Litigation

There are several cases being litigated right now, both in Arizona and around the country, that relate to reproductive rights and which could affect Arizonans’ access to abortion. Get an overview of some of the cases below.

Planned Parenthood Arizona, Inc. v. Mayes, et al. (Arizona Supreme Court)

Issue

This is a case about whether a law from the 1860s, which bans nearly all abortions, should apply instead of Arizona’s more recent 15-week abortion law.

Background

One of the laws at issue was adopted in the 1860’s, before Arizona was a state. That law (now codified in A.R.S. § 13-3603) would prohibit anyone from performing an abortion except for when an abortion is necessary to save the patient’s life.

The other laws at issue are more recent and include the 15-week law that was just enacted in 2022. These other more recent laws explain in detail how doctors can legally perform abortions up to 15 weeks. In addition, under those more recent laws, abortions are legal at any point, including after 15 weeks, if there is a statutorily defined “medical emergency.” A medical emergency is when immediate abortion care is necessary to avoid the patient’s death, or when delaying abortion care will create a serious risk of substantial and irreversible impairment of a major bodily function.

In December 2022, the Arizona Court of Appeals held that the older, more general law (the one from the 1860s) should be harmonized with the many more modern and more specific statutes that permit abortion under certain circumstances to avoid a conflict between the statutes. In short, the court said that a licensed doctor who performs an abortion that is legal under the newer laws cannot be criminally prosecuted under the older law.

On April 9, 2024, the Arizona Supreme Court reversed the Court of Appeals and held that the 1864 near-total ban on abortion was enforceable. The Court subsequently denied the Attorney General’s motion to reconsider portions of that decision. The Attorney General and Planned Parenthood have moved the Court to stay the issuance of the mandate (the final order in the case); the Court has not yet ruled on those motions.

This page will be updated as information changes.

Filings and Court Decisions

Paul Isaacson v. Mayes, et al. (Arizona federal court)

Issue

This is a case about several Arizona statutes that ban abortions because of a “genetic abnormality” in the fetus (the so-called “Reason Ban”), and a statute that says Arizona’s laws must be “interpreted and construed to acknowledge” the rights of “an unborn” fetus (the so-called “Interpretation Policy”).

The question is whether these statutes are so vague that they violate the United States Constitution.

Background

In 2022, a federal trial court in Arizona concluded that the law’s challengers were likely to succeed in showing that the Interpretation Policy is unconstitutionally vague, and the court entered a preliminary injunction as to that statute. In other words, that statute cannot be enforced while the litigation is ongoing.

But in 2023, the trial court found that plaintiffs’ challenge to the Reason Ban was not ripe, meaning the court found that plaintiffs sued too soon, before there was any real dispute a court could decide, so plaintiffs’ case cannot go forward.

The President of the Arizona Senate and the Speaker of the House joined in the case to defend the laws after Attorney General Mayes declined to defend the constitutionality of the laws.

Plaintiffs appealed the ripeness ruling about the Reason Ban to the Ninth Circuit Court of Appeals (the federal appellate court), and the Ninth Circuit reversed. The case is now back in the district court and moving forward.

Washington, et al. v. U.S. Food & Drug Administration (Washington federal court)

Issue

This is a case about whether the FDA has imposed unnecessary restrictions on the use of mifepristone, a medication abortion drug that has been available and on the market for over 20 years, and which has a long history of safety and effectiveness.

Background

Arizona is a plaintiff in this multistate litigation. Plaintiffs have challenged the FDA’s Risk Evaluation and Mitigation Strategies (REMS) for mifepristone as unnecessarily restrictive. REMS essentially are the FDA’s instructions about how a medication can be used. The complaint alleges that the FDA failed to consider certain evidence about mifepristone’s safety and effectiveness in maintaining the restrictions on mifepristone.

The federal district court in Washington has concluded that there are “serious issues going to the merits” of plaintiffs’ claims about how burdensome are the REMS. The district court entered a preliminary injunction, ordering the FDA not to change the status quo regarding the availability of mifepristone in the plaintiff jurisdictions while the litigation is pending.

Current Status

Several other states tried to intervene in this case to defend the REMS; the district court denied that motion, and those states have appealed to the Ninth Circuit.

The main part of the case is still ongoing in the district court. The federal government did not appeal the district court’s preliminary injunction.

Alliance for Hippocratic Medicine v. U.S. FDA (Texas federal court)

Issue

This case is a challenge to the FDA’s original approval and subsequent regulations of brand-name Mifeprex and the generic mifepristone. In short, Plaintiffs seek to completely undo the FDA’s approval of mifepristone to take it off the market.

Background

Plaintiffs challenged the FDA’s 2000 approval of Mifeprex; the 2016 amendments to the conditions for using Mifeprex; the 2019 approval of generic mifepristone; and the 2021 loosening of certain restrictions on how mifepristone can be used and dispensed.

Initially, the federal trial court in Texas entered a preliminary injunction that temporarily undid the FDA’s approval of mifepristone. That order was subsequently stayed (put on hold) by the U.S. Supreme Court and then was recently narrowed by the Fifth Circuit Court of Appeals.

Arizona joined an amicus brief filed by New York and several other states in defense of the FDA’s approval of mifepristone in the federal trial court. Arizona later joined a similar brief in the Fifth Circuit Court of Appeals (the federal appellate court), and Arizona has joined a similar brief in support of the petitioners asking the U.S. Supreme Court to hear the case.

The U.S. Supreme Court decided to take the case and review the issues raised by the federal government and Danco Laboratories, which is the company that makes Mifeprex (mifepristone). The issues in the case include whether the challengers have standing to bring their case, and whether the FDA’s regulatory actions in 2016 and 2021 were lawful.

The plaintiffs in the case (including the Alliance for Hippocratic Medicine) had also asked the Supreme Court to decide whether the FDA’s initial approval of mifepristone in 2000 was lawful. But the Supreme Court denied that petition, meaning that is not an issue it has decided to consider in this case. The Court heard oral argument on March 26, 2024. A decision should issue this summer.

Currently, this litigation does not affect Arizona. But it may have implications for the availability of mifepristone in the future, depending on how the case unfolds.

Disclaimers

This website is not intended to be legal advice and creates no attorney-client relationship between readers and the Attorney General’s Office. This website is not an exhaustive explanation of all abortion-related information and does not provide medical advice. Patients should always consult with licensed medical providers to answer their questions. The law is in flux and may change; this website will be updated as reasonably appropriate to reflect relevant developments in the law.