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Court losses piling up for anti-abortion legislation, cost state millions

The state of Arizona has been ordered to pay roughly $2.2 million in legal fees in the past eight years to organizations that challenge restrictive abortion laws adopted by the Republican-controlled state Legislature.

Some of those court orders are more than a decade in the making, like a challenge to a 1999 law with sweeping regulations of abortion providers that was finally settled in 2010, to a more recent case dealing with questionable medical advice the state required physicians to give to patients seeking medication abortions, for which a U.S. District Court judge ruled in August the state must cough up more than $600,000 in attorneys’ fees.

Just this week, the state and Planned Parenthood of Arizona settled the case for a sum of $550,000 in attorney fees.

Those court ordered payments, the result of five cases the state has either lost, settled or been nullified by legislative repeal, don’t include the costs to the Attorney General’s Office, which spent more than 3,300 hours and an estimated $173,500 defending the state in four such cases, according to an analysis of expense records and time sheets provided by the attorney general.

All told, that’s roughly $2.32 million spent defending laws that legislators were warned may not pass muster in court.

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  • Tucson Women’s Clinic v. Eden
  • Arizona Coalition Against Domestic Violence v. Arizona Department of Revenue
  • Isaacson v. Horne
Lawmakers approved HB2706 in 1999, and the lawsuit stemming from it would span for more than a decade. Known as a TRAP bill, or “targeted regulation of abortion providers,” the Center for Reproductive Rights filed a complaint on behalf of several Arizona physicians. The law was ultimately enjoined by the 9th U.S. Circuit Court of Appeals in 2004. The state then negotiated with plaintiffs to reach a settlement that was ultimately finalized in April 2010. The Center for Arizona Policy notes on its bill tracker that the law was overturned in court. ATTORNEY FEES: $389,000
In 2011, lawmakers approved a bill sponsored by then-Rep. Debbie Lesko, R-Peoria, that sought to prevent Arizona donors from receiving tax credits if they make financial contributions to abortion providers. Challengers never objected to that part of the law. However, the Arizona Coalition Against Domestic Violence took issue with part of the law that banned even organizations that “promote” abortion or refer clients to abortion providers from being eligible for the state’s list of tax credit-eligible groups. The coalition, along with the American Civil Liberties Union of Arizona, blocked the law in court. Lesko sponsored a different bill in 2012 that omitted the problematic referral language. ATTORNEY FEES: $56,711.15
The Center for Reproductive Rights took the lead in this case challenging a 2012 law, sponsored by then-Rep. Kimberly Yee, R-Phoenix, which sought to place a 20-week ban on abortions on behalf of several Arizona physicians. The 20-week ban, one of several policies in Yee’s bill, was ultimately overturned in court. ATTORNEY FEES: $388,400.00 CIVIL DIVISION EXPENSES: $6,117.09 SOLICITOR GENERAL’S OFFICE EXPENSES: $6,125.82 HOURS / SALARY ESTIMATE: 65.8 / $2,282.20

That’s on Republican legislators, who either don’t accept that they can’t regulate abortion to the degree they seek, or worse, said Jodi Liggett, vice president of public affairs with Planned Parenthood of Arizona.

“The less charitable view is that they understand perfectly that these are unconstitutional bills, they’re being advised that, and candidly, it’s a form of harassment,” Liggett said. “To make us go down there, spend money on lobbyists trying to stop things and then spend money on attorneys trying to stop them in court. So I think there’s a bit of burnishing their cred with the Center for Arizona Policy, or just as ‘pro-life’ legislators.”

The Center for Arizona Policy is often blamed by anti-abortion foes as the impetus for legislation targeting abortion access in the state. The center has made a name for itself as a conservative, evangelical policy group in Arizona by supporting anti-abortion candidates in elections and pushing Republican lawmakers to sponsor and vote for measures to restrict access to abortions in the state.

Cathi Herrod

Cathi Herrod

Center for Arizona Policy’s website boasts of its many legislative achievements, while also hinting at the repercussions of their efforts – an asterisk next to bills the organization helped pass that were later struck down in court. When Arizona loses those legal battles, taxpayers foot the bill for causes championed by the Center for Arizona Policy and its influential president, Cathi Herrod.

Out of six lawsuits brought against the state over Center for Arizona Policy-backed bills since 2009, the state has successfully defended two laws: A 2009 law requiring minors to get notarized parental consent for an abortion, and a 2011 law banning abortions sought for race-based purposes.

Herrod said 2009 is the place to start. That’s when Democratic Gov. Janet Napolitano was replaced by Republican Gov. Jan Brewer, a conservative friendlier to Herrod’s cause and thus when Herrod began tracking policies her organization has helped shepherd through the Legislature.

Herrod said the number of policies still in effect today far outweigh the losses in court. Thirty-seven “pro-life” policies are still on the books, ranging from a 2011 policy requiring women to receive an ultrasound before an abortion; a 2012 law requiring schools to push childbirth and adoption as preferred alternatives to abortion; and a 2016 policy prohibiting the research, experimentation or trafficking of fetuses.

“You have to first look at what is in effect. And then you need to look at what the court cases were,” Herrod said. “And the question is, why does the abortion industry oppose women being given information about abortion pill reversal? Why does the abortion industry file lawsuits on some of these bills?”

Abortion providers like Planned Parenthood, and Democratic legislators who’ve argued and voted against Center for Arizona Policy-supported bills, say lawsuits are filed because the policies are unconstitutional and harmful. Planned Parenthood and other organizations challenging the Legislature have indeed won more cases than they’ve lost since 2009, leaving Liggett of Planned Parenthood to question Herrod’s motives, and the motives of lawmakers who vote in Herrod’s favor.

Jodi Liggett

Jodi Liggett

“Are we really trying to create good public policy? Is this really about – in particular, is this really about women’s health and safety?” Liggett said. “Or is this just about making it as hard as possible (to have an abortion), which is actually harmful to women’s health and safety?”

For example, a 2012 bill designed to block clinics that provide abortions from receiving federal funds through Medicaid was flagged by House staff as problematic. House Rules Attorney Tim Fleming told the House Rules Committee that the measure, sponsored by then-GOP Rep. Justin Olson, may conflict with aspects of federal law.

Fleming told legislators he found similar measures, approved by other states that were then being litigated.

“Each of the statutes in each of those states were at least preliminarily enjoined,” he said, meaning a judge thought there was a good chance challenges to those laws would succeed. Fleming added that those cases had not yet been decided at the time.

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  • Planned Parenthood v. Betlach
  • Planned Parenthood v. Humble
  • Planned Parenthood v. Brnovich
In 2012, Rep. Justin Olsen sought to block Planned Parenthood and other abortion providers from receiving federal funds through Medicaid. HB2800 specifically banned organizations that provide abortions from being considered “qualified providers” for purposes of providing Medicaid funds for family planning services. The law was overturned in court, as the court ruled federal law dictates Medicaid enrollees can seek services from any qualified provider and that Planned Parenthood certainly qualifies as such. ATTORNEY FEES: $295,500.00 CIVIL DIVISION EXPENSES: $455.00 SOLICITOR GENERAL’S OFFICE EXPENSES: $480.44 HOURS / SALARY ESTIMATE: 46.10 / $1,648.10
A flurry of legislative activity in 2016 settled this case, which was spurred by Yee’s HB2036 – the same bill with the overturned 20-week abortion ban. In this case, Planned Parenthood challenged a policy requiring doctors to administer medication abortions using only the steps approved on U.S. Food and Drug Administration labels. A federal lawsuit blocked the policy in the 9th Circuit, while a separate lawsuit was filed against the policy in state court. While the law was hung up in court, Yee sought a legislative fix in 2016 that was spoiled when the FDA updated the label for medication abortion pills. Legislators repealed the law entirely later that year, rendering the cases moot, but leaving the state on the hook for legal fees. ATTORNEY FEES: $467,099* CIVIL DIVISION EXPENSES: $4,937.50 HOURS / SALARY ESTIMATE: 2,493.20 / $88,150.40* *Combined total from cases in state and federal courts.
Despite pleas and warning from obstetricians and gynecologists, Republican lawmakers still passed SB1318 in 2015. The bill required doctors to tell their patients that there was a chance medication abortions could be reversed in between doses. Women’s health providers said there was no scientific evidence to support that claim. Still, the bill became law, though lawmakers ultimately repealed it in 2016 when faced with a likely court loss. That still left state taxpayers on the hook for attorney’s fees. ATTORNEY FEES: $550,000* CIVIL DIVISION EXPENSES: $36,278.70 SALARIES BY THE HOUR: $25,958.60 *The state settled for less than the $612,218.78 it was ordered to pay.

Nonetheless, HB2800 was approved and a lawsuit was filed by Planned Parenthood. The law was overturned. And a judge ordered $388,400 be paid in attorneys’ fees, with the cost split evenly between the state and Maricopa County.

Liggett said it’s incumbent on legislators, particularly Republicans who promote themselves as fiscally conservative, to consider those costs when there are warnings the bills legislators sponsor and debate will have trouble in court. If not, they’re letting the Center for Arizona Policy use the state as a means to litigate their anti-abortion cause.

“A Republican legislator a long time ago used to talk about OPM – other people’s money. So if you can do this all day long, year in and year out, and spend taxpayer money – let’s remember, we’re talking about litigation costs. There’s also just cost of running legislation. There’s leg council, there’s staff. It’s not free. And when you have bills that you know early on that are not viable, that seems to me to be irresponsible,” Liggett said.

Among Arizona Democrats, Center for Arizona Policy takes a lot of the blame for pushing these bills and essentially having the state pay the cost of litigating abortion issues. But Senate Minority Leader Katie Hobbs said the buck stops with legislators, not Herrod.

Sen. Katie Hobbs (D-Phoenix)

Sen. Katie Hobbs (D-Phoenix)

“Herrod has a lot of clout, and she has a way to get lawmakers to do what she wants. But nobody has to do what she tells them to do,” said Hobbs, D-Phoenix.

Herrod said the Center for Arizona Policy, just like any other lobbying group, is well within the norm by pushing policy it favors at the Legislature. Contrary to the warning of other lobbyists, and at times the Legislature’s own attorneys, Herrod said her organization doesn’t push legislation if they don’t think it’s constitutional and believe it will be upheld in court.

Herrod pointed to HB2036, sponsored by then Rep. Kimberly Yee in 2012, which included a ban on abortions after 20 weeks. That policy was overturned in the 9th U.S. Circuit Court of Appeals. But at the time Yee, a Phoenix Republican, sponsored the bill and the center helped guide it through the Legislature, Herrod said there were “maybe nine or 10 states” that had a 20-week ban on the books.

“So we approached this certainly with what we believe – what problems are being solved by a pro-life bill, what the needs are, what we believe will be upheld in court, and what we believe is constitutional,” she said.

In other instances, court battles are simply part of the legislative process, Herrod said. The parental consent law, passed in 2009, “took, I think, three different tries, if not four tries, to get the parental consent requirement in Arizona upheld and enforced in law,” she said.

As for the losses in court, Center for Arizona Policy’s wins make the cost of litigation worth it, Herrod said.

“We would say that our batting average is something like 37 to 4. And I’ll take that average any day,” she said.

Sen. Debbie Lesko (R-Peoria)

Sen. Debbie Lesko (R-Peoria)

Republican legislators who back Herrod’s bills often feel the same way. None of the sponsors of bills that led to legal losses for the state returned calls for comment. But Sen. Debbie Lesko, who as a representative sponsored the bill to block abortion providers from tax credit benefits in 2011, had her reason for pushing the bill cited in an order preliminarily blocking the law.

“I believe God has put me here for a reason,” Lesko, a Peoria Republican, had said during a committee hearing. “And I often ask Him, ‘What is that reason?’ and I ask for a purpose. (I ask Him to) ‘Please guide me and tell me what you want me to do.’ And I truly believe that one of the purposes that I have been put in this position is to protect the lives of innocent children.”

One comment

  1. What is wrong with all y’all? You know where the lines are long drawn. Tell your legislators to stop wasting your tax dollars or you will vote them out! Think of the books that money could have bought for schoolchildren, the bridges that money could have repaired, or the rebates AZ taxpayers could have received. Your legislators need to know that you don’t want them fighting for nonsense that wastes your money!

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