Arizona Court of Appeals upholds state protection of conscience law

IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE

Appeal from the Superior Court in Maricopa County
Cause No. CV2009-029110

The Honorable Donald Daughton, Judge (Retired)

VACATED IN PART, REVERSED IN PART, AND AFFIRMED IN PART

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VI. PPAZ'S challenge to the right of refusal provisions cannot succeed.

¶42 Although the trial court only enjoined the 2009 amendments to A.R.S. § 36-2154, PPAZ challenged it in its entirety. A.R.S. § 36-2154 reads:

A. A hospital is not required to admit any patient for the purpose of performing an abortion. A physician, or any other person who is a member of or associated with the staff of a hospital, or any employee of a hospital, doctor, clinic or other medical or surgical facility in which an abortion has been authorized, who states in writing an objection to the abortion on moral or religious grounds is not required to facilitate or participate in the medical or surgical procedures that will result in the abortion.

B. A pharmacy, hospital or health professional, or any employee of a pharmacy, hospital or health professional, who states in writing an objection to abortion, abortion medication, emergency contraception or any medication or device intended to inhibit or prevent implantation of a fertilized ovum on moral or religious grounds is not required to facilitate or participate in the provision of an abortion, abortion medication, emergency contraception or any medication or device intended to inhibit or prevent implantation of a fertilized ovum. The pharmacy, hospital or health professional, or an employee of the pharmacy, hospital or health professional, shall return to the patient the patient's written prescription order.

¶43 The state contends that PPAZ has no standing to challenge the law. However, the statute establishes the public policy of Arizona, and although the question is not before us now, PPAZ faces potential employment litigation with employees who might be fired for a refusal pursuant to its provisions. See Galati v. Am. W. Airlines, Inc., 205 Ariz. 290, 292 n.2, ¶ 5, 69 P.3d 1011, 1013 n.2 (App. 2003) (statutes create public policy); A.R.S. § 23-1501(3)(b) (employee fired in violation of public policy has a claim for wrongful termination). Therefore, as an employer of persons covered by the statute's provisions, PPAZ may face a cognizable legal detriment and has standing to challenge the statute.

¶44 PPAZ argues that the refusal provisions violate a woman's right to an abortion. However, that argument is foreclosed by our supreme court's decision in Regents. There, a pregnant woman challenged a statute which prohibited abortions at "any facility under the jurisdiction of the board of regents," in that case the University Hospital, unless necessary to save the life of the pregnant woman. Regents, 113 Ariz. at 178, 549 P.2d at 150. Because the plaintiff did not demonstrate that the University Hospital was the only reasonable choice available to provide the abortion, the court held that the statute did not significantly interfere with her right to choose to have an abortion. Id. at 180, 549 P.2d at 152. The court explained that:

The whole matter is in reality a matter of preference. Even as plaintiff does not have an absolute right to an abortion on demand,she also does not have the right to select any public facility she chooses for an abortion. If there are alternate adequate public facilities available to her, her right of choice has been protected, and she cannot complain that she would rather have a different facility. Id. Even a state actor can refuse to facilitate an abortion, as long as the woman is not effectively denied her right to an abortion as a result.

¶45 Moreover, any reproductive rights that might exist under Article 2, Sections 8 or 13, can only be asserted against governmental acts, not the decisions of private individuals. Hart v. Seven Resorts Inc., 190 Ariz. 272, 276-77, 947 P.2d 846, 850-51 (App. 1997) (Article 2, Section 8 does not apply to acts of private individuals); Kahn v. Thompson, 185 Ariz. 408, 413, 916 P.2d 1124, 1129 (App. 1995) (equal protection challenge under Article 2, Section 13 "is not applicable to conduct between private parties"). Therefore a woman's right to an abortion or to contraception does not compel a private person or entity to facilitate either. We therefore hold that PPAZ's facial challenge to the refusal provisions of A.R.S. § 36-2154 on the grounds that they violate Article 2, Sections 8 or 13, cannot succeed.

. . .whatever right a woman may have to "chart her own medical course," it cannot compel a health-care provider to provide her chosen care.

¶46 In its arguments below, PPAZ also contended the statutes would "thwart women's ability to chart their own medical course." As explained above, whatever right a woman may have to "chart her own medical course," it cannot compel a health-care provider to provide her chosen care.

PPAZ also argues here as below that the statute "allows[s] medical professionals to abandon their patients, even in an emergency." . . . we conclude that the statute does not excuse medical malpractice or eliminate the common-law duty of health-care providers to provide the standard of care owed to their patients. PPAZ's challenge to the statute therefore cannot succeed on this ground.

¶47 PPAZ also argues here as below that the statute "allows[s] medical professionals to abandon their patients, even in an emergency." We do not read the statute so broadly. Under the common law, a physician who fails to provide the "standard of care" to a patient -- "the same care . . . exercised by other physicians of the same class in the community in which he practiced" -- has committed a breach of duty and may be liable for malpractice. Seisinger v. Siebel, 220 Ariz. 85, 94, ¶¶ 32- 33, 203 P.3d 483, 492 (2009); see also A.R.S. § 12-563. As an action for damages originating in the common law, medical malpractice falls within the scope of Article 18, Section 6, of the Arizona Constitution, which "prevents abrogation of all . . . actions in tort which trace origins to the common law." Duncan v. Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, 313, ¶ 28, 70 P.3d 435, 442 (2003). When interpreting a statute, we construe it to be constitutional if at all possible, avoid overbroad interpretations in derogation of common-law rights of action, and as a rule look for explicit expression of legislative intent before concluding the legislature intends to deny a common-law action. Hayes v. Continental Ins. Co., 178 Ariz. 264, 272-73, 872 P.2d 668, 676-77 (1994). Therefore, we conclude that the statute does not excuse medical malpractice or eliminate the common-law duty of health-care providers to provide the standard of care owed to their patients. PPAZ's challenge to the statute therefore cannot succeed on this ground.

¶48 PPAZ also argues that the statute violates Article 2, Section 12, sentence 1, of the Arizona Constitution, which provides that "The liberty of conscience secured by the provisions of this constitution shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace and safety of the state." PPAZ claims that the statute violates the "peace and safety of the state" provision of that section, but cites no precedent, either in Arizona or in a state with a similar constitutional provision, holding that this part of the constitution establishes a private right of action. And no authority suggests that permitting individuals to choose whether to facilitate abortions places the peace and safety of the state at risk.

¶49 To determine whether this constitutional provision could support PPAZ's challenge, we first examine the plain language of the provision involved. If the constitutional provision is clear on its face and is logically capable of only one interpretation, we simply follow that text. When a constitutional or statutory provision is not clear, we may look to the context, subject matter, historical background, effects, consequences, spirit, and purposeof the law. Finally, we strive to interpret a constitutional provision or statute in a manner that gives meaning to all of its language. Chavez v. Brewer, 222 Ariz. 309, 319, ¶ 32, 214 P.3d 397, 407 (App. 2009). Here the plain language of the text is dispositive. Article 2, Section 12, sentence 1 provides limitations on the liberty of conscience protected by the Arizona Constitution by defining what it does not protect. It is therefore a limitation on the judiciary's authority to "say what the law is," Chavez, 222 Ariz. at 316, ¶ 18, 214 P.3d at 404 (citation omitted), but does not limit the legislature's authority to enact statutes that provide greater protections to individual liberty of conscience than those provided in the constitution. As a result, this sentence of the constitution does not provide a basis upon which PPAZ can challenge the constitutionality of A.R.S. § 36-2154.

¶50 We therefore hold that PPAZ cannot succeed in its facial challenge to A.R.S. § 36-2154 on the grounds it has presented.

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CONCLUSION

¶66 We hold that the statutes affected by the preliminary injunction are constitutional, and we therefore vacate the injunction in its entirety. On remand, we direct the trial court to grant the motions for intervention of the Speaker of the House, Ave Maria Pharmacy, Christian Medical and Dental Associations, Christian Pharmacists Fellowship International, American Association of Pro-Life Obstetricians and Gynecologists, and Catholic Medical Association. We affirm the denial of intervention to the other applicants. We remand for further proceedings consistent with this opinion.

PETER B. SWANN, Presiding Judge

CONCURRING:

DANIEL A. BARKER, Judge

MICHAEL J. BROWN, Judge