper because that organization’s stated interest in ensuring that women received adequate information about abortion was not at issue in the suit because Planned Parenthood had not challenged the mandate that such information be provided.  Lastly, the Court agreed with the trial court’s refusal to allow intervention by State Senator Linda Gray and State Representative Nancy Barto, who had sponsored the bills at issue, because sponsors of legislation do not have a protectable interest in upholding the constitutionality of a statute.

The Court remanded for further proceedings consistent with its opinion.

Judge Swann authored the opinion; Judges Barker and Brown concurred.