Planned Parenthood Arizona Incorporated et al v. Brnovich et al

Filing 112

ORDER - 1) That the Motions to Dismiss filed by Mark Brnovich (Doc. 46 ), Patricia E. McSorley (Doc. 40 ), and the Members of the Arizona Medical Board (Doc. 41 ) are denied; 2) That Defendant Cara Christ's Motion to Dismiss (Doc. 44 ) is granted and she is dismissed without prejudice from this action; 3) That Plaintiffs' Motion for Leave to Amend (Doc. 81 ) is granted; 4) That Plaintiffs shall have until 04/04/16 to file an Amended Complaint consistent with this Order and the local rules; and 5) That Defendants shall have fourteen (14) days from the date of the filing of the Amended Complaint to file an answer. See order for details. Signed by Judge Steven P. Logan on 3/23/16. (NKS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Planned Parenthood Arizona, Inc., et al.,

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Plaintiffs,
vs.

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Mark Brnovich, et al.,
Defendants.

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No. CV-15-01022-PHX-SPL
ORDER

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At issue are Motions to Dismiss filed by Defendants Mark Brnovich, Cara Christ,

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M.D., Patricia E. McSorley, Richard T. Perry, James Gillard, Jodi A. Bain, Marc D.

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Berg, Donna Brister, R. Screven Farmer, Gary R. Figge, Robert E. Fromm, Paul S.

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Gerding, Lois Krahn, Edward G. Paul, and Wanda J. Salter. (Docs. 40, 41, 44, 46.)

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Plaintiffs Planned Parenthood Arizona, Inc., Desert Star Family Planning, LLC, Eric

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Reuss, Paul A. Isaacson, and DeShawn Taylor, have also filed a Motion for Leave to

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Amend the Complaint (Doc. 81), which Defendants oppose. The motions are fully

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briefed, and will be addressed jointly as follows.

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I.

Background

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A.

Arizona Informed Consent Law

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Arizona law requires that an abortion shall not be performed or induced without

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the voluntary and informed consent of the woman seeking the procedure, certified in

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writing. Ariz. Rev. Stat. § 36-2153(A)(4). With exception to instances involving a

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medical emergency, consent is voluntary and informed only if, at least twenty-four hours

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before an abortion, the woman has been informed orally and in person, individually and

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in private, of two categories of information. Ariz. Rev. Stat. § 36-2153(A)(1)-(3).1
First, the woman must be informed by the physician who is to perform the

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abortion, or the referring physician, of:

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(a) The name of the physician who will perform the abortion.

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(b) The nature of the proposed procedure or treatment.

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(c) The immediate and long-term medical risks associated with the
procedure that a reasonable patient would consider material to the
decision of whether or not to undergo the abortion.

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(d) Alternatives to the procedure or treatment that a reasonable
patient would consider material to the decision of whether or not to
undergo the abortion.

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(e) The probable gestational age of the unborn child at the time the
abortion is to be performed.

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(f) The probable anatomical and physiological characteristics of the
unborn child at the time the abortion is to be performed.

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(g) The medical risks associated with carrying the child to term.

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Ariz. Rev. Stat. § 36-2153(A)(1).

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Second, the woman must be informed by the physician who is to perform the

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abortion, a qualified physician, physician assistant, nurse, psychologist, or licensed

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behavioral health professional delegated with authority by the physician, that:

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(a) Medical assistance benefits may be available for prenatal care,
childbirth and neonatal care.

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(b) The father of the unborn child is liable to assist in the support of
the child, even if he has offered to pay for the abortion. In the case of
rape or incest, this information may be omitted.

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Voluntary and informed consent requires satisfaction of these two requirements,
contained at Ariz. Rev. Stat. § 36-2153(A)(1) and (2), and satisfaction of the additional
requirements contained in Title 36, Chapter 20, Article 1 of the Arizona Revised Statutes.
See Ariz. Rev. Stat. § 36-2156 (consent to an abortion is informed if, within 24-hours
before the abortion is to be performed or induced, the woman is given an opportunity to
view the active ultrasound image and hear the fetal heartbeat); § 36-2158 (consent to an
abortion is informed if the woman has certain received information where a lethal and
non-lethal fetal condition has been diagnosed).
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(c) Public and private agencies and services are available to assist
the woman during her pregnancy and after the birth of her child if
she chooses not to have an abortion, whether she chooses to keep the
child or place the child for adoption.

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(d) It is unlawful for any person to coerce a woman to undergo an
abortion.

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(e) The woman is free to withhold or withdraw her consent to the
abortion at any time without affecting her right to future care or
treatment and without the loss of any state or federally funded
benefits to which she might otherwise be entitled.

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(f) The department of health services maintains a website that
describes the unborn child and lists the agencies that offer
alternatives to abortion.

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(g) The woman has a right to review the website and that a printed
copy of the materials on the website will be provided to her free of
charge if she chooses to review these materials.

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Ariz. Rev. Stat. § 36-2153(A)(2).2 The Arizona Department of Health Services

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(“ADHS”) must establish and “annually update a website that includes a link to a

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printable version of all materials listed [in the informed consent statute] on the website.”

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Ariz. Rev. Stat. § 36-2153(C).

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In 2015, the Arizona legislature passed Senate Bill 1318, a set of statutory

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amendments regulating abortion that was signed in to law by the Governor on March 30,

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2015. Ariz. Legis. Serv. Ch. 87 (S.B. 1318) (2015). The requirements for obtaining a

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patient’s informed consent was amended to include that a woman must also be informed

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that:

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(h) It may be possible to reverse the effects of a medication abortion
if the woman changes her mind but that time is of the essence.

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(i) Information on and assistance with reversing the effects of a
medication abortion is available on the department of health
services’ website.

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Ariz. Rev. Stat. § 36-2153(A) first went into effect in 2009. Ariz. Legis. Serv. Ch.
172 (H.B. 2564 § 4) (2009). Prior challenges to the constitutionality of this statute have
been brought, but are not relevant to the issues before the Court. See Tucson Women’s
Center v. Arizona Medical Board, No. CV-09-01909-PHX-DGC (D. Ariz. Mar. 8, 2010)
(dismissed in its entirely without prejudice); Planned Parenthood Arizona, Inc. v.
American Ass’n of Pro-Life Obstetricians & Gynecologists, 257 P.3d 181, 195 (Ariz Ct.
App. 2011) (finding the requirement that certain information “be provided in person and
by a physician” was constitutional).
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S.B. 1318 § 4 (codified at Ariz. Rev. Stat. § 36-2153(A)(2)(h) and (i)). Further, ADHS

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must include on their website:

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Information on the potential ability of qualified medical professionals to
reverse a medication abortion, including information directing women
where to obtain further information and assistance in locating a medical
professional who can aid in the reversal of a medication abortion.

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S.B. 1318 § 4 (codified at Ariz. Rev. Stat. § 36-2153(C)(8)).

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B.

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Plaintiffs commenced the instant action challenging the amended provisions

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codified at Ariz. Rev. Stat. § 36-2153(A)(2)(h) and (i), otherwise referred to by the

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parties and this Court as “the Act.”3 (Doc. 1.) Plaintiffs claim that the Act violates

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physicians’ rights under the First Amendment, and the rights of patients seeking

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abortions under the Fourteenth Amendment. (Docs. 1 ¶ 57, 59; 81-1 ¶ 61, 63.) 4 Plaintiffs

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seek injunctive and declaratory relief, asking that enforcement of the Act be permanently

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enjoined, and the Act be declared unconstitutional.

Plaintiffs’ Challenge to the Act

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Plaintiffs include two health care facilities and three physicians. Planned

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Parenthood Arizona, Inc. is a nonprofit corporation that provides reproductive, sexual

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health, and abortion services. It provides both surgical and medication abortions at four

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of its health centers, which are licensed by ADHS. It employs obstetricians and

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gynecologists licensed to practice medicine by the Arizona Medical Board. Planned

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Parenthood sues on behalf of itself, its patients, and its physicians. (Docs. 1 ¶ 7; 81-1 ¶

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7.) Desert Star Family Planning, LLC, is a private physician practice that provides

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comprehensive family planning and health services, including abortion services, and is

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licensed by ADHS. It employs board-certified obstetricians and gynecologists. Desert

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Star sues on behalf of itself, its physicians, and its patients. (Docs. 1 ¶ 10; 81-1 ¶ 10.)

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Plaintiffs Eric Reuss, M.D., M.P.H., Paul A. Isaacson, M.D., and DeShawn Taylor, M.D.

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Plaintiffs did not challenge Ariz. Rev Stat. § 36-2153(C)(8).

Because the Court addresses Plaintiffs’ request for leave to amend simultaneously
with Defendants’ challenges, it cites to both the original complaint (Doc. 1) and the
proposed amended complaint (Doc. 81-1).
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(“Physician-Plaintiffs”), are board-certified obstetricians and gynecologists that perform

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abortions and are licensed to practice medicine in Arizona. They sue on their own behalf

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and on behalf of patients. (Docs. 1 ¶¶ 8, 9, 10; 81-1 ¶¶ 8, 9, 10.)

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On the basis of their alleged statutory authority to enforce the Act, Plaintiffs sue

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the members of the Arizona Medical Board, the Executive Director of the Arizona

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Medical Board, the Arizona Attorney General, and the Director of ADHS.5 (Doc. 1 ¶¶ 11-

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14; 81-1 ¶¶ 11-14.)

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Before the Act was to take effect on July 3, 2015, pursuant to the stipulation of the

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parties, the Court entered a temporary restraining order enjoining enforcement of the Act

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(Doc. 32). Also on request of the parties, the temporary restraining order was lifted and

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the Court entered an order of preliminary injunction (Doc. 107) enjoining enforcement of

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the Act pending final judgment on the merits.

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II.

Present Issues in Dispute

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Defendants have each individually moved to dismiss some or all of the claims

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brought against them on the basis that they are improper parties to this action. (Docs. 40,

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41, 44, 46.) Defendants also challenge Plaintiffs’ standing. (See Docs. 87 at 5 n.2; 60 at

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31-33; 73.)6

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First, Defendants move to dismiss on the basis that Plaintiffs “have failed to

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properly assert any claims under 42 U.S.C. § 1983.” (Docs. 41 at 3; 44 at 3; 46 at 3.) A

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plaintiff may bring a cause of action under 42 U.S.C. § 1983 to seek redress for the

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deprivation of a right protected by the Constitution or laws of the United States caused by

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a person acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th

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Cir. 1991). “Section 1983 ‘is not itself a source of substantive rights,’ but merely

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provides ‘a method for vindicating federal rights elsewhere conferred.’” Albright v.

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Plaintiffs further sued the members of the Arizona Board of Osteopathic
Examiners in Medicine and Surgery and the Executive Director of the Osteopathic Board,
Jenna Jones. Those parties have been dismissed by stipulation. (Doc. 111.)
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Finding the challenges to standing are either duplicative or overlapping with issues
presented in the pending motions, as a matter of judicial efficiency and uniformity, the
Court resolves them here.
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Oliver, 510 U.S. 266, 271 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n.3

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(1979)). Defendants argue that Plaintiffs fail to sufficiently state a § 1983 claim because

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they do not set forth the statutory elements and “make reference to 42 U.S.C. § 1983 only

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once.” (Docs. 41 at 7; 44 at 8; 46 at 8.) This argument is flatly rejected. Plaintiffs allege

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that they bring a cause of action under 42 U.S.C. § 1983 for declaratory relief declaring

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the Act unconstitutional, and for prospective injunctive relief restraining Defendants, and

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their employees, agents, and successors in office from enforcing the Act, which, unless

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enjoined, will violate their First and Fourteenth Amendment rights. (Docs. 1 ¶¶ 1-4 and §

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VI; 81-1 ¶¶ 1-4 and § VI.) Nothing more is required. See Johnson v. City of Shelby, Miss.,

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574 U.S. ___, 135 S. Ct. 346, 347 (2014).7

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Second, Defendants argue that Plaintiffs fail to state a claim under § 1983 because

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they do not sufficiently allege facts showing Defendants’ personal participation. This

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argument, while having some surface appeal, misses the mark. True, a state official sued

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in his or her official capacity for injunctive relief is “a person under § 1983 because

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‘official-capacity actions for prospective relief are not treated as actions against the

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State.’” Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 n.10 (1989) (citing

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Kentucky v. Graham, 473 U.S. 159, 165-166 (1985)). However, a plaintiff seeking

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prospective injunctive relief against a state official “is not required to allege a named

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official’s personal involvement in the acts or omissions constituting the alleged

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constitutional violation.” Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114,

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1127 (9th Cir. 2013). “Rather, a plaintiff need only identify the law [] challenged as a

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constitutional violation and name the official within the entity who can appropriately

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respond to injunctive relief.” Id. Plaintiffs have done just that. (See Docs. 1 ¶¶ 1, 11-14;

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81-1 ¶¶ 1, 11-14.)
Defendants nonetheless press that, as a matter of law, they do not have authority to

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See also Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002)
(in determining whether the Eleventh Amendment bars a suit from the onset, “a court
need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an
ongoing violation of federal law and seeks relief properly characterized as prospective.’”
(citation omitted)).
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enforce the Act and therefore are improperly named parties that should be dismissed.

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Whether Defendants, acting in their official capacities as state officials, are “proper

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defendants,” is “really the common denominator of two separate inquiries: first, there is

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the requisite causal connection between their responsibilities and any injury that the

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plaintiffs might suffer, such that relief against the defendants would provide redress [i.e.,

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Article III standing], and second, whether [] jurisdiction over the defendants is proper

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under the doctrine of Ex parte Young, 209 U.S. 123 (1908), which requires ‘some

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connection’ between a named state officer and enforcement of a challenged state law.”

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Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 919 (9th Cir. 2004)

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(citations omitted). See also Culinary Workers Union, Local 226 v. Del Papa, 200 F.3d

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614 (9th Cir. 1999) (discussing that attorney general’s authority to enforce the challenged

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state statute was a question of traceability); National Audubon Society, Inc. v. Davis, 307

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F.3d 835, 846 (9th Cir. 2002) (“whether a named state official has direct authority and

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practical ability to enforce the challenged statute” is a question of whether a plaintiff is

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“circumventing the Eleventh Amendment under Ex parte Young simply by suing any

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state executive official”). These questions, along with Defendants’ remaining challenges

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to Plaintiffs’ standing, will therefore be addressed in turn below.

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III.

Legal Standards

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A.

Article III Standing

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Article III federal courts are limited to deciding “cases” and “controversies.” U.S.

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Const. art. III, § 2; Valley Forge Christian Coll. v. Ams. United for Separation of Church

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& State, Inc., 454 U.S. 464, 471 (1982). “Article III standing” is among one of the

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components that enforces the “case-or-controversy requirement.” Hein v. Freedom from

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Religion Found., Inc., 551 U.S. 587, 597-98 (2007). The doctrine of standing

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encompasses both constitutional requirements and prudential considerations. See Valley

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Forge Christian Coll., 454 U.S. at 471; Sahni v. American Diversified Partners, 83 F.3d

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1054, 1057 (9th Cir. 1996). The plaintiff bears the burden of establishing the existence of

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a justiciable case or controversy, and “‘must demonstrate standing for each claim he
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seeks to press’ and ‘for each form of relief’ that is sought.” Davis v. Federal Election

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Comm’n, 554 U.S. 724, 734 (2008) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S.

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332, 352 (2006)).

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The “irreducible constitutional minimum of standing” is comprised of three

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elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). First, “the plaintiff

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must have suffered an injury in fact - an invasion of a legally protected interest.” Id. “An

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injury sufficient to satisfy Article III must be ‘concrete and particularized’ and ‘actual or

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imminent,’ not ‘conjectural’ or ‘hypothetical.’” Susan B. Anthony List v. Driehaus, 573

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U.S. __, 134 S. Ct. 2334, 2341 (2014) (quoting Lujan, 504 U.S. at 560). “An allegation of

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future injury may suffice if the threatened injury is ‘certainly impending,’ or there is a

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‘substantial risk’ that the harm will occur.” Id. (quoting Clapper v. Amnesty Int’l USA,

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568 U.S. ___, 133 S. Ct. 1138, 1150 n.5 (2013)). Where a plaintiff will sustain “a direct

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injury as a result of the statute’s operation,” Babbitt v. United Farm Workers Nat’l

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Union, 442 U.S. 289, 298 (1979), and there is a responsive threat of state action, “an

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actual arrest, prosecution, or other enforcement action is not a prerequisite to challenging

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the law,” Driehaus, 134 S. Ct. at 2342. Under these circumstances, where a plaintiff

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brings a pre-enforcement challenge, he “satisfies the injury-in-fact requirement where he

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alleges ‘an intention to engage in a course of conduct arguably affected with a

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constitutional interest, but proscribed by a statute, and there exists a credible threat of

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prosecution thereunder.’” Driehaus, 134 S. Ct. at 2342 (quoting Babbitt, 442 U.S. at

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298). See also Libertarian Party of Los Angeles County v. Bowen, 709 F.3d 867, 870 (9th

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Cir. 2013); Lopez v. Candaele, 630 F.3d 775, 785 (9th Cir. 2010).8

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“The constitutional component of ripeness overlaps with the ‘injury in fact’
analysis for Article III standing. Whether framed as an issue of standing or ripeness, the
inquiry is largely the same: whether the issues presented are ‘definite and concrete, not
hypothetical or abstract.’” Wolfson v. Brammer, 616 F.3d 1045, 1058 (9th Cir. 2010)
(citations omitted). See also LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154 (9th Cir. 2000)
(“‘the maturity of such disputes for resolution before a prosecution begins is decided on a
case-by-case basis, by considering the likelihood that the complainant will disobey the
law, the certainty that such disobedience will take a particular form, any present injury
occasioned by the threat of prosecution, and the likelihood that a prosecution will actually
ensue.’” (quoting Blanchette v. Conn. Gen. Ins. Corp., 419 U.S. 102, 143 n.29 (1974))).
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Second, for Article III standing, “there must be a causal connection between the

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injury and the conduct complained of - the injury has to be fairly... traceable to the

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challenged action of the defendant, and not... the result of the independent action of some

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third party not before the court.” Lujan, 504 U.S. at 560. See also Salmon Spawning &

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Recovery Alliance v. Gutierrez, 545 F.3d 1220, 1227 (9th Cir. 2008). The “line of

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causation” between a defendant’s actions and a plaintiff’s alleged harm must be more

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than “attenuated.” Allen v. Wright, 468 U.S. 737, 757 (1984). “A causal chain does not

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fail simply because it has several ‘links,’ provided those links are ‘not hypothetical or

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tenuous’ and remain ‘plausib[le].’” Maya v. Centex Corp., 658 F.3d 1060, 1070 (9th Cir.

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2011) (quoting Nat’l Audubon Soc., 307 F.3d at 849). Third, “it must be likely, as

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opposed to merely speculative, that the injury will be redressed by a favorable decision.”

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Lujan, 504 U.S. at 561. See also Cantrell v. City of Long Beach, 241 F.3d 674, 679 (9th

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Cir. 2001); United States v. City of Arcata, 629 F.3d 986, 989 (9th Cir. 2010).

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The prudential limitations on federal court jurisdiction dictate that: (1) a party

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must ordinarily assert its own legal rights and interests, and not those of others; (2) the

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harm asserted must not be a mere “generalized grievance” (i.e. “abstract questions of

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wide public significance”); and (3) the interest claimed must fall within “the zone of

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interests to be protected or regulated by the statute or constitutional guarantee in

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question.” Valley Forge Christian Coll., 454 U.S. at 474-75; see also Stormans, Inc. v.

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Selecky, 586 F.3d 1109, 1122 (9th Cir. 2009).

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B.

Ex parte Young and Eleventh Amendment Immunity

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Under the Eleventh Amendment to the Constitution of the United States, a State

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may not be sued in federal court without its consent. Pennhurst State Sch. and Hosp. v.

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Halderman, 465 U.S. 89, 100 (1984). Eleventh Amendment immunity extends to state

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departments, agencies, boards, and commissions, and to state employees acting in their

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official capacity because a suit against them is regarded as a suit against the State itself.

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Will, 491 U.S. at 71. An exception to this rule exists under Ex parte Young, supra, which

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permits a state official to be sued under § 1983 in his or her official capacity for
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prospective declaratory or injunctive relief for an alleged violation of federal law.

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Association des Eleveurs de Canards et d’Oies du Quebec v. Harris, 729 F.3d 937, 943

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(9th Cir. 2013); Jackson v. Hayakawa, 682 F.2d 1344, 1351 (9th Cir. 1982). “[I]n a suit

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to enjoin the enforcement of an act alleged to be unconstitutional,” the state officer “must

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have some connection with the enforcement of the act, or else it is merely making him a

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party as a representative of the state, and thereby attempting to make the state a party.”

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Ex Parte Young, 209 U.S. at 157. “[T]hat connection ‘must be fairly direct; a generalized

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duty to enforce state law or general supervisory power over the persons responsible for

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enforcing the challenged provision will not subject an official to suit.’” Coalition to

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Defend Affirmative Action v. Brown, 674 F.3d 1128, 1134 (9th Cir. 2012) (quoting L.A.

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Cnty. Bar Ass’n v. Eu, 979 F.2d 697, 704 (9th Cir. 1992)).

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C.

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Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, an action may be

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dismissed for lack of jurisdiction.9 A Rule 12(b)(1) motion can either be “facial,”

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attacking a pleading on its face and accepting all allegations as true, or “factual,”

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contesting the truth of some or all of the pleading’s allegations as they relate to

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jurisdiction. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). In considering a

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facial challenge to jurisdiction, as here, the Court determines whether the allegations in

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the complaint are insufficient on their face to demonstrate the existence of jurisdiction,

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and dismissal is appropriate only where the plaintiff fails to allege an element necessary

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for subject matter jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th

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Cir. 2004). The material factual allegations of the complaint are presumed to be true and

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construed in favor of the complaining party. Maya, 658 F.3d at 1068.

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Rule 12(b)(1)

Because “Article III standing is a species of subject matter jurisdiction[,]”
Carijano v. Occidental Petroleum Corp., 643 F.3d 1216, 1227 (9th Cir. 2011), it is
properly raised in a Rule 12(b)(1) motion to dismiss[,]” Chandler v. State Farm Mut.
Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010), not in a Rule 12(b)(6) motion for
failure to state a claim upon which relief can be granted, White v. Lee, 227 F.3d 1214,
1242 (9th Cir. 2000). Likewise, “[a]lthough sovereign immunity is only quasijurisdictional in nature, Rule 12(b)(1) is still a proper vehicle for invoking sovereign
immunity from suit.” Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015). See also
Maya, 658 F.3d at 1068.
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IV.

Discussion
Foreground10

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A.

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In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court

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held that a woman has a fundamental liberty interest, protected by the due process clause

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of the Fourteenth Amendment, “to choose to have an abortion before viability and to

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obtain it without undue interference from the State.” 505 U.S. 833, 846 (1992) (plurality

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opinion of Justices O’Connor, Kennedy, and Souter),11 reaffirming in part Roe v. Wade,

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410 U.S. 113 (1973). Casey observed that states also have two legitimate interests that

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may justify regulation of abortion: an interest in promoting potential life and an interest

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in protecting the health of the woman. 505 U.S. at 878. Casey then “struck a balance,”

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Gonzales v. Carhart, 550 U.S. 124, 146 (2007), creating an “undue burden” framework

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to reconcile “the State’s interest with the woman’s constitutionally protected liberty,”

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Casey, 505 U.S. at 876.

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Under this approach, Casey held that the State may promote its interest in

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respecting potential life through measures designed to inform a woman’s decision and to

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persuade her to choose childbirth over abortion. 505 U.S. at 878. By example, the

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Supreme Court held that a State may enact legislation which requires that a woman be

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provided with “information about the nature of the procedure, the attendant health risks

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and those of childbirth, and the probable gestational age of the fetus,” id. at 881, and “be

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informed of the availability of information relating to fetal development and the

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assistance available should she decide to carry the pregnancy to full term,” id. at 883.

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However, the State regulation may not impose an unconstitutional “undue burden” on a

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woman’s liberty interests, by having “the purpose or effect of placing a substantial

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As the Court does not reach the merits, it presents the following for context. See
Catholic League for Religious and Civil Rights v. City and County of San Francisco, 624
F.3d 1043, 1049 (9th Cir. 2010) (the “standing analysis, which prevents a claim from
being adjudicated for lack of jurisdiction,” is not to be confused with or disguised as the
“merits analysis, which determines whether a claim is one for which relief can be granted
if factually true”); Warth v. Seldin, 422 U.S. 490, 500 (1975) (“standing in no way
depends on the merits of the plaintiff’s contention that particular conduct is illegal”).
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This summary refers only to the opinion enunciated by the plurality in Casey.
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obstacle” in a woman’s path in deciding whether to terminate her pregnancy prior to fetal

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viability. Casey, 505 U.S. at 877. The information conveyed or made available to a

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woman must be “truthful and not misleading.” Casey, 505 U.S. at 881. “[T]he means

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chosen by the State to further the interest in potential life must be calculated to inform the

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woman’s free choice, not hinder it,” id. at 877, and “a state measure designed to persuade

6

her to choose childbirth over abortion” must be “reasonably related to that goal,” id. at

7

878. See also Gonzales, 550 U.S. at 158 (“Where it has a rational basis to act… the State

8

may use its regulatory power to… promote respect for life, including life of the unborn”).

9

A State may also permissibly enact legislation requiring a physician to convey to a

10

woman, and provide her with material containing information mandated by the State “as

11

part of obtaining her consent to an abortion.” Casey, 505 U.S. at 884.12 However, that

12

requirement must not interfere with the private doctor-patient relationship such that it

13

imposes a substantial obstacle on a woman seeking an abortion. Id.

14

In Wooley v. Maynard, the Supreme Court held that the First Amendment protects

15

“the right of freedom of thought,” which “includes both the right to speak freely and the

16

right to refrain from speaking at all.” 430 U.S. 705, 714 (1977). Citing to Wooley, Casey

17

observed a physician’s First Amendment “right[] not to speak… as part of the practice of

18

medicine.” 505 U.S. at 884. The Supreme Court noted that the right is “subject to

19

reasonable licensing and regulation by the State.”13 Casey, 505 U.S. at 884

20

(comparatively citing Whalen v. Roe, 429 U.S. 589, 603 (1977) (holding State legislation

21

was a reasonable exercise of its broad police powers in regulating the administration of

22

drugs by health professionals where “the decision to prescribe, or to use, is left entirely to

23

the physician and the patient.”)).

24
25
26
27
28

12

Casey noted as a preliminary matter, that the Pennsylvania “statute [did] not
prevent the physician from exercising his or her medical judgment.” Casey, 505 U.S. at
884.

13

The parties dispute whether the undue standard espoused by Casey applies to
Plaintiffs’ First Amendment claim. The Court in no manner decides that question or
alludes to its answer here.
12

1

B.

Article III Injury-In-Fact

2

The Act requires that prior to performing or inducing an abortion, physicians must

3

inform every patient that “i[t] may be possible to reverse the effects of a medication

4

abortion,” and of the availability of “[i]nformation on and assistance with reversing the

5

effects of a medication abortion.” Ariz. Rev. Stat. § 36-2153(A)(2)(h) and (i). The Act

6

requires physicians to convey, and every patient seeking an abortion to receive from the

7

physician as a part of the informed consent process, the state-mandated message orally

8

and in person, in a private medical setting. § 36-2153(A)(3).

9

Plaintiffs have alleged a sufficiently concrete and imminent injury to physicians

10

and patients arising from the operation of the Act, and that Plaintiffs are the appropriate

11

parties to challenge it based on an assertion of physicians’ and patients’ constitutional

12

rights.
(1)

13

Physicians

14

Physician-Plaintiffs “have alleged ‘an intention to engage in a course of conduct

15

arguably affected with a constitutional interest’” under the First Amendment that is

16

“‘proscribed by [the] statute’ they wish to challenge.” Driehaus, 134 S. Ct. at 2344

17

(quoting Babbitt, 442 U.S. at 298). See Wooley, supra; Casey, supra. Plaintiffs allege

18

that the Act compels physicians to deliver a state-mandated message which is against

19

their best medical judgment, contrary to the accepted standard of care, and is one “that

20

they would not otherwise tell their patients.” (Docs. 1 ¶¶ 46-57; 81-1 ¶¶ 49-61.)

21

Physician-Plaintiffs have alleged a credible threat of enforcement of the Act. The

22

informed consent statute provides that a physician who knowingly fails to comply with

23

its provisions, which includes the Act, is guilty of unprofessional conduct and is subject

24

to license suspension or revocation. Ariz. Rev. Stat. § 36-2153(I).14 See Driehaus, 134 S.

25

Ct. at 2345 (“administrative action, like arrest or prosecution, may give rise to harm

26
14

27
28

A physician is also subject to a private cause of action brought in state superior
court by a “woman on whom an abortion has been performed without her informed
consent as required by” the Act, by the woman’s spouse, or the parents of a woman under
the age of 18. § 36-2153(J) and (K).
13

1

sufficient to justify pre-enforcement review”); Doe v. Bolton, 410 U.S. 179, 188 (1973)

2

(finding standing where physicians asserted “a sufficiently direct threat of personal

3

detriment” for performing an abortion that did not meet statutory conditions); Isaacson v.

4

Horne, 716 F.3d 1213, 1221 (9th Cir. 2013) (physician had standing to challenge an

5

abortion law that posed a direct threat of prosecution); Los Angeles Haven Hospice, Inc.

6

v. Sebelius, 638 F.3d 644, 655 (9th Cir. 2011) (finding standing where plaintiff “is the

7

direct object of regulatory action”). As here, “[a] plaintiff who mounts a pre-enforcement

8

challenge to a statute that he claims violates his freedom of speech need not show that the

9

authorities have threatened to prosecute him; the threat is latent in the existence of the

10

statute.” California Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1095 (9th Cir.

11

2003). “The State has not suggested that the newly enacted law will not be enforced, and

12

[the Court] see[s] no reason to assume otherwise.” Virginia v. Am. Booksellers Ass’n,

13

Inc., 484 U.S. 383, 393 (1988).15 Cf. Thomas v. Anchorage Equal Rights Comm’n, 220

14

F.3d 1134, 1140 (9th Cir. 2000) (“When plaintiffs do not claim that they have ever been

15

threatened with prosecution, that a prosecution is likely, or even that a prosecution is

16

remotely possible, they do not allege a dispute susceptible to resolution by a federal

17

court.”) (citation and quotation marks omitted).

18

Whether physicians perform abortions without advising their patients regarding

19

the Act’s medication abortion reversal provisions and face punishment, or unwillingly

20

convey the state-mandated message under threat of prosecution, as alleged, their First

21

Amendment rights are concretely and imminently affected. See Wasden, 376 F.3d at 916-

22

17; Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1000 (9th Cir. 2010)

23

(“[W]hen a challenged statute risks chilling the exercise of First Amendment rights, the

24

Supreme Court has dispensed with rigid standing requirements and recognized ‘self-

25
15

26
27
28

Defendants’ uncertainty as to whether a physician’s failure to comply with the Act
would qualify as a basis to seek an emergency injunction does not make the prospect of
enforcement under Ariz. Rev. Stat. § 36-2153(I) any less credible or more speculative.
(Doc. 46 at 7 n.3.) See § 32-1454(A)(2) (“An injunction shall issue forthwith to enjoin the
practice of medicine by… [a] doctor of medicine whose continued practice will or well
might cause irreparable damage to the public health and safety...”)
14

1

censorship’ as a harm that can be realized even without an actual prosecution.” (citations

2

and quotation marks omitted)); Getman, 328 F.3d at 1094 (“In an effort to avoid the

3

chilling effect of sweeping restrictions, the Supreme Court has endorsed what might be

4

called a ‘hold your tongue and challenge now’ approach rather than requiring litigants to

5

speak first and take their chances with the consequences.”); McCormack v. Herzog, 788

6

F.3d 1017, 1027 (9th Cir. 2015) (parties “need not even claim a ‘specific intent to violate

7

the statute,’” they need only possess “reasonable fear a statute would be enforced against

8

it if it engaged in certain conduct”) (citations omitted); Arizona Right to Life Political

9

Action Committee v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003); Bland v. Fessler, 88

10

F.3d 729, 737 (9th Cir. 1996).

11

Further, contrary to Defendants’ contention, Planned Parenthood and Desert Star

12

are appropriate representatives to litigate and assert the First Amendment rights of the

13

third-party physicians that they employ. (Doc. 87 at 5 n.2; Doc. 73.) See Int’l Union,

14

United Auto., Aerospace and Agr. Implement Workers of Am. v. Brock, 477 U.S. 274, 281

15

(1986) (“injury to an organization’s members will satisfy Article III and allow that

16

organization to litigate in federal court on their behalf”); Hunt v. Washington State Apple

17

Adver. Comm’n, 432 U.S. 333, 342 (1977) (“an association may have standing solely as

18

the representative of its members”); Colwell v. Dept. of Health and Human Servs., 558

19

F.3d 1112, 1121 (9th Cir. 2009); cf. Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097,

20

1101 (9th Cir. 2004) (organizational standing, in comparison to representational standing

21

by an organization, turns on “whether the organization itself has suffered an injury in

22

fact”) (emphasis added). Planned Parenthood and Desert Star are “in every practical

23

sense identical” to the physicians it employs. Nat’l Ass’n for Advancement of Colored

24

People (NAACP) v. State of Ala. ex rel. Patterson, 357 U.S. 449, 459 (1958). As

25

previously addressed, physicians would otherwise have standing to sue in their own right.

26

The interests they seek to protect are germane to their purpose of providing reproductive

27

health care services. Because the parties are seeking injunctive and declaratory relief,

28

individual participation of the physicians employed by Planned Parenthood and Desert
15

1

Star is unnecessary. See Hunt, supra; San Diego County Gun Rights Comm. v. Reno, 98

2

F.3d 1121, 1130-31 (9th Cir. 1996).

3

(2)

Patients

4

Plaintiffs have sufficiently alleged a concrete “invasion of [patients’] legally

5

protected interests” under the Fourteenth Amendment to decide to have an abortion prior

6

to fetal viability without undue government interference. Lujan, 504 U.S. at 560. See

7

Casey, supra. Plaintiffs allege that the Act compels patients seeking an abortion to

8

receive information from their physician that is untruthful and/or misleading, to receive

9

and be offered information from their physician that they allege is irrelevant and not

10

tailored to their specific medical situations, and to receive and be offered information

11

from their physician that interferes with the informed consent process. (Docs. 1 ¶¶ 49-55,

12

59; 81-1 ¶¶ 52-59, 63.)

13

Further, because “the First Amendment has a penumbra where privacy is protected

14

from governmental intrusion,” Plaintiffs have also alleged a concrete invasion of patients’

15

legally protected interests under the First Amendment to receive information concerning

16

medical treatment from a physician exercising his or her professional medical judgment.

17

Griswold v. Connecticut, 381 U.S. 479, 483 (1965); Whalen v. Roe, 429 U.S. 589, 600

18

n.25 (1977); Lujan, supra. See also Conant v. Walters, 309 F.3d 629, 643 (2002) (“It is

19

well established that the right to hear—the right to receive information—is no less

20

protected by the First Amendment than the right to speak.”); Hill v. Colorado, 530 U.S.

21

703, 716-18 (2000); Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457

22

U.S. 853, 867 (1982) (“the right to receive ideas follows ineluctably from the sender’s

23

First Amendment right to send them… the right to receive ideas is a necessary predicate

24

to the recipient’s meaningful exercise of his own rights of speech”); Virginia State Bd. of

25

Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756-57 (1976)

26

(protection under the First Amendment extends “to the communication, to its source and

27

to its recipients both.”); Griswold, 381 U.S. at 483 (the right of freedom of speech

28

includes “the right to receive, the right to read and freedom of inquiry”) (citation
16

1

omitted).16

2

The alleged injury to patients’ Fourteenth Amendment rights is imminent because

3

“[t]he woman’s exercise of her right to an abortion, whatever its dimension, is []

4

necessarily at stake” and is susceptible to “incipient mootness.” Singleton v. Wulff, 428

5

U.S. 106, 117, 126 (1976). The danger of sustaining an injury to their First Amendment

6

rights is equally imminent; the injury is inherent in the challenged statute and likelihood

7

that the state-mandated message will be received is derivative of the likelihood that their

8

physician will speak it. See supra.

9

Further, as a prudential matter, Plaintiffs are the appropriate parties to challenge

10

the Act on the basis of patients’ alleged constitutional rights. As recognized by the

11

parties, there is a legion of cases that have come before the Supreme Court and Ninth

12

Circuit in which both physicians and abortion facilities were permitted to litigate on

13

behalf of third-party patients to enjoin state laws restricting abortion rights. See Griswold,

14

381 U.S. at 481 (physicians asserted constitutional rights of patients to whom they

15

prescribed contraceptive devices); Singleton, 428 U.S. at 118 (recognizing that “there

16

seems little loss in terms of effective advocacy from allowing [an assertion of a woman’s

17

right to an abortion] by a physician”); Planned Parenthood of Central Missouri v.

18

Danforth, 428 U.S. 52, 62 (1976); Casey, 505 U.S. at 845 (abortion providers challenged

19

a state statute on behalf of third-party women who seek abortion services); McCormack,

20

788 F.3d at 1027 (“a physician possesses standing on his own behalf and on that of his

21

patients to challenge the validity of [an] abortion statute.”); Isaacson, 716 F.3d at 1221

22

(allowing physicians to bring challenges to abortion laws on behalf of their patients);

23

Wasden, 376 F.3d at 917 (“physicians and clinics performing abortions are routinely

24

recognized as having standing to bring broad facial challenges to abortion statutes.”);

25

16

26
27
28

The Court recognizes that Plaintiffs have not advanced this alternative legal
theory. Because this case has yet to progress to the merits, the Court raises this question
as one of interest that is antecedent to the issues before it. See U.S. Nat’l Bank of Or. v.
Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447 (1993); Kamen v. Kemper Fin. Servs.,
Inc., 500 U.S. 90, 99 (1991). Nevertheless, the decision to pursue their claim under this
legal theory remains within Plaintiffs’ discretion. In other words, the Court has offered a
spoon, but will not stir the pot.
17

1

Planned Parenthood Arizona, Inc. v. Humble, 753 F.3d 905, 910 (9th Cir. 2014)

2

(physicians and clinics “brought their claims on behalf of themselves, their patients, and

3

the physicians they employ”).

4

Physician-Plaintiffs are appropriate parties to assert the rights of patients seeking

5

an abortion. See Singleton, 428 U.S. at 117 (“it is generally appropriate to allow a

6

physician to assert the rights of women patients as against governmental interference with

7

the abortion decision”). The intimacy inherent to the physician-patient relationship and

8

the necessary involvement of the physician in the abortion process makes them uniquely

9

qualified to advocate on behalf of patients and their abortion rights. See Singleton, 428

10

U.S. at 117 (third-party standing looks to “the relationship of the litigant to the person

11

whose right he seeks to assert”); Isaacson, 716 F.3d at 1221. The difficulty for women to

12

directly vindicate their rights without compromising their privacy and the imminent

13

mootness of their claims makes it appropriate for physicians to do so. Singleton, 428 U.S.

14

at 118 (third-party standing looks to “the ability of the third party to assert his own

15

right”); Isaacson, 716 F.3d at 1221. See also Broadrick v. Oklahoma, 413 U.S. 601, 612

16

(1973) (“Litigants, therefore, are permitted to challenge a statute not because their own

17

rights of free expression are violated, but because of a judicial prediction or assumption

18

that the statute’s very existence may cause others not before the court to refrain from

19

constitutionally protected speech or expression.”); NAACP, supra (allowing standing to

20

assert First and Fourteenth Amendments rights on behalf of third parties). Physicians

21

have a direct stake in the informed consent process as a corollary of their professional

22

responsibilities, and in challenging the specific provision of the Act because they are

23

vulnerable to prosecution if they do not carry out its requirements. See Doe, 410 U.S. at

24

188.

25

The Court observes that none of the precedents cited above examined whether

26

abortion facilities, as entities, could assert the rights of patients, either deferring the

27

question because other parties had standing to assert the claims at issue, or justiciability

28

was not questioned. Undertaking that consideration, the Court sees no reason to arrive at
18

1

a different conclusion. Where, as here, the exercise of patients’ rights is inextricably

2

bound with the activities of their physicians, so is the provider whose operation is

3

dependent on the existence of that relationship. In this regard, an abortion facility has a

4

“‘direct stake’ in the abortion process.” McCormack, 788 F.3d at 1028; Am. Booksellers

5

Ass’n, 484 U.S. at 393 (bookseller organizations and booksellers had standing to sue

6

based on alleged infringement of bookbuyers’ First Amendment rights); see also

7

Eisenstadt v. Baird, 405 U.S. 438, 445 (1972) (distributor of contraceptives who acted as

8

“an advocate of the rights of persons to obtain contraceptives and those desirous of doing

9

so” had third-party standing); Pierce v. Society of the Sisters of the Holy Names of Jesus

10

and Mary, 268 U.S. 510, 536 (1925) (enterprises permitted to litigate against interference

11

with the freedom of patrons or customers). The ability to advocate for the interests of

12

physicians and the patients they serve is not severed by the corporate form, nor does its

13

entity status diminish the reasons which endorse third-party representation of women

14

seeking an abortion. See Pennsylvania Psychiatric Soc. v. Green Spring Health Servs.,

15

Inc., 280 F.3d 278, 293 (3rd Cir. 2002) (“So long as the association’s members have or

16

will suffer sufficient injury to merit standing and their members possess standing to

17

represent the interests of third-parties, then associations can advance the third-party

18

claims of their members without suffering injuries themselves.”). Therefore, Planned

19

Parenthood and Desert Star are also appropriate parties to assert the constitutional rights

20

of patients.

21

Defendants argue that this case is distinguishable from the litany, and maintain it

22

would be inappropriate to allow Plaintiffs to challenge the Act based on the asserted

23

rights of patients. First, Defendants argue that unlike its predecessors that necessarily

24

involved challenges to law regulating the right to seek or obtain an abortion, this case

25

challenges government-regulated informed consent. (Doc. 87 at 5.) This argument is

26

summarily rejected. See Casey, 505 U.S. at 884 (the “abortion right” evolves from two

27

“general rights… the right to make family decisions and the right to physical autonomy”).

28

Defendants next argue that this case is distinguishable because “there is no ‘close
19

1

relationship’ which makes it appropriate for Plaintiffs to step into the shoes of patients

2

and assert their legal rights.” (Doc. 87 at 7; see also Doc. 60 at 31-33.) While a patient

3

seeks “to obtain information concerning all available treatment options,” Defendants

4

contend that Plaintiffs are “seeking to prevent her from doing so.” (Doc. 87 at 7.)

5

Because Plaintiffs seek “to withhold information from patients which might otherwise aid

6

such patients in making a more free and informed abortion decision,” their “position and

7

purpose in this matter are adverse to the interests and welfare of those patients.” (Doc. 87

8

at 5-7.) This rationale is spurious and amounts to nothing but a poorly veiled attempt to

9

litigate the merits in reverse.
C.

10

Article III Traceability and Ex parte Young Exception
(1)

11

Members of Arizona Medical Board and Executive Director

12

Plaintiff sues the members of the Arizona Medical Board (“Members” or

13

“Board”),17 and Patricia E. McSorley, the Board’s Executive Director, in their official

14

capacities. Plaintiffs allege that they have the authority to enforce the Act. (Docs. 1 ¶¶

15

13-14; 81-1 ¶¶ 13-14.)

16

“The primary duty of the board is to protect the public from unlawful,

17

incompetent, unqualified, impaired or unprofessional practitioners of allopathic medicine

18

through licensure, regulation and rehabilitation of the profession” in Arizona. Ariz. Rev.

19

Stat. § 32-1403;18 (Docs. 1 ¶ 14; 81-1 ¶ 14). Board Members have statutory authority to

20

initiate investigations of physician unprofessional conduct, and to discipline licensed

21

physicians. § 32-1403(A)(2) and (5); § 32-1451(A) and (J); (Docs. 1 ¶ 14; 81-1 ¶ 14).

22

The Executive Director, who is not a member of the Board, has the authority to “employ,

23

evaluate, dismiss, discipline and direct professional, clerical, technical, investigative and

24
17

25
26
27
28

The named Board Members include: Richard T. Perry, M.D. (Board Chair), James
Gillard, M.D. (Board Vice Chair), Jodi A. Bain, Marc D. Berg, M.D., Donna Brister, R.
Screven Farmer, M.D., Gary R. Figge, M.D., Robert E. Fromm, M.D., Paul S. Gerding,
Lois Krahn, M.D., Edward G. Paul, M.D., and Wanda J. Salter. (Docs. 1 ¶ 14; 81-1 ¶ 14.)
18

“Administrative agencies have no common law or inherent powers-their powers
are limited by their enabling legislation.” Ariz. State Bd. of Regents ex rel. Ariz. State
Univ. v. Ariz. State Pers. Bd., 985 P.2d 1032, 1034 (Ariz. 1999).
20

1

administrative personnel necessary to carry on the work of the board.” § 32-1405(A) and

2

(C)(1). She has authority to “[i]nitiate an investigation if evidence appears to demonstrate

3

that a physician may be engaged in unprofessional conduct,” § 32-1405(C)(12), and to

4

review complaints alleging unprofessional conduct, § 32-1405(C)(21). (Docs. 1 ¶ 13; 81-

5

1 ¶ 13.) She has authority to “[p]rovide assistance to the attorney general in preparing and

6

sign and execute disciplinary orders, rehabilitative orders and notices of hearings as

7

directed by the board,” § 32-1405(C)(14), and performs “all other administrative,

8

licensing or regulatory duties required by the board,” § 32-1405(C)(28).

9

Board Members do not dispute that they have authority to enforce violations of the

10

Act by Physician-Plaintiffs. Rather, the Board Members argue that Planned Parenthood

11

and Desert Star may not bring claims against them because the Board “does not have any

12

power or duty to administer or enforce licensure requirements for abortion clinics.” (Doc.

13

41 at 4.) The Board’s authority to sanction institutions and clinics is immaterial to

14

whether their conduct is fairly traceable to Plaintiffs’ alleged injuries, or whether they

15

have some connection with the enforcement of the Act. Rather, as previously addressed,

16

Planned Parenthood and Desert Star sue on the basis of the alleged injuries of third-party

17

physicians licensed to practice medicine by the Board. This is sufficient.

18

Next, McSorley argues that she lacks the necessary statutory authority to enforce

19

the Act. Instead, she contends, her duties “are largely administrative and ministerial.”

20

(Doc. 40 at 1.) She argues that although she has authority to “initiate investigations into

21

potential unprofessional conduct under A.R.S. § 32-1405(C)(12),” and “review

22

complaints filed under A.R.S. § 32-1451,” she has no power to “discipline.” (Doc. 72 at

23

3.) McSorley further argues that while she “can ‘provide assistance to the attorney

24

general in preparing and sign and execute disciplinary orders, rehabilitative orders and

25

notices of hearing’… she has no ability to take any of those actions absent Board

26

approval and direction.” (Doc. 72 at 3.) Her authority to “sign orders as directed by the

27

Board… is purely ministerial.” (Doc. 40 at 2.)

28

Contrary to her characterization, neither the initiation of an investigation or the
21

1

review of complaints qualifies as an inconsequential step in the road to license

2

suspension or revocation. See Webb v. State ex rel. Ariz. Bd. of Med. Exam’rs, 48 P.3d

3

505, 508 (Ariz. Ct. App. 2002) (noting that a physician has a property interest embodied

4

in a license to practice medicine, and even in an investigation for professional censure,

5

must be afforded with due process of law). McSorley need only have some connection

6

with and be fairly traceable to the enforcement of the Act from which Plaintiffs’ alleged

7

injuries arise; her conduct need not be the first or final step “in the chain of causation.”

8

Bennett v. Spear, 520 U.S. 154, 168-169 (1997). See also Lexmark Int’l, Inc. v. Static

9

Control Components, Inc., 572 U.S. ___, 134 S. Ct. 1377, 1390 (2014) (“the proximate-

10

cause requirement generally bars suits for alleged harm that is ‘too remote’ from the

11

defendant’s unlawful conduct.”).

12

Nor is McSorley’s authority to sign and issue an order of license suspension or

13

revocation simply paperwork. McSorley has “a powerful coercive effect on the action

14

agency” because she is assigned with the authority to assist and give effect to the Act

15

through her authority to carry out vital steps in the disciplinary process. Bennett, 520 U.S.

16

at 169. See also Ritland v. Ariz. State Bd. of Med. Exam’rs, 140 P.3d 970, 972 (Ariz. Ct.

17

App. 2006) (it is the action of the Board, not the ALJ, “that ultimately finds a person

18

guilty of unprofessional conduct and enters disposition of the person’s license.” (citing

19

Ariz. Rev. Stat. § 32-1451(M))). If Plaintiffs’ alleged injuries were the result of “the

20

independent action of some third party not before the court,” those injuries would not be

21

fairly traceable to McSorley or to the actions of the other Defendants before the Court.

22

Bennett, 520 U.S. at 169. However, the nexus between her conduct and Plaintiffs’ alleged

23

injuries does not cease simply because there are others who are necessary links in the

24

causal chain. See Maya, 658 F.3d at 1070 (“A causal chain does not fail simply because it

25

has several ‘links,’ provided those links are ‘not hypothetical or tenuous” and remain

26

‘plausible.’”) (quoting Nat’l Audubon Soc., 307 F.3d at 849); Clapper, 133 S. Ct. at 1148

27

(injury cannot be the result of an “attenuated chain of possibilities”).

28

The conduct of the Board Members and McSorley bears a sufficient causal
22

1

connection to Plaintiffs’ alleged injuries arising from the Act. Their specific statutory

2

authority to prosecute violations of the Act, along with their duty to do so, establishes

3

that they both have the requisite “connection with the enforcement” of the Act. See

4

Culinary Workers Union, 200 F.3d at 619 (citing Okpalobi v. Foster, 190 F.3d 337, 347

5

(5th Cir. 1999) (observing that Article III justiciability and Eleventh Amendment

6

immunity present “a closely related—indeed, overlapping—inquiry”); Harris, 729 F.3d

7

at 943.
(2)

8

Arizona Attorney General

9

Mark Brnovich is sued in his official capacity as the Arizona Attorney General.

10

Plaintiffs allege that Brnovich has the authority to enforce the Act because the Attorney

11

General is in “charge of” the Department of Law, is the “chief legal officer of the state,”

12

Ariz. Rev. Stat. § 41-192(A), and serves as “the legal advisor of the departments of this

13

state and render such legal services as the departments require,” § 41-192(A)(1). (Docs. 1

14

¶ 11; 81-1 ¶ 11.)

15

Brnovich argues that he is not a proper party because, in his capacity as Attorney

16

General, he is not conferred with independent authority to take disciplinary action against

17

physicians and therefore lacks the requisite authority to enforce the Act. (Doc. 75 at 3.)

18

He maintains that the Attorney General lacks authority to initiate license revocation or

19

injunction proceedings against physicians (Docs. 46; 75 at 7);19 he serves only in the

20

“role as a legal advisor and not as a policy maker” (Doc. 75 at 7-8); and is merely “the

21

attorney for the agency, no more,” (Doc. 46 at 7 (quoting Santa Rita Mining Co. v. Dep’t

22

of Prop. Valuation, 530 P.2d 360, 363 (Ariz. 1975)). As above, this argument also falls

23

short. The Attorney General’s independent authority, ability to initiate proceedings, and

24

advisory responsibilities do not circumscribe whether there is a sufficient causal

25
19

26
27
28

Brnovich argues that the Attorney General lacks authority to “enforce” the Act as
defined under Arizona law. (Doc. 75); Ariz. State Land Dep’t v. McFate, 348 F.3d 912
(Ariz. 1960). While the scope of state statutory authority to administer the law is critical
to whether Brnovich is a proper party, the State’s common law definition of “enforce” is
not. The term may often be embedded in Article III standing and Eleventh Amendment
discussions, but the ability to “enforce” the law is not a static concept in application.
23

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connection between his conduct and the alleged injuries that will arise from the Act’s

2

operation.

3

The Attorney General has “a powerful coercive effect on the action agency”

4

because he is assigned with the authority to assist and give effect to the Act through his

5

authority to prosecute it. Bennett, 520 U.S. at 169. Where a licensee’s right to practice

6

medicine is implicated, such as by license revocation or suspension by the Board, a

7

formal administrative hearing must be initiated. See Ritland, 140 P.3d at 972; Ariz. Rev.

8

Stat. § 32-1451(D) and (J). The representation of an agency official in an administrative

9

hearing to revoke or suspend a professional license is the “practice of law,” and is a

10

prosecutorial function that may only be performed by a licensed attorney. Romley v.

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Arpaio, 40 P.3d 831, 835 (Ariz. Ct. App. 2002) (citing State Bar of Ariz. v. Ariz. Land

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Title & Trust Co., 366 P.2d 1, 14 (Ariz. 1961); Ariz. Sup. Ct. R. 31(a)(3)). With

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exception to instances where a conflict of interest exists, only the Attorney General may

14

serve as counsel and prosecutor in those proceedings. See Ariz. Rev. Stat. § 41-

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1092.11(B); § 41-193(A)(2) (“Unless otherwise provided by law the department shall…

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when deemed necessary by the attorney general, prosecute and defend any proceeding in

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a state court other than the supreme court in which the state…is a party or has an

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interest”); § 41-192(D) (“no state agency other than the attorney general shall employ

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legal counsel or make an expenditure or incur an indebtedness for legal services”). If the

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Board wishes to pursue an action or maintain a defense that the Attorney General

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determines is not legally supportable or runs afoul of his constitutional obligations, he

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may not pursue it on the agency’s behalf. See § 41-192(E) and (F); § 38-231(A) and (E);

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Ariz. Sup. Ct. R. 42, ER 3.1; Ariz. Sup. Ct. R. 41(d). Upon a finding that a physician is

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guilty of unprofessional conduct, the Attorney General has authority to prepare

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disciplinary orders. §§ 32-1405(C)(12), 1451(M).

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Although he may not carry out the first or final act of discipline, Brnovich is

27

conferred with sufficient statutory authority to prosecute physicians such that he has

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some connection with the enforcement of the Act, and there is a sufficient nexus between
24

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his conduct and Plaintiffs’ alleged constitutional injuries. See Wasden, 376 F.3d at 919;

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Bennett, 520 U.S. at 168-169. Plaintiffs’ alleged injuries are not the result of “the

3

independent action of some third party not before the court.” Id. Nor is the Attorney

4

General’s conduct simply a single link in an “attenuated chain of possibilities.” Clapper,

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133 S. Ct. at 1148. Rather, the Attorney General’s actions, when considered in tandem

6

with the actions of the Board and its Director, form a causal chain that is both clear and

7

plausible. See Maya, 658 F.3d at 1070.
(3)

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Director of Arizona Department of Health Services

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Plaintiffs allege that the Arizona Department of Health Services “has authority to

10

assess a penalty, revoke a clinic license, or take other disciplinary action against a clinic

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for violating the Act.” (Docs. 1 ¶ 20; 81-1 ¶ 20.) Plaintiffs sue Cara Christ, M.D. in her

12

official capacity as ADHS Director. (Docs. 1 ¶ 12; 81-1 ¶ 12.)

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Christ moves to dismiss Physician-Plaintiffs’ claim against her because she lacks

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authority to enforce the Act against them. (Doc. 44.)20 In this instance, the Court agrees.

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In fact, the Court finds that Plaintiffs do not offer any allegation showing Christ has any

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authority to implement or prosecute violations of the Act – Ariz. Rev. Stat. § 36-

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2153(A)(2)(h) and (i).

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ADHS is vested with the duty to “[p]rotect the health of the people of the state,”

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Ariz. Rev. Stat. § 36-132(A)(1), and is responsible for licensing and regulating health

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care institutions, § 36-132(A)(17). “The direction, operation and control of [ADHS] are

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the responsibility of the director.” § 36-102(B). Christ is responsible for performing “all

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duties necessary to carry out the functions and responsibilities of the department,” § 36-

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136(A)(2); for “[a]dminister[ing] and enforc[ing] the laws relating to health and

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sanitation and the rules of [ADHS],” § 36-136(A)(4); and for “mak[ing] and amend[ing]

25

rules necessary for the proper administration and enforcement of the laws relating to the

26

20

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Plaintiffs respond that Court need not determine whether they have standing to sue
Christ because they have demonstrated standing on other grounds. (Doc. 66 at 14-15
(citing Wasden, 376 F.3d at 918).) This argument is misplaced. Unlike in Wasden, there
remains a question as to whether there is any nexus between Christ’s authority to enforce
the Act and Plaintiffs’ alleged injuries.
25

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public health,” § 36-136(F), including those “relating to the abortion procedure,” § 36-

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449.03(E).

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Plaintiffs allege that Christ “has the power and duty to administer and enforce

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licensure requirements for healthcare institutions, including abortion clinics.” (Docs. 1 ¶

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12; 81-1 ¶ 12). Plaintiffs do not, however, allege any basis which suggests health care

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institutions or abortion clinics, such as Planned Parenthood or Desert Star, would be

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penalized for violating the Act. By way of citation, Plaintiffs allege that Christ has

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authority to suspend or revoke the license of any health care institution if its owners,

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officers, agents or employees who violate the “chapter” (i.e., the laws governing health

10

care institutions, including abortion clinics)21 or the rules adopted by ADHS, Ariz. Rev.

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Stat. § 36-427(A); to enjoin operation of a health care institution or abortion clinic if she

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believes that a violation of the laws governing health care institutions and abortion clinics

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endanger the health, safety, or welfare of a patient, § 36-429(A)(1); to enjoin operation of

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a health care institution or abortion clinic that exceeds the range of services for which it is

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licensed, § 36-430; to penalize an abortion clinic that “is not adhering to the licensing

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requirements… or any other law or rule concerning abortion,” § 36-449.02(F); to

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penalize an abortion clinic that “is not in substantial compliance” with the laws governing

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abortion clinics or the rules, § 36-449.03(I)(1); and to “assess a civil penalty against a

19

person who violates” the laws governing health care institutions and abortion clinics or

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the rules adopted by ADHS, § 36-431.01(A). (Docs. 1 ¶¶ 12, 20; 81-1 ¶¶ 12, 20.) Yet,

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Plaintiffs do not point to any law or rule that requires health care institutions or abortion

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clinics to deliver the Act’s message to patients, to ensure physician compliance with the

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Act, or to otherwise carry out the Act.22 Cf. Planned Parenthood Arizona, Inc. v. Humble,

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21

25
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The “chapter” regulating health care institutions, including abortion clinics, is
contained at Chapter 4, Title 36 of the Arizona Revised Statutes (Ariz. Rev. Stat. §§ 36401 – 36-450.02).
22

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Plaintiffs do not allege that Planned Parenthood or Desert Star will knowingly
assist or conceal violations of the Act by their physicians. See Ariz. Rev. Stat. § 321451(A) and (B) (discussing that health care institutions and their staff must report to the
Arizona Medical Board in good faith if informed of a doctor’s unprofessional conduct).
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753 F.3d 905 (9th Cir. 2014) (involving a challenge to a state statute and rule regulating

2

abortion clinics that required medications used to induce abortions be administered in

3

compliance with Food and Drug Administration’s on-label regimen).

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For example, under the rules adopted by ADHS, an abortion clinic director must

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ensure that before an abortion is performed on a patient, written consent has been signed

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and dated by the patient, and information has been provided to the patient “on the

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abortion procedure including alternatives, risks, and potential complications.” Ariz.

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Admin. Code § R9-10-1508(E)(1)-(2) (eff. Apr, 1, 2014). This rule does not require that

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written consent must be obtained in the manner proscribed by the Act, or any part of the

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informed consent statute. Cf. Ariz. Rev. Stat. § 36-449.03(K) (“The rules adopted by the

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director pursuant to this section do not limit the ability of a physician or other health

12

professional to advise a patient on any health issue”). Thus, while Christ has authority to

13

penalize a health care institution or abortion clinic that fails to comply with § R9-10-

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1508(E), this power has no bearing on her ability to take disciplinary action against an

15

institution or clinic for a violation of the Act.

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Plaintiffs also do not allege that Christ is delegated with any authority to penalize

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physicians. While Plaintiffs allege that “Christ’s Department” is responsible for

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“including information about ‘the reversal of a medication abortion’ on a website,” (Doc.

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81-1 ¶ 12), they do not show how this authority bears some connection with Christ’s

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ability to enforce violations of the Act.23 Therefore, Plaintiffs have failed to allege there is

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some casual connection between her conduct, her ability to enforce any violation of the

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Act, and Plaintiffs’ alleged injuries arising from operation of the Act. Christ will

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25
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23

Plaintiffs do not allege patients are harmed by the availability of or their potential
voluntary exposure to information concerning medication abortion reversal that is posted
on the ADHS’s website. In other words, Plaintiffs’ alleged injuries arise from the
injection of the challenged state-mandated materials into the patient-physician discourse
– not from the posting of the material on ADHS’s website. Thus, Plaintiffs’ allegations,
as amended, do not allege a basis to sue Christ to enjoin her from maintaining the website
or posting information about medication abortion reversal in accordance with Ariz. Rev.
Stat. § 36-2153(C)(8).

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therefore be dismissed.24

2

D.

Redressability

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Extracted from their allegations, Plaintiffs seek to enjoin enforcement of

4

regulations requiring physicians to inform patients that it may be possible to reverse a

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medication abortion, to refer patients to ADHS’s website that contains information

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concerning medication abortion reversal, and to offer and/or provide patients information

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related to medication abortion reversal. Stated in the alternative, Plaintiffs seek to enjoin

8

enforcement of regulations requiring that a patient seeking an abortion be informed by

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her physician that it may be possible to reverse a medication abortion, be referred to

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ADHS’s website by her physician that contains information related to medication

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abortion reversal, and be offered and/or provided information regarding medication

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abortion reversal by her physician.

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Because “defendants have the power to discipline,” an injunction prohibiting

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Defendants from enforcing violations of the Act will redress some of Plaintiffs’ alleged

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injuries. Wolfson, 616 F.3d at 1056.25 As alleged, physicians would not be compelled to

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deliver the Act’s message under fear of punishment, and would be free to counsel

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patients seeking an abortion in a manner consistent with their medical judgment. See

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Wolfson, 616 F.3d at 1056-1057 (“Without a possibility of the challenged canons being

19

enforced, those canons will no longer have a chilling effect on speech”). This relief

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extends to redress patients’ alleged injuries. Physician-Plaintiffs allege that but-for the

21

Act, they would not deliver its message to patients. Therefore, as alleged, a woman

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24

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Because the Court cannot say that it is clear that the claim against Christ could not
be saved by any amendment, she will be dismissed without prejudice. The Court cautions
that should Plaintiffs seek to reinstate Christ by amendment, any such claim must be
alleged with specificity.
25

Declaratory relief would settle “some dispute which affects the behavior of the
defendant[s] toward the plaintiff[s].” Hewitt v. Helms, 482 U.S. 755, 761 (1987). Further,
although a finding by the district court that the provision is unconstitutional would not be
binding, it is likely that a private suit commenced in state superior court based on a
violation of the Act would not be entertained. See Simon v. E. Ky. Welfare Rights Org.,
426 U.S. 26, 38 (1976) (“the relevant inquiry is whether... the plaintiff has shown an
injury to himself that is likely to be redressed by a favorable decision.”).
28

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seeking an abortion would be free to decide whether to terminate her pregnancy without

2

the injection of a message from her physician that is false, misleading, and/or irrelevant,

3

and be advised by her physician concerning medical treatment in a manner that is

4

consistent with the physician’s medical judgment.

5

Defendants argue that an injunction of the Act responsive to physicians’ First

6

Amendment claim would redress all of Plaintiffs’ alleged injuries; “Plaintiffs would

7

neither have to inform their patients of the existence of the website nor provide them with

8

any information or documentation regarding it.” (Doc. 87 at 3.) Therefore, because

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redress in connection with Plaintiffs’ remaining claims “vis-à-vis the website” would be

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effectively moot, Defendants maintain Plaintiffs lack standing to assert the rights of

11

patients. (Doc. 87 at 3.) This reasoning is flawed. The possibility that Plaintiffs would

12

prevail on one claim and obtain relief which would redress the other has no bearing on

13

whether there is currently a live justiciable controversy.

14

Plaintiffs however do acknowledge that an injunction of the Act, alone, would not

15

offer complete redress for the injuries that they have alleged. They observe that

16

“[i]ndependent of the Act,” the informed consent statute requires that patients be

17

informed by their physician of the ADHS website which contains information regarding

18

medication abortion reversal, Ariz. Rev. Stat. § 36-2153(A)(2)(f),26 and be offered and

19

provided a printed copy of those materials if they choose to review them, § 36-

20

2153(A)(2)(g). (Doc. 89 at 3.) In doing so, Plaintiffs appear to allude that they are also

21

seeking to enjoin § 36-2153(A)(2)(f) and (g), but deflect by citing they have requested

22

“equitable relief” which will “free Plaintiffs from those unconstitutional requirements.”

23

(Doc. 89 at 3; see also Docs. 1; 81-1 § VI (requesting that the Court “[g]rant such other

24

and further relief as this Court may deem just, proper, and equitable.”).) The Court agrees

25

that, under the same reasoning above, Plaintiffs’ alleged injuries could be relieved by an

26

injunction enjoining the enforcement of § 36-2153(A)(2)(f) and (g), just as an injunction

27

26

28

The statutory provision which requires the ADHS to post information on its
website “on potential ability... to reverse a medication abortion,” § 36-2153(C)(8), went
into effect in 2015. (See Doc. 81-1 ¶¶ 35-37; 82 at 2.)
29

1

against § 36-2153(A)(2)(h) and (i) could. However, given the extraordinary nature of

2

such relief, Plaintiffs will be called to amend their demand and set forth their additional

3

request for injunctive relief with specificity.

4

Nevertheless, while this issue is notable, it is not dispositive of Plaintiffs’

5

standing. Redressability does not require that a favorable decision would relieve “every

6

injury.” Larson v. Valente, 456 U.S. 228, 243 n.15 (1982). Because the alleged injuries

7

would be alleviated to some degree by an injunction of the Act, Plaintiffs have

8

sufficiently alleged standing. See Massachusetts v. EPA, 549 U.S. 497, 526 (2007)

9

(redressability is satisfied where the risk of harm “would be reduced to some extent if

10

petitioners received the relief they seek”).

11

V.

Conclusion

12

Plaintiffs have made a sufficient showing of Article III standing to pursue

13

declaratory and injunctive relief for each of its claims. Finding that Plaintiffs’ have failed

14

to offer sufficient facts showing that their alleged injuries are traceable to Christ and that

15

she possesses the necessary enforcement authority under Ex parte Young, she will be

16

dismissed from this action. For the reasons above, the remaining motions to dismiss will

17

be denied. Plaintiffs are directed to file an amended complaint consistent with this Order

18

and in accordance with Rule 15.1 of the Local Rules of Civil Procedure. Accordingly,

19

IT IS ORDERED:

20

1. That the Motions to Dismiss filed by Mark Brnovich (Doc. 46), Patricia E.

21

McSorley (Doc. 40), and the Members of the Arizona Medical Board (Doc. 41) are

22

denied;

23
24

2. That Defendant Cara Christ’s Motion to Dismiss (Doc. 44) is granted and she
is dismissed without prejudice from this action;

25

3. That Plaintiffs’ Motion for Leave to Amend (Doc. 81) is granted;

26

4. That Plaintiffs shall have until April 4, 2016 to file an Amended Complaint

27
28

consistent with this Order and the local rules; and
5. That Defendants shall have fourteen (14) days from the date of the filing of
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2

the Amended Complaint to file an answer.
Dated this 23rd day of March, 2016.

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Honorable Steven P. Logan
United States District Judge

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