Tucson Women's Center et al

Filing 71

ORDER CERTIFYING QUESTION TO THE ARIZONA SUPREME COURT - IT IS ORDERED:1. The following question is certified to the Arizona Supreme Court pursuant toA.R.S. § 12-1861 and Rule 27 of the Rules of the Arizona Supreme Court: Whether the payment pro vision of A.R.S. § 36-2153(D) applies only when the informed consent and 24-hour waiting period of A.R.S. § 36-2153(A) is triggered by the actual providing or inducing of an abortion, or whether it applies outside the abortion context whene ver an inquiry about abortion is made to a health care provider. 2. The Clerk is directed to file with the Arizona Supreme Court the original and six copies of this certification order. The Clerk shall transmit to the Arizona Supreme Court the original or copies of such other portions of the Court's record as the Arizona Supreme Court may deem necessary to a determination of the certified question. Signed by Judge David G Campbell on 9/30/09. (SAT)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) ) ) ) Plaintiffs, ) ) vs. ) Arizona Medical Board; Lisa Wynn, in ) ) her official capacity as Executive Director of the Arizona Medical Board; ) ) and Terry Goddard, in his official capacity as Attorney General of Arizona, ) ) ) Defendants. ) Tucson Women's Center; Family Planning Associates; William Richardson, M.D.; Paul A. Isaacson, M.D.; and Frank Laudonio, M.D.,

No. CV-09-1909-PHX-DGC ORDER CERTIFYING QUESTION TO THE ARIZONA SUPREME COURT

Arizona House Bill 2564 ("the Act") amends Arizona law relating to abortions. The Act was passed by the Arizona Legislature and signed by the Governor in July 2009, and becomes effective today. Among other things, the Act adds A.R.S. § 36-2153. Section 36-2153(A) prohibits, except in the case of a medical emergency, the performance of an abortion unless, at least 24 hours before the abortion, the patient gives consent after having received certain statutorily-prescribed information. Section 36-2153(D) then provides: A person shall not write or communicate a prescription for a drug or drugs to induce an abortion or require or obtain payment for a service provided to a patient who has inquired about an abortion or scheduled an abortion until the expiration of the twenty-four hour reflection period required by subsection A. A.R.S. § 36-2153(D).

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Plaintiffs challenge the payment provision of section 36-2153(D) as unconstitutionally vague. Dkt. #1 ¶¶ 70-76, 81-82. No Arizona appellate court has interpreted section 36-2153(D). The meaning of that provision presents a question of state law that may be determinative of a claim in this action. Pursuant to A.R.S. § 12-1861 and Rule 27 of the Rules of the Arizona Supreme Court, the Court certifies the following question to the Arizona Supreme Court: Whether the payment provision of A.R.S. § 36-2153(D) applies only when the informed consent and 24-hour waiting period of A.R.S. § 36-2153(A) is triggered by the actual providing or inducing of an abortion, or whether it applies outside the abortion context whenever an inquiry about abortion is made to a health care provider. Because the certified question is one of law, the Court will not provide a statement of facts. See Ariz. R. Sup. Ct. 27(3)(B). The Court addressed the interpretation of A.R.S. § 362153(D) in an order dated September 29, 2009, a copy of which is attached to this order. The following is a list of counsel appearing in this matter. See Ariz. R. Sup. Ct. 27(3)(C). Counsel for Plaintiffs: Suzzane Novak and Jordan Goldberg, Center for Reproductive Rights, 120 Wall Street, 14th Floor, New York, NY 10005, [phone]. Aimee Goldstein, James Gamble, and Jayma Meyer, Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, NY 10017, [phone]. Christopher LaVoy, Lavoy & Chernoff PC, 201 North Central Avenue, Suite 3300, Phoenix, AZ 85004, [phone]. Counsel for Defendants: Paula Bickett, Carrie Brennan, Gregory Honig, and Mary O'Grady, Office of the Attorney General, 1275 West Washington Street, Phoenix, AZ 85007, [phone]. IT IS ORDERED: 1. The following question is certified to the Arizona Supreme Court pursuant to A.R.S. § 12-1861 and Rule 27 of the Rules of the Arizona Supreme Court: Whether the payment provision of A.R.S. § 36-2153(D) applies only when the informed consent and 24-hour waiting period of A.R.S. § 36-2153(A) is -2-

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triggered by the actual providing or inducing of an abortion, or whether it applies outside the abortion context whenever an inquiry about abortion is made to a health care provider. The Clerk is directed to file with the Arizona Supreme Court the original and six copies of this certification order. The Clerk shall transmit to the Arizona Supreme Court the original or copies of such other portions of the Court's record as th