govinfo:USCOURTS-azd-2_21-cv-01417-5

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WO 
 
 
 
 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF ARIZONA 
 
 
Paul A Isaacson, et al., 
 
Plaintiffs, 
 
v. 
 
Mark Brnovich, et al., 
 
Defendants. 
No. CV-21-01417-PHX-DLR 
 
ORDER 
 
 
 
 
At issue is A.R.S. § 1 -219—known in this case as the “Interpretation Policy” —
which provides: 
A. 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, subject only 
to the Constitution of the United States and decisional 
interpretations thereof by the United States Supreme Court. 
B. This section does not create a cause of action against: 
1. A person who performs in vitro fertilization procedures as 
authorized under the laws of this state. 
2. A woman for indirectly harming her unborn child by failing 
to properly care for herself or by failing to follow any particular 
program of prenatal care. 
C. For the purposes of this section, “unborn child” has the same 
meaning prescribed in § 36-2151. 
Section 36-2151, in turn, defines “unborn child” as “ the offspring of human beings from 

 
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conception until birth,” and “conception” as “ the fusion of a human spermatozoon with a 
human ovum.”1 
According to Defendants 2, whether or how the Interpretation Policy might be 
applied “is anyone’s guess.” (Doc. 113 at 8.) 3 Because of this uncertainty, Plaintiffs4 ask 
to enjoin enforcement of the Interpretation Policy as applied to otherwise lawful abortion 
care while this lawsuit is pending. (Doc. 107.) The Court has considered the parties’ briefs 
(Docs. 107, 113, 116) and presentations at the July 8, 2022 oral argument, and for reasons 
explained below grants Plaintiffs’ motion. 
BACKGROUND 
Arizona enacted the Interpretation Policy in April 2021, along with other provisions 
restricting abortions in cases of fetal genetic abnormalities. S.B. 1457, 55th Leg., 1st Reg. 
Sess. (Ariz. 2021). In August 2021, Plaintiffs filed this case and moved for an order 
preliminarily enjoining enforcement of these new laws. (Docs. 1, 10.) Plaintiffs argued 
the fetal genetic abnormality restrictions were unconstitutionally vague, unduly burdened 
the then-existing rights of women to terminate pregnancies before fetal viability, and 
abridged the freedom of speech between doctor and patient. They further argued the 
Interpretation Policy was unconstitutionally vague in all its applications. 
 On September 28, 2021, the Court issued an order granting in part and denying in 
part Plaintiffs’ motion for a preliminary injunction. (Doc. 52.) The Court enjoined the 
 
1 “[S]tandard medical texts equate ‘conception’ with implantation in the uterus, 
occurring about six days after fertilization.” Webster v. Reproductive Health Servs., 492 
U.S. 490, 563 (1989) (Stevens, J., concurring in part and dissenting in part). Arizo na’s 
definition of conception is silent on implantation and therefore includes fertilized eggs that 
have not implanted (and might never implant) in the uterus. An “unborn child,” it seems, 
can exist as a legal entity in Arizona even before a woman is considered pregnant from a 
medical standpoint. 
2 Defendants are Arizona Attorney General Mark Brnovich; the County Attorneys 
for each of Arizona’s fifteen counties; the Arizona Medical Board and its executive 
director; and the Arizona Department of Hea lth Services and its director. (Doc. 1 ¶¶ 20 –
23, 25–26; Doc. 70.) 
3 Record citations refer to the docket and page numbers in the Court’s Case 
Management/Electronic Case Files system. 
4 Plaintiffs are Drs. Paul Isaacson and Eric Reuss, obstetrician -gynecologists who 
provide abortion care in Arizona; the National Council of Jewish Women (Arizona 
Section), Inc., and the Arizona National Organization of Women, which are non -profit 
organizations that, among other things, support and advocate for reproductive rights and 
care; and the Arizona Medical Association. (Doc. 1 ¶¶ 13–16, 18.) 

 
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fetal genetic abnormality restrictions, finding those provisions were unconstitutionally 
vague and unduly burdened the then -existing rights of women to terminate pregnancies 
before fetal viability. The Court declined to enjoin the Interpretation Policy, finding 
Plaintiffs’ challenge was premature under the reasoning in Webster v. Reproductive Health 
Services, 492 U.S. 490 (1989). 
 Defendants appealed the portion of the Court’s order preliminarily enjoining the 
fetal genetic abnormality restrictions (Doc. 56) and Plaintiffs cross -appealed the portion 
declining to enjoin the Interpretation Policy (Doc. 65). Defendants asked th is Court and 
the Ninth Circuit to stay the preliminary injunction pending appeal. (Doc. 57; Doc. 14 in 
Isaacson v. Brnovich , No. 21-16645.) Both requests were denied. (Doc. 66; Doc. 35 in 
Isaacson v. Brnovich , No. 21 -16645.) De fendants then sought the same relief from the 
Supreme Court.5 
On June 24, 2022, the Supreme Court issued an opinion in Dobbs v. Jackson 
Women’s Health Organization , No. 19 -1391, 2022 WL 2276808 (2022), overturning 
nearly fifty years of precedent and ruling the Constitution does not afford women the right 
to terminate pregnancies. On June 25, 2022, Plaintiffs filed with this Court a motion under 
Federal Rule of Civil Procedure 62(d), asking to temporarily enjoin the Interpretation 
Policy pending resolution of their cross-appeal. (Doc. 107.) Then, on June 30, 2022, the 
Supreme Court issued an order on Defendants’ partial stay application, vacating this 
Court’s September 28, 2021 preliminary injunction and remanding to the Ninth Circuit 
with instructions to remand to this Court for further proceedings consistent with Dobbs. 
(Doc. 115.) The Ninth Circuit did so the same day. (Doc. 114.) Because these 
developments rendered a motion under Rule 62(d) procedurally inappropriate, the Court 
notified the parties it would treat Plaintiffs’ motion as a renewed motion for a preliminary 
injunction under Federal Rule of Civil Procedure 65. (Doc. 112.) 
 
5 Defendants’ stay application before the Supreme Court is available at 
https://www.supremecourt.gov/DocketPDF/21/21-
1609/204777/20211210193909281_Isaacson%20v%20Brnovich%20SCOTUS%20Appli
cation%20for%20Stay%20FINAL.pdf. 

 
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Plaintiffs’ renewed motion differs from their first in three ways: (1) it addresses only 
the Interpretation Policy (the fetal genetic abnormality restrictions are not at issue ); (2) 
instead of asking the Court to enjoin the Interpretation Policy in all its applications (known 
in law as a “facial” challenge), Plaintiffs ask only to enjoin Defendants fro m using the 
Interpretation Policy to punish their provision of otherwise legal abortion care (an “as-
applied” challenge); and (3) the motion comes after the Supreme Court’s decision in 
Dobbs. Why does this matter? Because the Interpretation Policy is limited by decisions 
of the Supreme Court, and during the September 22, 2021 oral argument on Plaintiffs’ first 
preliminary injunction motion, Defendants represented that under the law as it then existed, 
the Interpretation Policy could not be used to prohibit abortion care protected by the 
Constitution. (Doc. 61 at 84–85.) Dobbs unsettles these assurances and increases the risk 
that the Interpretation Policy could be applied in a manner detri mental to Plaintiffs’ 
otherwise lawful conduct. 
LEGAL STANDARD 
The purpose of a preliminary injunction is to preserve the status quo in order to 
avoid harm while litigation is pending. See Univ. of Tex as v. Camenisch, 451 U.S. 390, 
395 (1981). To obtain a preliminary injunction, a plaintiff must show (1) a likelihood of 
success on the merits, (2) a likelihood that irreparable harm will occur in the absence of 
preliminary relief, (3) the balance of equities favors a preliminary injunction, and (4) the 
requested injunction is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 
U.S. 7, 20 (2008). These elements are balanced on a sliding scale, with a stronger showing 
of one element offsetting a weaker showing of another, although all factors still must be 
satisfied. See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131, 1134–35 (9th Cir. 
2011). 
ANALYSIS 
I. Likelihood of Success on the Merits 
Plaintiffs argue the Interpretation Policy is unconstitutionally vague. The Court first 
will explain the standards for vagueness claims. It then will dispose of two antecedent 

 
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issues: (1) whether this challenge is premature under Webster and (2) whether the 
Interpretation Policy is immune from a vagueness challenge because it is not a substantive 
law. Finally, because the Court answers no to these antecedent questions, it will discuss 
why the Interpretation Policy is unconstitutionally vague. 
A. Vagueness Standards 
The void-for-vagueness doctrine derives from the due process clauses of the Fifth 
and Fourteenth Amendments, the former applying to the federal government and the latter 
to the states. Johnson v. United States, 576 U.S. 591, 595 (2015); Kolender v. Lawson, 461 
U.S. 352, 353 (1983). T he Fourteenth Amendment provides no state shall “deprive any 
person of life, liberty, or property, without due process of law ,” U.S. Const. amend. XIV, 
§ 1 , and “the most basic of due process’s customary protections is the demand of fair 
notice,” Sessions v. Dimaya , 138 S.Ct. 120 4, 1225 (2018) (Gorsuch, J., concurring). A 
state therefore violates due process of law by taking away someone’s life, liberty, or 
property under a law “so vague that it fails to give ordinary people fair notice of the conduct 
it punishes, or so standardless that it invites arbitrary enforcement.” Johnson, 576 U.S. at 
595. “In other words, ordinary notions of fair play and the settled rules of law are violated 
if police officers, prosecutors, and judges are essentially defining crimes and fixing 
penalties by filling statutory gaps so large that doing so becomes essentially legislative.” 
Knox v. Brnovich, 907 F.3d 1167, 1182 (9th Cir. 2018) (cleaned up). 
“The degree of vagueness that the Constitution tolerates —as well as the relative 
importance of fair no tice and fair enforcement —depends in part on the nature of the 
enactment.” Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 498 
(1982). Criminal laws receive the most exacting scrutiny because “[t]he essential purpose 
of the ‘void for vagueness’ doctrine is to warn individuals of the criminal consequences of 
their conduct.” Jordan v. De George , 341 U.S. 223, 2 30 (1951). In contrast, the 
Constitution has “greater tolerance of enactments with civil rather than criminal penalties 
because the consequences of imprecision are qualitatively less severe.” Vill. of Hoffman 
Ests., 455 U.S. at 498–99. Still, the Supreme Court has applied exacting vagueness review 

 
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to civil laws when they have sweeping or grave consequences. See Dimaya, 138 S.Ct. at 
1213 (applying “the most exacting vagueness standard” to removal cases, which are civil 
in nature, because of the gravity of the consequences); Id. at 1229 (Gorsuch, J. concurring) 
(“[T]he happenstance that a law is found in the civil or criminal part of the statute books 
cannot be dispositive.”). What matters is the nature of the law not the label attached to it. 
B. Antecedent Issues 
1. Webster is Inapposite 
In Webster, a group of healthcare professionals brought a facial constitutional 
challenge to, among other provisions, a section of Missouri law that read: 
1. The general assembly of this state finds that: 
(1) The life of each human being begins at conception; 
(2) Unborn children have protectable interests in life, health, 
and well-being; 
(3) The natural parents of unborn children have protectable 
interests in the life, health, and well -being of their unborn 
child. 
2. Effec tive January 1, 1988, the laws of this state shall be 
interpreted and construed to acknowledge on behalf of the 
unborn child at every stage of development, all the rights, 
privileges, and immunities available to other persons, citizens, 
and residents of th is state, subject only to the Constitution of 
the United States, and decisional interpretations thereof by the 
United States Supreme Court and specific provisions to the 
contrary in the statutes and constitution of this state. 
3. As used in this section, t he term “unborn children” or 
“unborn child” shall include all unborn child or children or the 
offspring of human beings from the moment of conception 
until birth at every stage of biological development. 
4. Nothing in this section shall be interpreted as c reating a 
cause of action against a woman for indirectly harming her 
unborn child by failing to properly care for herself or by failing 
to follow any particular program of prenatal care. 
Mo. Rev. Stat. § 1.205.1 . The Supreme Court refused to entertain the constitutional 
challenge, finding this provision could fairly be read as a preamble—inoperative precatory 
language—expressing a value judgment favoring childbirth over abortion. Webster, 492 
U.S. at 506. The Supreme Court further explained “the extent t o which the preamble’s 

 
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language might be used to interpret other state statutes or regulations is something that only 
the courts of Missouri can definitively decide. ” Id. Though the Supreme Court did not 
foreclose the possibility that a federal court cou ld address the preamble “should it be 
applied to restrict the activities” of the plaintiffs “in some concrete way,” it concluded that 
it lacked power to decide whether the preamble’s directive was unconstitutional in the 
context of a pre-enforcement facial challenge. Id. at 506–07. 
 The language in the Missouri preamble is similar to the Interpretation Policy. So, 
when the Court ruled last year on Plaintiffs’ first preliminary injunction motion, it 
concluded that Plaintiffs’ facial challenge was premature because, like in Webster, whether 
and to what extent the Interpretation Policy might be used to interpret other provisions of 
Arizona law is something that Arizona courts must decide in the first instance. (Doc. 52 at 
8–9.) 
But “it is never too late to surrender former views to a better considered position.” 
South Dakota v. Wayfair, Inc. , 138 S.Ct. 2080, 2100 (2018) (Thomas, J., concurring) 
(cleaned up). The Court is now persuaded it was wrong to rely on Webster the first go 
around. Webster was not a vagueness case. The Missouri preamble was challenged on 
substantive due process grounds, on the theory that by endorsing one view of when life 
began, the preamble infringed on the then -existing rights of women to terminate 
pregnancies. The Sup reme Court concluded the substantive due process challenge was 
premature because it was unclear whether or to what extent the preamble would be applied 
to restrict the activities of Missouri’s abortion providers, and therefore it was impossible 
to assess in advance whether abortion access would be curtailed to an intolerable degree. 
Webster, 492 U.S. at 506–07. But in a vagueness challenge (which sounds in procedural, 
rather than substantive, due process), the lack of clarity is the whole point. A law is 
unconstitutionally vague if its application is so unclear that people of ordinary intelligence 
cannot figure out in advance how to comply with it. Webster’s wait -and-see approach 
might work for substantive due process challenges , where the injury depends on how the 
law will be applied, but it is a mismatch in a case about vagueness, where the injury stems 

 
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from the uncertainty surrounding how the law might apply. Though the Court overlooked 
the critical distinction between a substantive and a procedural due process challenge during 
last year’s preliminary injunction phase, the Court sees “no reason why [it] should be 
consciously wrong today because [it] was unconsciously wrong yesterday.” Com. of 
Massachusetts v. United States , 333 U.S. 611, 639 –40 (1948) (Jackson, J., dissenting). 
Webster is inapposite.6 
2. Rules Against Vagueness Apply to the Interpretation Policy 
Defendants argue the Interpretation Policy is not subject to a vagueness challenge 
because it is not a substantive law ; it is a rule of statu tory construction. (Doc. 113 at 9 –
10.) Though Defendants’ premise is right, their conclusion is wrong. 
Standing alone, t he Interpretation Policy is neither a criminal nor a civil statute. 
Arizona law categorizes it as a rule of statutory construction, one directing that all other 
provisions of Arizona law be interpreted to acknowledge the equal rights of the unborn. 
Neither the parties nor the Court could find any case s applying vaguenes s principles to 
codified rules of statutory construction. But the parties and the Court also are unaware of 
any case categorically exempting such rules from vagueness challenges. 
The Interpretation Policy is not immune from a vagueness challenge merely because 
Arizona labeled it a rule of statutory construction. “[D]ue process protections against 
vague laws are ‘not to be avoided by the simple label a State chooses to fasten upon its 
conduct or its statute.’” Dimaya, 138 S.Ct. at 1229 (Gorsuch, J. concur ring) (quoting 
Giaccio v. Pennsylvania , 382 U.S. 399, 402 (1966) ). Indeed, definitions and rules of 
statutory construction perform similar function s, albeit at different levels of generality . 
Standing alone, n either are operative provisions. They instea d work in tandem with 
operative laws to help people understand what those laws mean. And the Supreme Court 
has applied vagueness principles to void ambiguous definitions. 
 
6 Webster also is distinguishable. There, the plaintiffs attacked the preamble 
facially—that is, in all its applications. Here, Plaintiffs attack the Interpretation Policy on 
as as -applied basis, namely as it might be applied to Plaintiffs’ provision of otherwise 
lawful abortion care. 

 
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For example, in Johnson, the Supreme Court considered whether part of the 
definition of “violent felony” in the Armed Career Criminal Act (“ACCA”) was too vague. 
576 U.S. at 593. Federal law forbids certain people (such as convicted felons) from 
possessing firearms, and the ACCA increases the penalty for violating this prohibi tion if 
the violator has three or more earlier convictions for “a violent felony.” 18 U.S.C. §§ 
922(g), 924(e)(1). The ACCA defines “violent felony” as: 
any crime punishable by imprisonment for a term exceeding 
one year . . . that— 
(i) has as an element the use, attempted use, or threatened 
use of physical force against the person of another; or 
(ii) is burglary, arson, or extortion, involves use of 
explosives, or otherwise involves conduct that presents 
a serious potential risk of physical injury to another.” 
18 U.S.C. § 924(e)(2)(B) (emphasis added). The italicized portion is referred to as the 
residual clause. The residual clause is not itself a substantive law. It instead tells people 
how to interpret the operative parts of federal law that impose heightened penalties for 
certain proscribed conduct. Yet, in Johnson the Supreme Court concluded this definition 
was unconstitutionally vague. 576 U.S. at 606. And in doing so, the Supreme Court did 
not void the entire ACCA, or even the entire definition of “violent felony.” The Supreme 
Court voided only that portion of the definition causing the vagueness problem. Id. 
 Similarly, in Dimaya, the Supreme Court voided for vagueness part of the definition 
of “aggravated felony” in the Immigration and Nationality Ac t (“INA”), which contained 
a residual clause similar to the ACCA. 138 S.Ct. at 1223. The residual clause’s definition 
of “aggravated felony” is not by itself an operative law; it helps people understand how to 
interpret and apply the substantive provisions of the INA. The Supreme Court did not 
require the challengers in Johnson or Dimaya to attack the operative parts of the laws at 
issue. Instead, challenges were made to discrete parts of statutory definitions that, when 
applied to interpret the operative provisions, created intolerable uncertainty over the reach 
of those laws. 

 
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Plaintiffs’ challenge to the Interpreta tion Policy is no different. They need not 
challenge the substantive laws they believe will become vague if the Interpretation Policy 
is not enjoined because the language of those laws is not the problem. Rather, the problem 
is the Interpretation Policy, which causes intolerable uncertainty over the reach of 
Arizona’s other laws. Arizona’s classification of the Interpretation Policy as a rule of 
statutory construction does not exempt it from ordinary principles of fair notice. What’s 
more, because the Interpretation Policy by its terms applies to all of Arizona’s laws, it could 
drastically expand the scope of Arizona’s criminal, civil, and regulatory provisions. The 
consequences of imprecision are potentially sweeping and severe. T he Court therefore 
finds it appropriate to test the Interpretation Policy against exacting vagueness standards. 
C. The Interpretation Policy is Unconstitutionally Vague 
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. Arizona law does not define “acknowledge.” Merriam -Webster’s dictionary 
defines “acknowledge” as “to recognize the rights, authori ty, or status of,” “to disclose 
knowledge of or agreement with,” “to express gratitude or obligation for,” “to take notice 
of,” “to make known the receipt of,” or “to recognize as genuine or valid.” Acknowledge, 
Merriam-Webster.com, https://www.merriam-webster.com/dictionary/acknowledge (last 
visited July 11, 2022). Black’s Law Dictionary defines “acknowledge” as “[t]o recognize 
(something) as being factual or valid,” “[t]o show that one accepts responsibility for,” “[t]o 
make known the receipt of,” “[t]o confirm as genuine before an authorized officer,” or “to 
certify as genuine.” Acknowledge, Black’s Law Dictionary (11th ed. 2019) . “[T]he plain 
meaning of the term[] is so broad that if offers little guidance[.]” In re Adoption of B.B., 
417 P.3d 1, 19 (Utah 2017). And, at bottom, Plaintiffs fear licensing, law enforcement, 
and judicial officers might take a maximalist view of what it means to “acknowledge” the 
equal rights of the unborn and use the Interpretation Policy to expand the definition of 
“person” to implicitly proscribe Plaintiffs’ conduct. 

 
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Several provisions of Arizona law define “person.” For example, A.R.S. § 1-215 
supplies certain default definitions that apply to “the statutes and laws of this state, unless 
the context otherwise requires.” Section 1-215(29) defines “person” to include: 
a corporation, company, partnership, firm, association or 
society, as well as a natural person. When the word “person” 
is used to designate the party whose property may be the 
subject of a criminal or public offense, the term includes the 
United States, this state, or any territory, state or country, or 
any political subdivision of this state that may lawfully own 
any property, or a public or private corporation, or partnership 
or association. When the word “person” is used to designate 
the violator or offender of any law, it includes a corporation, a 
partnership or any association of persons. 
Arizona’s criminal code defines “person” to mean: 
a human being and, as the context requires, an enterprise, a 
public or private corporation, an unincorporated association, a 
partnership, a firm, a society, a government, a governmental 
authority or an individual or entity capable of holding a legal 
or beneficial interest in property. 
A.R.S. § 13-105(30). Neither of these definitions includes the unborn. And Arizona knows 
how to clearly include the unborn within the reach of a statute. For example, Arizona’s 
homicide statutes explicitly include an “unborn child” in the definition of persons who can 
be victims (while also explicitly exempting lawful abortion from the general rule) . See 
A.R.S. §§ 13-1102 (negligent homicide), 13-1103 (manslaughter), 13-1104 (second degree 
murder), & 13-1105 (first degree murder). 
 The Interpretation Policy stops short of explicitly amending any statutory definition 
of “person.” But that begs the question: if the Interpretation Policy does not change the 
legal definition of “person” in Arizona, then what does it do? How does one 
“acknowledge” the equal rights of the unborn when the aforementioned definitions of 
“person” appear to exclude the unborn from the protection of vast swaths of Arizona law? 
The Interpretation Policy either does absolutely nothing, or it does something. What 
that something might be is a mystery or, as Defendants put it, “anyone’s guess.” (Doc. 113 
at 8.) And that is the problem. When the punitive and regulatory weight of the entire 
Arizona code is involved, Plaintiffs should not have to guess at whether their conduct is on 

 
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the right or the wrong side of the law. Nor should they have to hire a lawyer and file 
declaratory judgment actions in state court, as suggested by Defendants at oral argument. 
A law which requires such extraordinary effort to decipher fails to give ordinary people 
fair notice of the conduct it permits and proscribes. 
What’s more, it is entirely unclear how to reconcile the I nterpretation Policy with 
Arizona’s existing laws permitting and regulating abortion. At present, the precise legal 
status of abortion in Arizona is murky. One provision of Arizona law permits abortion 
until fetal viability. A.R.S. § 36 -2301.01. But Ar izona also has an older, pre -statehood 
law on its books that prohibits abortion unless necessary to save the woman’s life. A.R.S. 
§ 13-3603. And Arizona recently enacted a new law (slated to take effect later this year) 
that would, except in a medical emergency, prohibit abortions after fifteen weeks gestation. 
See S.B. 1164, 55th Leg., 2d Reg. Sess. (Ariz. 2022). S.B. 1164, however, explicitly states 
it does not repeal the pre-statehood law. Id. Attorney General Brnovich has expressed his 
view that A rizona’s pre -statehood abortion ban is enforceable (or at least will be if an 
injunction issued by the Arizona Court of Appeals in Nelson v. Planned Parenthood Center 
of Tucson, Inc. , 505 P.2d 580, 590 (Ariz. Ct. App. 1973) is lifted) , but that view is not 
universally shared among Arizona’s elected officials. 
Regardless of how this dust settles, even under the strictest of Arizona’s potential 
abortion regimes, some abortions would remain lawful. And Arizona has an assortment of 
laws that recognize and regu late the provision of legal abortion. See, e.g., A.R.S. §§ 36 -
2155, 36-2153(E), 32-2531(B), 36-449.03(C)(3)(a)–(b) & Ariz. Admin. Code §§ R9 -10-
1501(1), R9 -10-1507(B)(2)–(3) (licensing and credentialing requirements for abortion 
providers); A.R.S. §§ 36-449.02, 36-449.03 & Ariz. Admin. Code §§ R9-10-1513, R9-10-
1515 (abortion clinic licensure requirements); A.R.S. §§ 36 -2153 & 36 -2156 (abortion 
informed consent requirements); A.R.S. §§ 36 -449.03(I), 36 -2161–62 & Ariz. Admin. 
Code § R9-10-1505(A) (abortion statistical and demographic data reporting requirements); 
A.R.S. § 13 -3603.01 (second trimester abortion method restriction); A.R.S. § 13 -

 
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3603.02(A)(1) (ban on abortion for reasons of race or sex); A.R.S. § 36 -2152 (consent 
requirements for minors); A.R.S. § 36-3604 (restrictions on telemedicine for abortion care). 
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. These concerns are not irrational. For 
example, although Arizona’s homicide statutes apply to the unborn, these laws also include 
explicit exemptions for lawful aborti ons, meaning these statutes make it crystal clear that 
someone lawfully performing an abortion is not committing murder. See A.R.S. §§ 13 -
1102–05. But other parts of Arizona’s criminal code—for example, Arizona’s prohibitions 
on assault, child endangerme nt, and child abuse, A.R.S. §§ 13 -1203, 13 -3619, & 13 -
3623—do not contain such explicit exemptions , leaving abortion providers left to guess 
whether their conduct could be criminalized under a maximalist application of the 
Interpretation Policy. 
 Similar c oncerns recently compelled the United States District Court for the 
Northern District of Georgia to enjoin on vagueness grounds an amendment defining 
“natural person” for purposes of Georgia law to include an “unborn child,” defined as an 
embryo or fetus “at any stage of development who is carried in the womb.” SisterSong 
Women of Color Reproductive Justice Collective v. Kemp, 472 F.Supp.3d 1297, 1302 (N.D. 
Ga. 2020). According to the district court in that case: 
[P]eople of common intelligence will be forced to guess at the 
core meaning of [the] Personhood Definition, precisely 
because it —by its own terms —applies throughout the entire 
Georgia Code. It explicitly grants embryos/fetuses at any stage 
of development all the protections “persons” enjoy under 
Georgia law. Clearly, that would render unlawful at least some 
actions that are currently lawful, but even the litigants in this 
case are forced to guess which. The State Defendants have 
been unable to articulate what this will mean for Plaintiffs and 
Georgians more generally. Given the severity of the potential 
penalties, the Court declines to find that Plaintiffs must wait to 
be prosecuted under an individual statute by operation of the 
Personhood Definition to challenge its validity. 

 
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Id. at 1316–17. 
 The same is true here, except the Interpretation Policy suffers from an additional 
layer of ambiguity. The amendment at issue in Georgia explicitly changed the legal 
definition of “natural person.” No one had to guess about whether the amendment 
redefined the term. Here, however, it is unclear whether the Interpretation Policy changes 
any statutory definition of “person.”7 As such, “[i]t remains entirely unclear to this Court 
how [the Interpretation Policy] will be effectuated or enforced. To the extent Plaintiffs are 
forced to hypothesize about ways in which their conduct might violate statutes ” if those 
statutes are interpreted and construed to acknowledge the equal rights of the unborn, “it is 
precisely because the [Interpretation Policy] puts t hem at the mercy of the State ’s 
discretion, in violation of their due process rights.” Id. at 1316. 
 In sum, the Court finds Plaintiffs are likely to succeed on the merits of their claim 
because three features of the Interpretation Policy “conspire to make it unconstitutionally 
vague.” Johnson, 576 U.S. at 597. First, the Interpretation Policy offers no guidance on 
what it means to “acknowledge” the equal rights of the unborn , especially if 
acknowledgment means something less than including the unborn w ithin the express 
definition of “person.” Second, the Interpretation Policy is incongruous with other aspects 
of Arizona law—specifically, provisions that do not define “person” to include an “unborn 
child” and provisions that permit and regulate abortio n. It is paradoxical how one can 
“acknowledge” the equal rights of the unborn while simultaneously permitting and 
regulating abortion and excluding the unborn from the express definition of “person.” See, 
e.g., Roe v. Wade, 410 U.S. 113, 157 n.54 (1973), overruled on other grounds by Dobbs, 
2022 WL 2276808. And third, these uncertainties create an intolerable risk of arbitrary 
enforcement. Medical providers should not have to guess about whether the otherwise 
lawful performance of their jobs could lead to criminal, civil, or professional liability solely 
 
7 At oral argument, Defendants said the Interpretation Policy did not change the 
definition of “person” in Arizona’s criminal code. But that confidence is at odds with 
Defendants’ response brief , which states “[h]ow the Interpretation Policy might alter the 
Arizona judiciary’s analysis of these issues, if at all, is anyone’s guess.” (Doc. 113 at 8.) 
How the Interpretation Policy applies to other Arizona laws cannot be both a question mark 
and an exclamation point. 

 
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based on how literally or maximalist state licensing, law enforcement, and judicial officials 
might construe the Interpretation Policy’s command. 
II. Irreparable Harm, Balance of Hardships, and the Public Interest 
Having concluded that Plaintiffs are likely to succeed on the merits of their 
vagueness claim, the Court finds the remaining preliminary injunction factors favor relief. 
Because of its vagueness, the Interpretation Policy deprives Plaintif fs of their Fourteenth 
Amendment procedural due process rights. “It is well established that the deprivation of 
constitutional rights unquestionably constitutes irreparable injury” and “it is always in the 
public interest to prevent the violation of a par ty’s constitutional rights.” Melendres v. 
Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (cleaned up). As for the balance of hardships, 
the evidence shows the Interpretation Policy is visiting concrete harms o n Drs. Isaacson 
and Reuss and their patients. In declarations submitted to the Court in support of their 
preliminary injunction motion, Drs. Isaacson and Reuss aver that, because the 
Interpretation Policy makes it impossible for them to know whether the otherwise lawful 
abortion care they provi de to their patients could be punished under other provisions of 
Arizona law, they have stopped providing abortion care altogether.8 (Doc. 107-1 at 4 ¶ 13, 
10–11 ¶¶ 15, 17.) In turn, this harms their patients, who are denied time-sensitive medical 
treatment. (Id. at 4–5 ¶¶ 14–15, 10–11 ¶¶ 13, 15, 17.) In contrast, Defendants stand only 
to lose the ability to enforce an intolerably vague rule of statutory construction. 
What’s more, based on the answers Defendants gave to the Court’s questions at oral 
argument, Defendants seem to believe the Interpretation Policy does little to nothing at all.9 
Defendants are not harmed by an order enjoining them from enforcing what might be a 
 
8 At present there is considerable confusion over the legal status of abortion in 
Arizona, and this confusion might reasonably chill Drs. Isaac son and Reuss from 
performing some abortions. But even under the most restrictive abortion law currently on 
the books, abortion is legal under some circumstances. An order preliminarily enjoining 
the Interpretation Policy would alleviate the harm in those circumstances in which abortion 
care is otherwise legal. 
9 The only example of a concrete, real -world impact of the Interpretation Policy 
Defendants could offer the Court at oral argument was potentially to extend wrongful death 
protections to the unborn before fetal viability. The Arizona Supreme Court already held 
thirty-seven years ago that “the word ‘person’ in the wrongful death statutes (A.R.S. § 12-
611 et seq.) encompasses a stillborn, viable fetus.” Summerfield v. Super. Ct. In and For 
Maricopa Cnty., 698 P.2d 712, 724 (Ariz. 1985) (emphasis added). 

 
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purely symbolic provision of state law. As the Court previously noted, the Interpreta tion 
Policy either does nothing (what Webster called inoperative precatory language), or it does 
something, in which case it is incumbent on the state to be precise about what that 
something is . Plaintiffs should not have to operate under a shadow of uncertainty , 
especially when Defendants have been unable to provide a coherent and satisfactory 
explanation of what the Interpretation Policy does. 
Finally, a preliminary injunction will not leave Arizona hamstrung. If Arizona wants 
to extend legal protections to the unborn—including, it seems, before medically recognized 
conception—nothing in this order precludes it from doing so clearly and explicitly, by 
amending the definition of “person” in those discrete statutes where Arizona wants the 
change to operate, and by clearly and explicitly stating whether those applications exempt 
otherwise lawful abortion care. Arizona’s homicide statutes are an example of this 
approach. Those provisions clearly state that the unborn are included within the cl ass of 
persons who can be victims of those crimes, but also explicitly carve out exceptions for 
lawfully performed abortions. See A.R.S. §§ 13-1102–05. They therefore avoid the pitfalls 
of the Interpretation Policy by clearly changing the definition of “person” and harmonizing 
their commands with Arizona’s other laws permitting and regulating abortion.10 But what 
Arizona cannot do is enact a vague rule of statutory construction that sows confusion 
throughout its laws, leaving people to guess what their conduct will reap. 
CONCLUSION 
Although this motion comes to the Court in the context of abortion care, it is not 
about abortion per se. It is about giving people fair notice of what the law means so that 
they know in advance how to comply. The Interpretation Policy is so vague that it “makes 
it impossible for Plaintiffs to do their work with fair notice of conduct that is forbidden or 
 
10 The Court expresses no view on whether a law defining “person” to include the 
unborn for all purposes and without exception would be constitutional. That issue is not 
before it. But see SisterSong, 472 F.Supp.3d at 1314–18. The Court merely observes that 
if Arizona did for other discrete laws what it has already done for its homicide statutes, the 
specific vagueness problems Plaintiffs have highlighted likely would not be present. 

 
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required, in violation of their procedural due process rights.” SisterSong, 472 F.Supp.3d 
at 1317–18 (cleaned up). Therefore, 
 IT IS ORDERED that Plaintiffs’ motion for a preliminary injunction (Doc. 107) is 
GRANTED. During the pendency of this case, Defendants are enjoined from enforcing 
A.R.S. § 1-219 as applied to abortion care that is otherwise permissible under Arizona law. 
Defendants further are enjoined from retroactively using the Interpretation Policy to take 
enforcement action against those who perform ed otherwise lawful abortions during the 
time that this preliminary injunction is in effect.11 
 Dated this 11th day of July, 2022. 
 
 
 
Douglas L. Rayes 
United States District Judge 
 
 
 
 
 
11 Federal Rule of Civil Procedure 65(c) provides that the Court may issue a 
preliminary injunction “only if the movant gives security in an amount that the court 
considers proper to pay the costs and damages sustained by any party found to have been 
wrongfully enjoined or restrained.” There is no evidence Defendants will face any 
monetary injury if a preliminary injunction is issued. The Court therefore exercises its 
discretion to waive the bond requirement. See Diaz v. Brewer, 656 F.3d 1008, 1015 (9th 
Cir. 2011). 

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