NO.

14-284

In the Supreme Court of the United States
WILLIAM HUMBLE, DIRECTOR OF THE
ARIZONA DEPARTMENT OF HEALTH SERVICES,
IN HIS OFFICIAL CAPACITY,
Petitioner,
v.
PLANNED PARENTHOOD ARIZONA, INC.;
WILLIAM RICHARDSON, M.D., DBA TUCSON
WOMEN’S CENTER; WILLIAM H. RICHARDSON,
M.D., P.C., DBA TUCSON WOMEN’S CENTER,
Respondents.
On Petition for Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit

REPLY BRIEF FOR THE PETITIONER
THOMAS C. HORNE
Attorney General of
Arizona
ROBERT L. ELLMAN
Solicitor General
Counsel of Record

MICHAEL TRYON
Senior Litigation Counsel
KEVIN D. RAY
Chief Counsel, Education
and Health Section
AUBREY JOY CORCORAN
Assistant Attorney General
1275 West Washington Street
Phoenix, Arizona 85007-2926
(602) 542-3333
Robert.Ellman@azag.gov
Counsel for Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . ii
I.

This Case Is Suitable for Review Because the
Casey Standard Does Not Require Additional
Factual Development, There Is Not a
Reasonable Dispute About the Meaning of
the Challenged Arizona Law, and the
Pending State Court Challenge Will Not
Resolve the Circuit Split. . . . . . . . . . . . . . . . . 1

II.

This Case Presents a Substantial Circuit
Conflict Regarding the Proper Application of
the Casey Undue Burden Test that Warrants
Review at This Time. . . . . . . . . . . . . . . . . . . . 9

III.

Respondents Have Not Shown That the
Ninth Circuit’s Newly Adopted Weighing
Test Is Consistent with This Court’s
Precedent. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

ii
TABLE OF AUTHORITIES
CASES
Arizonans for Official English v. Arizona,
520 U.S. 43 (1997) . . . . . . . . . . . . . . . . . . . . . . . . 7
Bellotti v. Baird,
428 U.S. 132 (1976) . . . . . . . . . . . . . . . . . . . . . . . 7
Cline v. Okla. Coal. for Reprod. Justice,
313 P.3d 253 (Okla. 2013) . . . . . . . . . . . . . . . . . . 5
Cordray v. Planned Parenthood Cincinnati Region,
911 N.E.2d 871 (2009) . . . . . . . . . . . . . . . . . . . . . 5
Crandon v. United States,
494 U.S. 152 (1990) . . . . . . . . . . . . . . . . . . . . . . . 4
DTD Enterprises, Inc. v. Wells,
130 S. Ct. 7 (2009) . . . . . . . . . . . . . . . . . . . . . . . . 8
Gonzales v. Carhart,
550 U.S. 124 (2007) . . . . . . . . . . . . . . . . . . . 11, 12
Mazurek v. Armstrong,
520 U.S. 968 (1997) . . . . . . . . . . . . . . . . . . . . . . 10
MKB Mgmt. Corp. v. Burdick,
No. 20130259, 2014 WL 5450069 (N.D. Oct. 28,
2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10
Mount Soledad Memorial Ass’n v. Trunk,
132 S. Ct. 2535 (2012) . . . . . . . . . . . . . . . . . . . . . 3
Office of Senator Mark Dayton v. Hanson,
550 U.S. 511 (2007) . . . . . . . . . . . . . . . . . . . . . . . 3

iii
Parker v. Ellis,
362 U.S. 574 (1960), overruled in part on other
grounds by, 391 U.S. 234 (1968) . . . . . . . . . . . . 11
Planned Parenthood of Greater Texas Surgical
Health Services v. Abbott,
748 F.3d 583 (5th Cir. 2014) . . . . . . . . . . . . . 2, 10
Planned Parenthood of Greater Texas Surgical
Health Services v. Abbott,
951 F. Supp. 2d 891 (W.D. Tex. 2013) . . . . . . 5, 11
Planned Parenthood of Southeastern Pennsylvania
v. Casey,
505 U.S. 833 (1992) . . . . . . . . . . . . . . . . . . . . 2, 11
Planned Parenthood Se., Inc. v. Strange,
No. 2:13CV405-MHT, 2014 WL 3809403 (M.D.
Ala. Aug. 4, 2014), as corrected (Oct. 24, 2014),
supplemented, No. 2:13CV405-MHT, 2014 WL
5339294 (M.D. Ala. Oct. 20, 2014) and amended,
No. 2:13CV405-MHT, 2014 WL 5426891 (M.D.
Ala. Oct. 24, 2014) . . . . . . . . . . . . . . . . . . . . 10, 11
Planned Parenthood Southwest Ohio Region v.
DeWine,
696 F.3d 490 (6th Cir. 2012) . . . . . . . . . . 2, 10, 11
United States v. Braverman,
373 U.S. 405 (1963) . . . . . . . . . . . . . . . . . . . . . . . 5
Virginia v. Am. Booksellers Ass’n,
484 U.S. 383 (1988) . . . . . . . . . . . . . . . . . . . . . 7, 8
Va. Military Inst. v. United States,
508 U.S. 946 (1993) . . . . . . . . . . . . . . . . . . . . . . . 3

iv
Whole Woman’s Health v. Lakey,
769 F.3d 285 (5th Cir. 2014) vacated in part,
No. 14A365, 2014 WL 5148719 (U.S. Oct. 14,
2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
LEGISLATIVE MATERIAL
Ariz. Admin. Code § R9-10-1508(G) (2014) . . passim
Ariz. House Bill 2036, H.R. 2036, 50th Leg., 2d Reg.
Sess., § 9(A)(9) (Ariz. 2012) . . . . . . . . . . . . . . . . . 4
Ariz. Rev. Stat. § 36-449.03(E)(6) (2012) . . . . passim
OTHER AUTHORITIES
Robert L. Stern et al., Supreme Court Practice
(8th ed. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1
I.

This Case Is Suitable for Review Because
the Casey Standard Does Not Require
Additional Factual Development, There Is
Not a Reasonable Dispute About the
Meaning of the Challenged Arizona Law,
and the Pending State Court Challenge
Will Not Resolve the Circuit Split.

Respondents argue that the Court should delay
addressing the obvious circuit split over the application
of the undue burden standard because (a) the Petition
seeks review of a preliminary injunction; (b) the
Arizona courts have not construed Arizona Revised
Statute (“A.R.S.”) section 36-449.03(E)(6) and Arizona
Administrative Code (“A.A.C.”) section R9-10-1508(G)
(collectively the “Arizona law”); and (c) Respondents
have filed a state action challenging the Arizona law on
state law grounds. Respondents are wrong: the
Petition presents a pure issue of law that this Court
must resolve to correct the decision in this case and to
provide guidance to the many courts that must apply
the undue burden standard when determining the
constitutionality of abortion regulations. This Court’s
delay will guarantee that the outcome of abortion cases
in the Fifth, Sixth, and Ninth Circuits will depend on
the location of the state in which the regulation is
challenged and increase the lower courts’ uncertainty
in the circuits that have not addressed the standard.
a. Respondents argue that the “interlocutory
posture of this case alone warrants denying the
Petition,” implying that an incomplete factual record
makes the case unsuitable for review. (Opp. Br. 8-9.)
Because further factual development is unnecessary for
determining the correct standard, the Court should

2
grant review of the Petition even though it is
interlocutory.
Following the reasoning of Planned Parenthood of
Greater Texas Surgical Health Services v. Abbott, 748
F.3d 583 (5th Cir. 2014), and Planned Parenthood
Southwest Ohio Region v. DeWine, 696 F.3d 490 (6th
Cir. 2012), the district court denied Respondents’
request for a preliminary injunction because
Respondents failed to demonstrate that the Arizona
law imposed an undue burden under Planned
Parenthood of Southeastern Pennsylvania v. Casey, 505
U.S. 833 (1992), and because the State had shown
there was a rational basis for the Arizona law. (Pet.
App. 43-44.) In reversing the district court, the Ninth
Circuit did not address whether the Arizona law
created a substantial obstacle for a large fraction of the
women whom it affected—it instead rejected the Fifth
and Sixth Circuits’ analysis in Abbott and DeWine and
applied a weighing test that required the State to
demonstrate that the “challenged regulation actually
advances the state’s interests.” (Pet. App. 15-16, 1819.) Thus, the issue presented here is a legal
one—what is the correct test under Casey. The Court
should therefore grant the Petition. See Robert L.
Stern et al., Supreme Court Practice, 259 (8th ed. 2002)
(noting that the Court will grant review of an
interlocutory judgment when “there is some important
and clear-cut issue of law that is fundamental to the
further conduct of the case and that would otherwise
qualify as a basis for certiorari”). Respondents’
arguments attempt to obfuscate the issue of law that
the Petition presents.

3
Respondents cite to cases in which this Court
declined review over interlocutory orders (Opp. Br. 9),
but those cases are distinguishable. See Office of
Senator Mark Dayton v. Hanson, 550 U.S. 511, 515
(2007) (stating that no special circumstances existed
because the circuit split had been resolved); Mount
Soledad Memorial Ass’n v. Trunk, 132 S. Ct. 2535, 2536
(2012) (stating that a remedy could be fashioned in the
district court that would resolve the matter without
reaching the constitutional issue); Va. Military Inst. v.
United States, 508 U.S. 946 (1993) (same).
Here, if this Court denies the Petition, the district
court must preliminarily enjoin enforcement of the
Arizona law and determine whether to enter a
permanent injunction by applying the Ninth Circuit’s
incorrect undue burden test. There is no remedy that
would obviate the need to address the constitutional
issue here. Because the only means of resolving the
issue is for this Court to grant the Petition, review is
necessary and appropriate.
b. Respondents object to the Court’s review because
they claim that a “predicate question of state law . . .
remains to be resolved”—i.e., whether the Arizona law
prohibits all medication abortions. (Opp. Br. 9-13.)
But there is no legitimate statutory construction issue
and Respondents misconstrue this Court’s precedent in
arguing that this Court should deny review because the
Arizona courts have not construed the Arizona law.
The district court rejected Respondents’ argument
that the Arizona law is vague because physicians would
be confused by the Arizona law’s requirement that they
follow the U.S. Food and Drug Administration’s
(“FDA’s”) protocol when there was no protocol for the

4
second drug, misoprostol. (Pet. App. 39-40.) The
district court agreed with the State’s interpretation of
the Arizona law and concluded that any confusion “in
the statute is clarified by legislative fact #9, which
expressly and specifically defines the, ‘as approved by
the FDA and outlined in the [final printed labeling
instructions]’ protocol for mifepristone to consist of:
1) three 200 mg tablets of mifepristone taken orally,
followed by two 200 mcg tables of misopristol taken
orally.” (Id. [quoting Ariz. House Bill 2036, H.R. 2036,
50th Leg., 2d Reg. Sess., § 9(A)(9) (Ariz. 2012)].) The
Ninth Circuit assumed that the State’s construction
was correct. (Pet. App. 13.)
Respondents claim that the Legislature intended to
ban misoprostol—the second drug in the FDA-approved
protocol—because that drug’s final printed labeling
instructions do not include an abortion-related purpose.
(Opp. Br. 3.) But this argument is not only inconsistent
with the legislative history, it is also inconsistent with
the plain language of the Arizona law and legislative
intent.
Arizona Revised Statutes section 36449.03(E)(6) requires that “any medication . . . used to
induce an abortion is administered in compliance with
the protocol that is authorized by the [FDA] and that is
outlined in the final printing labeling instructions for
that medication.”
The final printed labeling
instructions for mifepristone require the use of
misoprostol. If the Legislature had intended to ban
abortion clinics from performing all medication
abortions, it would not have required use of the FDA’s
final printed labeling instructions but would have
simply banned abortion clinics from using any
medication to induce an abortion. See Crandon v.
United States, 494 U.S. 152, 158 (1990) (“In

5
determining the meaning of the statute, we look not
only to the particular statutory language, but to the
design of the statute as a whole and to its object and
policy.”); see also United States v. Braverman, 373 U.S.
405, 408 (1963) (stating that a statute cannot be
interpreted “so narrowly as to defeat its obvious
intent”). Accordingly, Respondents’ assertion that the
Arizona law bans all medication abortions is simply
untenable.
Respondents note that other courts have reached
different conclusions concerning the interpretation of
other state laws regulating medication abortion. (Opp.
Br. 10.) But as Respondents also note, the language of
those statutes varies. (Opp. Br. 15-16 [stating that the
Ohio statute interpreted in Cordray v. Planned
Parenthood Cincinnati Region, 911 N.E.2d 871 (2009),
did not ban all medication abortions because its
requirement to follow FDA protocol applied only to
mifepristone and that the Texas statute interpreted in
Planned Parenthood of Greater Texas Surgical Health
Services v. Abbott, 951 F. Supp. 2d 891 (W.D. Tex.
2013), did not prohibit all medication abortions because
the statutory definition referred to the Mifeprex
regimen].) Respondents do not acknowledge that in
finding that the Oklahoma statute banned all
medication abortions, the Oklahoma Supreme Court
relied on language that was quite different from the
language in the Arizona law. Compare Cline v. Okla.
Coal. for Reprod. Justice, 313 P.3d 253, 259 (Okla.
2013) (noting that the “Legislature’s use of the word ‘or’
to separate the ‘RU-486 (mifepristone)’ from ‘any
abortion-inducing drug’ shows its intent to treat the
terms as separate and distinct” and that misoprostol
fell within the broadly worded legislatively defined

6
term of “abortion-inducing drug” as any drug dispensed
“with the intent of terminating the clinically
diagnosable pregnancy”) with A.R.S. § 36-449.03(E)(6)
(requiring “any medication, drug or other substance
used to induce an abortion” be administered in
compliance with FDA protocol that is outlined in the
final printed label and not defining abortion-inducing
drug). None of these cases support Respondents’
argument that the district court incorrectly interpreted
the Arizona law.1
Even if there were some doubt as to the
construction of the Arizona law, this Court should not
deny certiorari when Respondents are arguing that the
Arizona law could be interpreted in a way that makes
it even more constitutionally suspect—i.e., imposing a
greater burden on a woman’s right to a pre-viability
abortion. This Court’s deference to state courts’
construction of their statutes arises from federalism
principles that caution against federal courts

1

Respondents also cite MKB Mgmt. Corp. v. Burdick, No.
20130259, 2014 WL 5450069 (N.D. Oct. 28, 2014), which interprets
North Dakota’s medication abortion statute. (Opp. Br. 10 n.9).
Although Respondents correctly note that the North Dakota
justices disagreed about the scope of the statute, Chief Justice
Vande Walle correctly determined that the legislative history of
the North Dakota statute demonstrated that “the legislation was
intended to permit medication abortions under the protocol tested
and authorized by the FDA final-printed-label protocol” and
therefore construed the North Dakota law “to permit medication
abortions under the FDA final-printed label protocol for
mifepristone.” Burdick, 2014 WL 5450069 at *18. Chief Justice
Vande Walle’s construction of North Dakota’s statute, which is
similar to the Arizona law, is consistent with the district court’s
construction of the Arizona law.

7
invalidating state laws where a state court may
construe the statute in a way that avoids a
constitutional challenge. See Arizonans for Official
English v. Arizona, 520 U.S. 43, 77-78 (1997) (vacating
the lower court’s finding of unconstitutionality and
noting that when faced with a constitutional challenge
to a state statute, federal courts should certify whether
the statute is subject to a limiting construction that
would avoid or substantially modify the constitutional
challenge); Bellotti v. Baird, 428 U.S. 132, 146-47
(1976) (reversing the lower court’s finding that a
Massachusetts statute was unconstitutional and
holding that the federal court should have abstained
from ruling on the constitutionality until the
Massachusetts court had the opportunity to interpret
the statute so as to avoid the necessity for federal
constitutional adjudication). Here, there is no need for
the Arizona Supreme Court to construe the Arizona law
because the Ninth Circuit determined that the Arizona
law is facially unconstitutional after assuming the
State’s less burdensome construction of the law was
correct.
Respondents also assert that “because ‘the nature
and substance of plaintiffs’ constitutional challenge
[may be] drastically altered if the statute is read
another way,’ Virginia v. Am. Booksellers Ass’n, 484
U.S. 383, 395 (1988), review is inappropriate when
either the district court or the Ninth Circuit may yet
ask the Arizona Supreme Court to offer a definitive
construction of the Arizona law.” (Opp. Br. 12.)
However, American Booksellers Association does not
support their argument. In that case, the Court
determined that the state court’s statutory construction
would substantially aid review, but it did not deny

8
review, it certified two questions to the Virginia
Supreme Court. 484 U.S. at 396-98. Thus, even if this
Court determines that the Arizona Supreme Court’s
interpretation of the Arizona law would be valuable for
its review, it should grant the Petition.
Finally, contrary to Respondents’ contention, DTD
Enterprises, Inc. v. Wells, 130 S. Ct. 7, 8 (2009) (Opp.
Br. 9-10) does not support denial of certiorari. This
Court denied the DTD Enterprises’ petition that
requested review of a trial court’s order certifying a
class action and requiring it to pay the costs of
notifying the class members. Id. at 7. Although the
trial court’s interpretation of a New Jersey law raised
serious due process concerns, this Court decided that
denial of certiorari was appropriate (1) because “the
state appellate courts denied petitioner leave to appeal
the trial court’s action” and (2) the petitioner had filed
for bankruptcy and an automatic stay had issued. DTD
Enterprises, 130 S. Ct. at 8 (emphasis added). Here, in
contrast, the Ninth Circuit has ordered the district
court to enter a preliminary injunction and has adopted
a standard that will control the outcome of the
permanent injunction proceedings on remand.
c. Respondents additionally argue that the Petition
should be denied because a pending state case could
render this matter moot.
(Opp. Br. 12-13.)
Respondents are incorrect. The state case raises
challenges unrelated to the undue burden analysis or
the interpretation of the Arizona law and is therefore
inapplicable to the Ninth Circuit’s interpretation of the
undue burden test. Accordingly, even if the state case
was decided in Respondents’ favor, it would not resolve
the circuit split that the Ninth Circuit’s incorrect

9
application of the undue burden test has created.
Finally, even though the state case is set for oral
argument in December, resolution of that case is not
imminent. Although Respondents moved for summary
judgment, there are disputed issues of material fact
precluding summary judgment. And the decision will
undoubtedly be appealed through two state appellate
courts.
II.

This Case Presents a Substantial Circuit
Conflict Regarding the Proper Application
of the Casey Undue Burden Test that
Warrants Review at This Time.

Although Respondents concede there is a conflict
among the circuits regarding the correct application of
the undue burden test, they argue that “the different
rulings about different medication abortion restrictions
reflect the type of fact-bound decisions that do not
merit the Court’s review.” (Opp. Br. 13.) This
argument fails because neither the Ninth Circuit’s
decision applying a weighing test nor the Fifth and
Sixth Circuits’ decisions that the undue burden test
does not require the States to prove that laws
regulating abortions actually further maternal health
are limited to medication abortion laws. Instead, the
recurring conflict is the differing interpretation of the
undue burden standard as applied to all future
abortion decisions. The different outcome in the Fifth
and Sixth Circuits’ decisions, which uphold the
challenged abortion statutes, and the Ninth Circuit’s
decision, which held Arizona’s law invalid, are due to
divergent applications of the undue burden test, not
the States’ interpretations of their statutes.

10
In support of their argument, Respondents assert
that in Mazurek v. Armstrong, 520 U.S. 968 (1997), this
Court granted the petition for certiorari at an
interlocutory stage because other States in the circuit
had laws on the same subject. (Opp. Br. 14.) Review is
even more appropriate here. Unlike Mazurek, where
only States with similar physician-only statutes were
affected; here, the Ninth Circuit’s improper application
of the undue burden test will control all future
challenges to abortion regulations in the Ninth Circuit
and will factor into future abortion cases throughout
the nation. This national impact is already evident.
Not only did the Ninth Circuit explicitly state it was
rejecting the Fifth and Sixth Circuits’ applications of
the undue burden test (Pet. App. 18-19), several lower
courts have recognized the conflict concerning the
application of the undue burden test. See Whole
Woman’s Health v. Lakey, 769 F.3d 285, 297 (5th Cir.
2014) vacated in part, No. 14A365, 2014 WL 5148719
(U.S. Oct. 14, 2014); Planned Parenthood Se., Inc. v.
Strange, No. 2:13CV405-MHT, 2014 WL 3809403, at *8
(M.D. Ala. Aug. 4, 2014), as corrected (Oct. 24, 2014),
supplemented, No. 2:13CV405-MHT, 2014 WL 5339294
(M.D. Ala. Oct. 20, 2014) and amended, No. 2:13CV405MHT, 2014 WL 5426891 (M.D. Ala. Oct. 24, 2014);
Burdick, 2014 WL 5450069 at *19. Thus, Respondents
incorrectly argue that the conflict is limited.
Respondents’ assertions that based on the facts of
the cases, there are no conflicts between the Ninth
Circuit’s opinion and the Fifth Circuit’s decision in
Abbott and the Sixth Circuit’s decision in DeWine are
equally incorrect. (Opp. Br. 13.) Any purported
distinctions in the statutes in those cases and the
Arizona law do not eliminate the need for this Court to

11
resolve the differing interpretations of the undue
burden test by the Ninth Circuit and the Fifth and
Sixth Circuits. Respondents’ suggestion that this
Court should “await a petition after the facts have been
developed at a full trial on the merits” (Opp. Br. 19),
would serve no purpose but to widen the circuit split.
See Strange, No. 2:13CV405-MHT, 2014 WL 3809403,
at *8.
III.

Respondents Have Not Shown That the
Ninth Circuit’s Newly Adopted Weighing
Test Is Consistent with This Court’s
Precedent.

Respondents assert that the Court should deny the
Petition because the Ninth Circuit properly followed
Casey and Gonzales v. Carhart, 550 U.S. 124 (2007).
(Opp. Br. 21.) In making this argument, Respondents
are necessarily asserting that the Fifth and Sixth
Circuits failed to follow this Court’s precedent in Abbott
and DeWine. Even if Respondents are correct, the
Court should grant review to provide guidance
concerning the appropriate standard. See Parker v.
Ellis, 362 U.S. 574, 576 (1960) (noting that “a denial of
a petition for certiorari without more has no
significance as a ruling”), overruled in part on other
grounds by, 391 U.S. 234 (1968).
In arguing that this Court has required the State to
prove that an abortion regulation actually furthers the
State’s purported interest, Respondents do not cite any
precedent holding that the State was required to
produce such evidence to overcome a facial challenge.
In Gonzales, the Court held that it would not rely solely
on unsupported legislative findings, but the issue there
was whether the banned partial birth abortion

12
procedure was ever necessary to protect maternal
health. 550 U.S. at 165. The Court concluded that
because there was medical uncertainty as to that issue,
the ban could survive a facial challenge without
precluding a later as-applied challenge. Id. at 166-67.
But unlike the Gonzales holding, the Ninth Circuit held
that the Arizona law was facially invalid regardless of
whether banning medication abortions in the eighth or
ninth week of pregnancy was ever necessary to
preserve maternal health. Gonzales does not support
the Ninth Circuit’s decision below.
CONCLUSION
This Court should grant the Petition.
Respectfully submitted,
Thomas C. Horne
Attorney General of Arizona
Robert L. Ellman
Solicitor General
Counsel of Record
Michael Tryon
Senior Litigation Counsel
Kevin D. Ray
Chief Counsel, Education
and Health Section
Aubrey Joy Corcoran
Assistant Attorney General
1275 West Washington Street
Phoenix, Arizona 85007-2926
(602) 542-3333
Robert.Ellman@azag.gov
Counsel for Petitioner