Arizona Nonpayment Abortion Law

The Arizona nonpayment abortion law, officially known as Arizona House Bill 2564 ("the Act"), prohibits abortion providers from obtaining prepayment from mothers before the mandatory 24-hour waiting period elapses. Specifically, this Act:

the Act prohibits an abortion unless the patient has received certain statutorily-prescribed information, has then waited 24 hours before receiving an abortion, and has consented to the abortion in writing.

A lawsuit challenged these provisions and a prohibition in the Act that prevented abortion providers from obtaining prepayment for an abortion, which has the obvious effective of negating the purpose of the 24-hour waiting period:

a person shall not "require or obtain payment for a service provided to a patient who has inquired about an abortion or scheduled an abortion until the expiration of the twenty-four hour reflection period required by subsection A [of section 36-2153]." A.R.S. § 36-2153(D). A physician who knowingly violates this provision "commits an act of unprofessional conduct and is subject to license suspension or revocation[.]" A.R.S. § 36-2153(F).

Litigation[edit]

On September 14, 2009, around the time when the Act was to become effective, the Tucson Women's Center, Family Planning Associates, and several physicians filed a Complaint and a Motion for a Preliminary Injunction and Expedited Briefing Schedule, or in the alternative, Motion for Temporary Restraining Order. In support they also filed a Memorandum of Law along with a Declaration and motion for leave to file an overlength brief. The lawsuit was assigned to the Honorable David G. Campbell and given a case number of CV 09-1909-PHX-DGC. The defendant was the Arizona Medical Board and several of its officers. Plaintiffs paid the filing fees.

On September 22, a motion to intervene was filed by the Christian Medical and Dental Associations, American Association of Pro-Life Obstetricians and Gynecologists, Catholic Medical Association, Crisis Pregnancy Centers of Greater Phoenix, Inc., Arizona Catholic Conference, Ave Maria Pharmacy, PLLC, Christian Pharmacists Fellowship International, Linda Gray, Nancy Barto, with a declarations in support.

Judge Campbell held a hearing on September 29, with seven days notice, to consider the motion for a preliminary/permanent injunction. The Court denied the motion for a preliminary injunction and temporary restraining order. A response to the motion had been filed by defendants and intervenor-defendants on September 24. Plaintiffs had filed a reply on September 25.

On September 30, the Court certified the following question for decision by the Arizona Supreme Court pursuant to A.R.S. § 12-1861 and Rule 27 of the Rules of the Arizona Supreme Court: Whether the payment provision of A.R.S. § 36-2153(D) applies only when the informed consent and 24-hour waiting period of A.R.S. § 36-2153(A) is triggered by the actual providing or inducing of an abortion, or whether it applies outside the abortion context whenever an inquiry about abortion is made to a health care provider.

On October 9, plaintiffs filed an Amended Complaint and a response in opposition to the motion to intervene.

On October 16, the proposed intervenor-defendants filed a reply to the response in opposition to the motion to intervene.

Defendants answered the Amended Complaint on October 29.

On November 24, the Court allowed these parties to intervene: Arizona Catholic Conference and the Crisis Pregnancy Centers of Greater Phoenix, Inc.

On November 30, plaintiffs filed a notice of appeal to the Ninth Circuit on the denial of their motions for a preliminary injunction and TRO. (Case No. 09-17673)

Four days later, on December 3, 2009, plaintiffs then moved for a preliminary injunction by the district court pending the appeal

On December 11, 2009, the defendant-intervenors Arizona Catholic Conference and Crisis Pregnancy Centers of Greater Phoenix, Inc. answered the Amended Complaint, using the Alliance Defense Fund as counsel.

On January 15, 2010, the Court denied plaintiffs' motion for a preliminary injunction pending appeal.

Having struck out on in their strategy but wanting to preserve a right to try again at another time and possibly in another venue, plaintiffs obtained the written consent of defendants and intervenor-defendants to dismiss this case "without prejudice." Plaintiffs filed this voluntary stipulation of dismissal on March 5, 2010. Plaintiffs had likewise withdrawn their appeal upon the written consent of all parties, after briefs had been filed with the Ninth Circuit. This case thereby closed.