Judge Blocks 'Informed Consent,' Some Other Provisions Of Ariz. Abortion Law, Allows Waiting Period

Main Category: Abortion
Also Included In: Litigation / Medical Malpractice
Article Date: 01 Oct 2009 - 3:00 PDT

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An Arizona judge issued a preliminary injunction late Tuesday blocking the implementation of some provisions of a new state abortion law requiring waiting periods and specific disclosures scheduled to take effect at 12:01 a.m. Wednesday, the AP/Nevada Appeal reports (Davenport, AP/Nevada Appeal, 9/30). Maricopa County Superior Court Judge Donald Daughton said that Planned Parenthood Arizona's challenge to the law established "a strong likelihood of prevailing on the merits" of the case if it goes to trial and that women face "the possibility of irreparable injury" if he did not grant some of the group's requests.

Daughton allowed the law's 24-hour waiting period to take effect but granted PPAZ's request to block a requirement that women receive in-person disclosures from a physician before abortion procedures (Fischer, Arizona Daily Sun, 9/29). Daughton said that the so-called "informed consent" consultation is still required 24 hours prior to the procedure but that qualified staff can provide the disclosures over the phone.

Details of Blocked Provisions

The injunction also blocks provisions requiring that only physicians perform abortions and that minors obtain notarized statements of parental consent (Arizona Republic, 9/30). Daughton also voided a provision extending an existing statute on physicians' ability to refuse to participate in abortion procedures. The new law would have changed the statute to cover all health professionals and say that they need not "facilitate" an abortion. Under the requirement, providers with moral or religious objections would not be required to tell women they have an option for emergency contraception, and pharmacists could refuse to provide EC (Arizona Daily Sun, 9/29).

Some Provisions Allowed

In addition to the 24-hour waiting period, Daughton approved the law's advance disclosures before abortion procedures and criteria for judges to consider when deciding whether to exempt minors from parental consent requirements (AP/Nevada Appeal, 9/30). However, he said that the state cannot allow the notarization of parental consent forms until it ensures that notaries are adequately informed of their obligation to keep the information confidential (Arizona Daily Sun, 9/29). Daughton also allowed restrictions to take effect on when providers can collect payments from women seeking abortions.

After Daughton's ruling, PPAZ President Bryan Howard said, "The government has erected barriers that deny citizens the ability to make their own health care decisions. We are grateful the court has put this law on hold." Cathi Herrod, president of the Center for Arizona Policy -- a leading supporter of the bill -- said, "We believe that the judge gave short attention to the needs of Arizona women ... but this is round one."

District Judge Rejects CRR Request for Injunction

Separately Tuesday, in a lawsuit brought by the Center for Reproductive Rights, U.S. District Court Judge David Campbell denied the group's request to issue a preliminary injunction blocking the 24-hour waiting period requirement. Campbell's decision was made under the standard established by Planned Parenthood of Southeastern Pennsylvania v. Casey, the U.S. Supreme Court's 1992 decision that said states can restrict abortion access if they do not create an "undue burden" on a "large fraction" of women. Campbell said CRR failed to prove that a large fraction of women would face significant obstacles to abortion under the new law. However, Daughton's ruling meant that most provisions of the law did not take effect, according to the Arizona Republic (Newton, Arizona Republic, 9/30). The federal case also sought to block a provision preventing providers from receiving payment for any medical services from a woman on the same day that she has an abortion consultation (Women's Health Policy Report, 9/23).

Campbell said that he would ask the Arizona Supreme Court for an interpretation of the payment restriction under state law (AP/Nevada Appeal, 9/30). Suzanne Novak, who represents CRR in the case, said, "We are disappointed that the federal court did not recognize the harms that this law will cause women in Arizona," adding that the group is considering other legal options (Arizona Republic, 9/30).

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