Planned Parenthood Ariz. Inc. v. Am. Ass'n of Pro–life Obstetricians & Gynecologists

227 Ariz. 262

257 P.3d 181

614 Ariz. Adv. Rep. 7

PLANNED PARENTHOOD ARIZONA, INC., an Arizona non-profit corporation, Plaintiff/Appellee,

v.AMERICAN ASSOCIATION OF PRO–LIFE OBSTETRICIANS & GYNECOLOGISTS; Catholic Medical Association; Christian Medical and Dental Associations; Christian Pharmacists Fellowship International; Ave Maria Pharmacy, PLLC; Arizona Catholic Conference; Crisis Pregnancy Centers of Greater Phoenix; Senator Linda Gray; Representative Nancy Barto, Applicant Intervenors–Defendants/Appellants.Planned Parenthood Arizona, Inc., an Arizona non-profit corporation, Plaintiff/Appellee,

v.Thomas C. Horne, in his official capacity as Attorney General; Arizona Medical Board; Lisa Wynn, in her official capacity as Executive Director of the Arizona Medical Board; Arizona Board of Osteopathic Examiners in Medicine and Surgery; Elaine Letarte, in her official capacity as Executive Director of the Arizona Board of Osteopathic Examiners in Medicine and Surgery; and Ken Bennett, Arizona Secretary of State, in his official capacity, Defendants/Appellants,andKirk D. Adams, as Speaker, Arizona House of Representatives, Intervenor–Defendant/Appellant,andAmerican Association of Pro–Life Obstetricians & Gynecologists; Catholic Medical Association; Christian Medical and Dental Associations; Christian Pharmacists Fellowship International; Ave Maria Pharmacy, PLLC; Arizona Catholic Conference; Crisis Pregnancy Centers of Greater Phoenix; Senator Linda Gray; Representative Nancy Barto, Intervenors–Defendants/Appellants.

Nos. 1 CA–CV 09–0748

1 CA–CV 10–0274.

Court of Appeals of Arizona, Division 1, Department B.

Aug. 11, 2011.

Planned Parenthood Federation of America by Jennifer Sandman, pro hac vice, Eve C. Gartner, pro hac vice, New York, N.Y., Greenberg Traurig, LLP by Lawrence J. Rosenfeld, Daniel B. Pasternak, Phoenix, Co-counsel for Plaintiff/Appellee.Thomas C. Horne, Arizona Attorney General by David R. Cole, Solicitor General, Paula S. Bickett, Chief Counsel, Civil Appeals, Carrie J. Brennan, Assistant Attorney General, Timothy A. Nelson, Chief Deputy Attorney General, Phoenix, Attorneys for State Defendants/Appellants.Office of the Speaker, Arizona House of Representatives by Peter A. Gentala, Phoenix, Cantelme & Brown, P.L.C. by David J. Cantelme, Phoenix, Co-counsel for Intervenor–Defendant/Appellant Kirk D. Adams.Alliance Defense Fund by Steven H. Aden, pro hac vice, Matthew S. Bowman, pro hac vice, Washington, D.C., Center for Arizona Policy by Deborah M. Sheasby, Cathi W. Herrod, Phoenix, Bioethics Defense Fund by Nikolas T. Nikas, Scottsdale, Co-counsel for Intervenor–Defendants/Appellants American Association of Pro–Life Obstetricians and Gynecologists; Catholic Medical Association; Christian Medical and Dental Associations; Christian Pharmacists Fellowship International; Ave Maria Pharmacy, PLLC; Arizona Catholic Conference; Crisis Pregnancy Centers of Greater Phoenix; Senator Linda Gray; Representative Nancy Barto.

OPINION

SWANN, Judge.

¶ 1 This case requires us to decide whether four statutory provisions that regulate the performance of abortions violate the equal protection or privacy clauses of the Arizona Constitution. The trial court granted Planned Parenthood of Arizona (“PPAZ”) a preliminary injunction barring the enforcement of portions of A.R.S. §§ 36–2152 through –2155. We hold that the statutes at issue would withstand federal constitutional scrutiny, and that the Arizona Constitution-to the extent it protects abortion rights at all-offers no greater protection than the federal constitution with respect to the regulations at issue in this case. Because we hold that the statutes in question are constitutional, we reverse the decision of the trial court, vacate the injunction and remand.

¶ 2 In addition, the speaker of the Arizona House of Representatives (“Speaker”) and a group of other persons and entities (“Proposed Intervenors”) ¹ appeal the denial of their Motions to Intervene. We reverse in part and affirm in part the trial court's denial of leave to intervene.

FACTS AND PROCEDURAL HISTORY ²

¶ 3 On July 13, 2009, the Governor signed House Bill 2564 and Senate Bill 1175, which amended A.R.S. §§ 36–2151 through –2155. 2009 Ariz. Sess. Laws ch. 172, §§ 2–5; ch. 178, § 1 (1st Reg. Sess.). The laws were scheduled to take effect on September 30, 2009, 90 days after the legislature adjourned sine die on July 1, 2009.

¶ 4 PPAZ provides family planning services in Arizona, including abortions. On September 14, 2009, PPAZ filed a seven-count complaint against various state officials (collectively, the “state”) for declaratory and injunctive relief under the Arizona Constitution. PPAZ also applied for a temporary restraining order or preliminary injunction enjoining enforcement of some of the statutory provisions challenged in its complaint. In its application, PPAZ argued only that the statutes at issue violated the equal protection and privacy clauses of the Arizona Constitution.³ PPAZ contended that the challenged provisions were subject to strict scrutiny, but that they would fail under “any level of review” because they did not “further any legitimate state purpose.”

¶ 5 On September 23, 2009, Proposed Intervenors moved to intervene under Arizona Rules of Civil Procedure (“Rule”) 24(a)(2) and (b).⁴ On September 29, 2009, the trial court denied Proposed Intervenors' motion to intervene on the grounds that they “have shown no injury to a private right or to themselves personally and have not shown that their interests will be inadequately represented by the Attorney General.” Proposed Intervenors timely appeal that ruling.

¶ 6 On September 30, 2009, after hearing oral argument, the trial court issued an injunction enjoining enforcement of the challenged provisions. The order, as amended, enjoined the enforcement of:

A. [A.R.S. §§ 36–2153(A)(1) and (A)(2) ] to the extent that they require certain information to be given to a woman “orally and in person,” as opposed to by telephone or other means;

B. [A.R.S. § 36–2153(A)(1) ] to the extent that it requires certain information to be given to a woman by “the physician who is to perform the abortion or the referring physician,” as opposed to by a qualified staff member;

C. [A.R.S. § 36–2153(A)(1) ] to the extent that it requires certain information to be given to a woman by “the physician who is to perform the abortion or the referring physician,” even when the abortion is a “nonsurgical abortion” and it is performed by a registered nurse practitioner or physician assistant, as permitted by law;

D. [A.R.S. § 36–2153(C) (nonphysicians may not perform surgical abortions) ];

E. S.B. 1175 [also codified as A.R.S. § 36–2153(C) ];

F. [A.R.S. § 36–2154 (refusal provisions) ] to the extent it amends existing law; and

G. [A.R.S. § 36–2152(A) ] to the extent that it requires a “notarized statement” of parental consent, unless and until the Arizona Secretary of State gives adequate and ongoing notice to all Notary Publics in the state of their confidentiality obligations with respect to notarial acts involving parental consent to abortion, and establishes penalties for violation.

¶ 7 On November 5, 2009, the Speaker filed a motion to intervene as of right pursuant to Rule 24(a) and A.R.S. § 12–1841(A). After briefing and oral arguments, the court denied the Speaker's motion, interpreting A.R.S. § 12–1841(A) as granting the Speaker only the right to participate as an amicus curiae. The Speaker timely appeals.

¶ 8 On the state's motion, the trial court issued findings of fact and conclusions of law—essentially adopting PPAZ's proposals—that (1) strict scrutiny is the appropriate standard for reviewing legislation that “affect[s]” a fundamental right; (2) Simat Corp. v. Ariz. Health Care Cost Containment Sys., 203 Ariz. 454, 56 P.3d 28 (2002), held that statutes affecting the fundamental right to choose abortion are subject to strict scrutiny; and (3) the privacy clause in Article 2, Section 8, of the Arizona Constitution provides “greater privacy rights” than the U.S. Constitution, including “the right of an individual to ‘chart his or her own plan of medical treatment.’ ” The state timely appeals. We have jurisdiction pursuant to A.R.S. § 12–2101(F)(2).

DISCUSSION

¶ 9 We review the grant of a preliminary injunction for abuse of discretion, which can take the form of misapplication of the law to the facts. We review a statute's constitutionality de novo, beginning with the presumption that it is constitutional. The party challenging the statute bears the burden of establishing that it is unconstitutional—“any doubts are resolved to the contrary.” Ariz. Dep't of Pub. Safety v. Super. Ct., 190 Ariz. 490, 494, 949 P.2d 983, 987 (App.1997). We must accord the statute “the deference that we customarily must pay to the duly enacted and carefully considered decision of a coequal and representative branch of our Government.” Ariz. Minority Coal. for Fair Redistricting v. Ariz. Ind. Redistricting Comm'n, 220 Ariz. 587, 595, ¶ 20, 208 P.3d 676, 684 (2009) (quoting Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 319, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985)) (internal quotation marks omitted). Therefore, unless a statute offends “the essence of [a] fundamental right” or involves a suspect classification, we presume that the legislature acts constitutionally, and will uphold a statute unless it is clearly unconstitutional. Id. at 595 n. 7, ¶¶ 20–21, 208 P.3d at 684 n. 7.

I. THE PRIVACY CLAUSE AND ABORTION RIGHTS

¶ 10 Because the preliminary injunction before us addressed only PPAZ's claims under the equal protection and privacy clauses of the Arizona Constitution, we confine our analysis to the legal merits of the injunction on those theories.

¶ 11 The trial court concluded that “the fundamental right that gives rise to strict scrutiny in Simat is the right to choose abortion in general.” From this proposition, PPAZ reasons that any law...