Arizona Supreme Court Keeps Abortion Initiative on the Ballot

In Arizona Right to Life v. Fontes, (AZ Sup. Ct., Aug. 20, 2024), the Arizona Supreme Court rejected challenges to the ballot description of the Arizona Abortion Access Act that will appear on the November ballot. This keeps the abortion rights initiative on the ballot. Politico reports on the decision.

Arizona Governor Vetoes Bill That Would Have Required Equal Insurance Coverage and Access for Gender Detransitioning

On June 18, Arizona Governor Katie Hobbs vetoed (full text of veto letter) vetoed Senate Bill 1151 (full text) that would have required health insurers that cover gender transition procedures to also provide coverage for gender detransition procedures. It would also have required physicians and hospitals that provide gender transition procedures to provide or pay for gender detransition procedures. It also would have required insurance companies to report data to the state (without identifying information on patients) on detransition claims. Governor Hobbs in her veto letter said that the bill is unnecessary and would create privacy risks for patients. Catholic News Agency reported on the Governor's veto, quoting many who disapproved of her action.

Arizona Legislature Repeals 160-Year-Old Abortion Ban

Yesterday the Arizona legislature gave final passage to HB2677 (full text) which repeals Arizona's 160-year-old near-total abortion ban that, according to the state Supreme Court, came back into effect when Roe v. Wade was overruled. (See prior posting.) However, the repeal does not go into effect until 90 days after the end of the legislative session. Governor Katie Hobbs has said she will sign the bill. When the repeal becomes effective, Arizona's 15-week abortion ban will be effective.  In November, Arizona voters will vote on a referendum to protect the right to pre-viability abortions. The Hill reports on developments.

Arizona Governor Vetoes Bill That Would Have Required Transgender Individuals to Use Alternate Single Occupancy Showers in Public Schools

On April 23, Arizona Governor Katie Hobbs vetoed Arizona Senate bill 1182. (Full text of veto letter.) The bill, titled the "Arizona Accommodations for All Children Act" (full text) would have required public schools to provide single occupancy showers to transgender individuals who are unwilling to use multi-occupancy showers that correspond to their biological sex as determined at birth. In order to obtain the accommodation of a single occupancy shower, the individual would have been required to make a written request and to furnish satisfactory evidence of the person's sex. If that accommodation is refused, the person would have a cause of action against the public school. Conversely, any person who encounters a person of the opposite sex in a multi-occupancy shower room also has a cause of action against the school if a school employee or administrator gave the person permission to use the shower. In either case, the plaintiff could recover for psychological, emotional and physical harm.

Arizona Supreme Court Says 160-Year-Old Abortion Ban Is Enforceable

In Planned Parenthood Arizona, Inc. v. Mayes, (AZ Sup. Ct., April 9, 2024), the Arizona Supreme Court held that A.R.S. §13-3603 that outlaws all abortions except when necessary to save the mother's life-- originally enacted in 1865-- again became operative when Roe v. Wade was overruled. In a 4-2 decision, the majority concluded that A.R.S. §36-2322, Arizona's 15-week abortion law enacted in 2022, did not prevent the effectiveness of the 1864 law. Senate Bill 1164 which enacted the 15-week law contained the following provision on "Construction" of the law:

This act does not: 1. Create or recognize a right to abortion or alter generally accepted medical standards.  The Legislature does not intend this act to make lawful an abortion that is currently unlawful. 2.  Repeal, by implication or otherwise, section 13-3603, Arizona Revised Statutes, or any other applicable state law regulating or restricting abortion.

Today's majority opinion said in part:

We conclude that § 36-2322 does not create a right to, or otherwise provide independent statutory authority for, an abortion that repeals or restricts § 13-3603, but rather is predicated entirely on the existence of a federal constitutional right to an abortion since disclaimed by Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 292 (2022).  Absent the federal constitutional abortion right, and because § 36-2322 does not independently authorize abortion, there is no provision in federal or state law prohibiting § 13-3603’s operation.  Accordingly, § 13-3603 is now enforceable.

The majority added two caveats:

First, § 13-3603 may be enforced prospectively only.  Second, we stay enforcement of § 13-3603 for fourteen calendar days from the filing date of this Opinion to permit the parties, on remand, to determine whether to pursue remaining issues raised in the trial court and, if so, to request further stay relief at the trial court’s discretion. 

Vice Chief Justice Timmer dissented, joined by Chief Justice Brutinel, saying in part:

  ... [R]elying on a statutory construction note tucked within a session law predating Dobbs, the majority interprets § 36-2322(B) as providing that if Roe was overruled, the state would turn back the clock to 1973 by enforcing the near-total abortion ban against physicians, even if they comply with § 36-2322(B) by performing elective abortions before the fifteen-week gestation point or performing abortions when necessary to prevent serious impairment to the pregnant woman’s health.  I strongly disagree.  As the adage goes, the legislature does not ordinarily “hide elephants in mouseholes.”... And the legislature neither did so nor could do so here with a session law note existing wholly apart from statutory text.  

Sections 13-3603 and 36-2322(B) can and should be interpreted harmoniously to permit their joint enforcement until the legislature or the people, through the initiative process, say otherwise.  This means physicians should be permitted to lawfully perform abortions before the fifteen-week gestation point or when necessary to preserve the pregnant woman’s health.

Arizona Republic reports on the decision.

Christian Food Ministry Sues to End City's Attempts to Close It Down

 Last week, a Yuma County, Arizona Baptist church filed suit in an Arizona federal district court challenging actions the city of San Luis has taken to close down the church's food distribution ministry which it has operated for 23 years. The complaint (full text) in Gethsemani Baptist Church v. City of San Luis, (D AZ, filed 3/13/2024), says that with the election of a new mayor in 2022, the city ended its prior support for the food ministry and used zoning rules to attempt to end its operations. The city contends that the growth of the church's Food Ministry has changed it sufficiently that it may no longer rely on its prior treatment as a legal non-conforming use. The church alleges that the city's actions violate RLUIPA, the Free Exercise Clause, and Arizona's Free Exercise of Religion Act. First Liberty issued a press release announcing the filling of the lawsuit.

School Board Member Sues to Vindicate Her Reading of Bible at Board Meetings

Suit was filed this week in an Arizona federal district court by Heather Rooks, a member of the Peoria, Arizona school board, seeking a declaratory judgment to vindicate her practice of quoting Scripture during the period of each Board meeting devoted to members making their own comments.  Advocacy organizations had complained about Rook's practice, and legal counsel to the Board furnished an opinion that reading Scripture during Board meetings violates the Establishment Clause. The complaint (full text) in Rooks v. Peoria Unified School District, (D AZ, filed 9/26/2023) seeks a judicial ruling that plaintiff's practice does not violate the Establishment Clause or the Arizona Constitution, that punishment for her practice violates her free speech and free exercise rights, and that she is entitled to absolute legislative immunity for her recitation of Scripture. Fox News reports on the lawsuit.

Islamic Marriage Contract Enforceable in Civil Court

In Alulddin v. Alfartousi, (AZ App., June 27, 2023), an Arizona state appeals court held that civil courts can enforce an Islamic marriage contract's dowry provision (mahr) as a valid premarital agreement without violating the 1st Amendment's free exercise clause. The court said in part:

By its plain terms, the Agreement required Husband to pay Wife a total dowry of $25,000 “when she demands it.” These clear, unambiguous contractual provisions are subject to interpretation under neutral principles of law.... Thus, the superior court did not need to assume the role of a religious court or consider ecclesiastical matters forbidden by the First Amendment to enforce the agreement as written.

... A premarital agreement is “an agreement between prospective spouses that is made in contemplation of marriage and that is effective on marriage.” A.R.S. § 25-201(1).... It “is enforceable without consideration.” ...

Husband contends that the parties did not enter into the Agreement in contemplation of marriage because under Islamic law the Agreement constituted their marriage. The record controverts this contention. The parties signed the Agreement five months before their legal marriage. Although Husband testified that it signified their cultural marriage, he also stated that they signed it on their “engagement.” Moreover, he testified that their actual marriage occurred after the execution of the Agreement....

Next, Husband asserts that he did not sign the Agreement voluntarily because it was a compulsory religious act....

Here, the superior court did not err in finding that Husband failed to meet his burden of proof. He did not present any evidence to suggest that his religion “mandated” or “compelled” him to sign the Agreement. In his prehearing statement, he described the Agreement as “customary”—not compulsory—in a Muslim marriage....

Christian University Sues Over Termination of Student Teaching Arraangements

Suit was filed yesterday in an Arizona federal district court by a Christian university alleging that a public school district violated free exercise, free speech and other federal constitutional provisions as well as Arizona law when it terminated the student teacher agreement between the university and the school district.  The complaint (full text) in Arizona Christian University v. Washington Elementary School District No. 6, (D AZ, riled 3/9/2023) alleges in part:

For the last eleven years, Arizona Christian and Washington Elementary School District, the largest elementary school district in Arizona, had a mutually beneficial partnership where students in Arizona Christian’s Elementary Education degree programs would student teach and shadow teachers in the School District....

Despite there being zero complaints about an Arizona Christian student teacher or alumnus, the School District decided to terminate its relationship with Arizona Christian and its students solely because of their religious status and beliefs on biblical marriage and sexuality.

ADF issued a press release announcing the filing of the lawsuit.

UPDATE: A settlement agreement (full text) was reached on May 3, 2023, under which the parties will enter a revised student teacher agreement. World News Group reports on the settlement.

Christian School Teacher Fired for Acceptance of LGBT Students Files Suit

Suit was filed this week in an Arizona federal district court by Adam McDorman, an English teacher who was fired by Valley Christian School for urging the school's principal, Josh LeSage, to show acceptance and understanding of a student who identifies as pansexual.  The complaint (full text) in McDorman v. Valley Christian Schools, (D AZ, filed 12/27/2022), alleges in part:

15. McDorman’s Christian faith and beliefs include acceptance and equality for all LGBT persons and do not tolerate discrimination or hostility against them....

19.  On November 1, 2021, during a staff meeting at which McDorman was present, LeSage said that all of VCS staff should have the same religious belief in the sinfulness of LGBT sexual orientation, and that anyone who did not agree was like a cancer that needed to be removed from the (VCS) organization....

The complaint alleges that McDorman's firing amounted to religious discrimination and retaliation for opposing discriminatory practices in violation of provisions of Title VII and Title IX. AZFamily News reports on the lawsuit.

Physicians Ask Arizona Court To Reconcile Competing Abortion Laws

In Arizona, a physician and the Arizona Medical Association have filed a declaratory judgment action in an Arizona trial court asking the court to clarify which of two competing laws on abortion is in effect in the state. The complaint (full text) in Isaacson v. State of Arizona, (AZ Super. Ct., filed 10/3/2022), explains:

3. Most recently, the Legislature passed, and Governor Ducey signed, a law permitting physicians to provide abortions through 15 weeks of pregnancy.... 

4. Since the Dobbs decision was issued on June 24, overturning Roe v. Wade, ... there has been significant confusion around the status of Arizona’s abortion laws, and specifically whether a near total criminal ban on abortion, A.R.S. § 13-3603 (the “Territorial Law”), that was enacted in 1901 but can be traced back to 1864, preempts dozens of existing abortion laws, including the 15-Week Law, and criminalizes otherwise legal, physician-provided abortion care. State officials with enforcement power have either refused to state which abortion laws take precedence or have taken inconsistent positions on the matter.

5. On July 13, 2022, the Arizona Attorney General filed a Rule 60(b) motion in the Pima County Superior Court seeking to lift an injunction of the Territorial Law that had been in place since 1973. On September 23, 2022, the Pima County Superior Court granted the Attorney General’s motion solely based on the decision in Dobbs overruling Roe v. Wade. The court declined to reconcile how the Territorial Law is to operate in harmony with Arizona’s more recent and much more robust statutory scheme governing physician-provided abortion care....

[Thanks to Courthouse News Service for the lead.]

Arizona Judge Reinstates Pre-Roe Abortion Ban

Arizona §13-3603, a statute that originally was passed in 1864 and subsequently reenacted, criminalizes abortion unless it is necessary to save the life of the mother. Persons who procure of perform abortions are subject to imprisonment for not less than two or more than five years. In 1973, in a suit brought by Planned Parenthood, Arizona courts held that the statute was unconstitutional because of the U.S. Supreme Court's ruling in Roe v. Wade.  Now that Roe has been overruled, Arizona's Attorney General and an intervenor in the case filed a Motion for Relief From the 1973 Judgment.  In Planned Parenthood Center of Tucson, Inc. v. Brnovich, (AZ Super., Sept. 22, 2022), an Arizona trial court judge granted the motion, saying in part:

The Court finds that because the legal basis for the judgment entered in 1973 has now been overruled, it must vacate the judgment in its entirety.

In March of this year, Arizona enacted a law banning abortions after 15 weeks, except in a medical emergency. BBC News reporting on this week's decision allowing §13-3603 to go into effect, says:

It is now unclear whether the 15-week ban or the near-total ban will take precedence.

Governor of Arizona Doug Ducey said it would be the 15-week ban, but his fellow Republican Attorney General Mark Brnovich said it should be the older ban.

Anti-Muslim Facebook Postings Are Subject To Pickering Balancing Test

In Hernandez v. City of Phoenix, (9th Cir., Aug. 5, 2022), the U.S. 9th Circuit Court of Appeals remanded to the district court a case in which the Phoenix police department had disciplined an employee for social media posts he made disparaging Muslims.  The district court had held that the posts did not address matters of public concern and so were not subject to the balancing test of Pickering v. Board of Education  that protects as free speech some statements by public employees which are objectionable to the public employer. The Court of Appeals disagreed, saying in part:

It is true that each of Hernandez’s posts expressed hostility toward, and sought to denigrate or mock, a major religious faith and its adherents. The Supreme Court has made clear, however, that “[t]he inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.”...

Having concluded that Hernandez’s Facebook posts constitute speech on matters of public concern at the first step of the Pickering balancing test, we would ordinarily proceed to the next step and assess whether the Phoenix Police Department has shown an adequate justification for punishing Hernandez’s otherwise protected speech. We cannot do so here, however, because the district court dismissed Hernandez’s First Amendment retaliation claim at the motion-to-dismiss stage.... Although it seems likely that Hernandez’s posts could impede the performance of his job duties and interfere with the Phoenix Police Department’s ability to effectively carry out its mission, no evidence of the actual or potential disruptive impact caused by Hernandez’s posts is properly before us at this stage of the proceedings....

In remanding the case, we do not mean to suggest that the Department will face a particularly onerous burden to justify disciplining Hernandez for his posts, given the comparatively low value of his speech.

Reuters reports on the decision.

Arizona Law On Rights Of Unborn Is Unconstitutionally Vague

In Isaacson v. Brnovich, (D AZ, July 11, 2022), an Arizona federal district court issued a preliminary injunction barring the application of Arizona's "Interpretation Policy" to abortion care that is otherwise permissible under Arizona law.  At issue is an Arizona statute that provides:

The laws of this state shall be interpreted and construed to acknowledge, on behalf of an unborn child at every stage of development, all rights, privileges and immunities available to other persons, citizens and residents of this state....

The court said in part:

The Interpretation Policy is intolerably vague because it is entirely unclear what it means to construe and interpret Arizona law to “acknowledge” the equal rights of the unborn.....

Because of the indeterminate meaning and applicability of the Interpretation Policy, abortion providers do not have fair notice of whether, if they conform their conduct to these laws, they nonetheless may face criminal, civil, or professional liability under other statutes based solely on what licensing, law enforcement, or judicial officials think it means to “acknowledge” the equal rights of the unborn.

Courthouse News Service reports on the decision.

New Arizona Law Protects Right To Clergy Visits In Health Care Institutions

Arizona Governor Doug Ducey yesterday signed HB 2449 (full text) which protects the right of residents of assisted living, nursing and hospice facilities to receive visits by clergy even during states of emergency, as well as when a resident's death is imminent. ADF issued a press release on the bill.

Arizona Passes New Protections For Religious Organizations

The Arizona legislature this week gave final passage to HB 2507 (full text) which is primarily aimed at preventing state and local governments from closing down religious organizations in future states of emergency.  However it also includes this broader provision:

State government or any private person who sues under or attempts to enforce a law, rule or regulation that is adopted by the state or a political subdivision of this state may not take any discriminatory action against a religious organization on the basis that the organization ... engages in the exercise of religion as protected under the First Amendment....

AZ Mirror reports on the bill.

Arizona Legislature Passes Bill To Protect Practices Of Faith-Based Adoption Agencies

On Monday, the Arizona legislature sent to the governor for his signature Senate Bill 1399 (full text) which protects adoption and foster care agencies from adverse action when they provide or decline services on the basis of their religious beliefs. It also provides that the state may consider whether a potential foster or adoptive family shares the same religious beliefs or practices as the child being placed. AZ Mirror has extensive reporting on the views of proponents and opponents of the legislation.

Arizona Governor Signs Bills On Transgender Issues And Abortion

As described in a press release from the Governor's office, yesterday Arizona Governor Doug Ducey signed the following bills into law:

Senate Bill 1138, sponsored by Sen. Warren Petersen, delays irreversible gender reassignment surgery until the age of 18. The bill does not prohibit puberty blocking hormones or any other hormone therapy and will not require any child to go off any prescriptions they may be taking....

The Governor also signed S.B. 1165, sponsored by Sen. Nancy Barto. This legislation requires all Arizona public schools, and any private schools that compete against them, to expressly designate their interscholastic athletics teams based on the biological sex of the participating students....

Continuing Arizona’s commitment to protecting preborn children, the Governor also signed S.B. 1164, sponsored by Sen. Nancy Barto. The bill prohibits a physician from performing an abortion past 15 weeks gestation, except in a medical emergency....

Women who received an abortion after 15 weeks may not be prosecuted.

NBC News reports on these developments.

9th Circuit: Arizona's Free Exercise Statute Did Not Repeal Limit On Prisoner Suits

In Crespin v. State of Arizona, (9th Cir., March 3, 2022), the U.S. 9th Circuit Court of Appeals held that Arizona's Free Exercise of Religion Act did not repeal by implication a provision in Arizona's statutes that allows prisoners to sue for injuries suffered while incarcerated only if the inmate alleges serious physical injury.

Ashram Loses RLUIPA "Equal Terms" Challenge

In Divine Grace Yoga Ashram Inc. v. County of Yavapai, (D AZ, Jan. 31, 2022), an Arizona federal district court rejected a RLUIPA claim by an Ashram that objects to the county's insistence it obtain a Conditional Use Permit to continue to operate its retreats and daily meditations on a 12.6 acre ranch property next to the Coconino National Forest.  Plaintiff contends that the Permit requirement violates the "equal terms" provision of RLUIPA because public and charter schools in the same area zoned Residential Single Family are exempt from the requirement.  The court concluded however that public and charter schools are not similarly situated to plaintiff.  State law prohibits localities from imposing zoning restrictions on such schools. That makes them different.