FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL A. ISAACSON, M.D., on No. 23-15234
behalf of himself and his patients;
ERIC M. REUSS, M.D., M.P.H, on D.C. No. 2:21-cv-
behalf of himself and his patients; 01417-DLR
NATIONAL COUNCIL OF JEWISH
WOMEN, INC., Arizona Section;
ARIZONA NATIONAL OPINION
ORGANIZATION FOR WOMEN;
ARIZONA MEDICAL
ASSOCIATION, on behalf of itself,
its members and its members patients,
Plaintiffs-Appellants,
v.
KRISTIN K. MAYES, in her official
capacity as Arizona Attorney General;
ARIZONA DEPARTMENT OF
HEALTH SERVICES; JENNIFER
CUNICO, in her official capacity as
Interim Director of the Arizona
Department of Health Services;
ARIZONA MEDICAL BOARD;
PATRICIA MCSORLEY, Executive
Director of the Arizona Medical
Board, in her official capacity,
2 ISAACSON V. MAYES
Defendants-Appellees,
WARREN PETERSEN; BEN TOMA,
Intervenors,
and
MICHAEL B. WHITING, County
Attorney for Apache County, in his
official capacity; BRIAN M.
MCINTYRE, County Attorney for
Cochise County, in his official
capacity; WILLIAM PATRICK
RING, County Attorney for Coconino
County, in his official capacity;
BRADLEY D. BEAUCHAMP,
County Attorney for Gila County, in
his official capacity; SCOTT
BENNETT, County Attorney for
Graham County, in his official
capacity; JEREMY FORD, County
Attorney for Greenlee County, in his
official capacity; TONY ROGERS,
County Attorney for La Paz County, in
his official capacity; ALLISTER
ADEL, County Attorney for Maricopa
County, in her official capacity;
MATTHEW SMITH, County
Attorney for Mohave County, in his
official capacity; BRAD CARLYON,
County Attorney for Navajo County,
ISAACSON V. MAYES 3
in his official capacity; LAURA
CONOVER, County Attorney for
Pima County, in her official capacity;
KENT VOLKMER, County Attorney
for Pinal County, in his official
capacity; GEORGE SILVA, County
Attorney for Santa Cruz County, in his
official capacity; SHEILA POLK,
County Attorney for Yavapai County,
in her official capacity; JON
RODNEY SMITH, County Attorney
for Yuma County, in his official
capacity,
Defendants.
Appeal from the United States District court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Argued and Submitted September 11, 2023
Phoenix, Arizona
Filed October 30, 2023
Before: Ronald M. Gould, Andrew D. Hurwitz, and
Roopali H. Desai, Circuit Judges.
Opinion by Judge Gould
4 ISAACSON V. MAYES
SUMMARY *
Abortion/Standing
The panel reversed the district court’s denial, for lack of
standing, of plaintiffs’ motion for a preliminary injunction in
an action alleging that an Arizona law criminalizing the
performance of certain abortions is unconstitutionally vague,
and remanded.
Arizona’s Reason Regulations criminalize the
performance of abortions sought solely because of genetic
abnormalities in the fetus or embryo. Plaintiffs, including
individual physicians based in Arizona, allege they are over-
complying with the laws because it is unclear what conduct
falls within the laws’ grasp. Following a remand by the
Supreme Court, the district court denied plaintiffs’ motion
for a preliminary injunction, finding that they lacked
standing in light of Dobbs v. Jackson Women’s Health
Organization, 142 S. Ct. 2228 (2022), which overruled Roe
v. Wade and eliminated the constitutional right to an
abortion.
The panel held that the physician plaintiffs had
demonstrated both actual and imminent injuries sufficient
for standing.
Plaintiffs suffered an actual injury—economic losses—
because they lost money by complying with the laws, which
forbade them from providing medical services they would
otherwise provide, and these economic losses were fairly
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ISAACSON V. MAYES 5
traceable to the statute. A favorable decision would relieve
plaintiffs of compliance with the laws and restore the
revenue generated by the prohibited procedures.
Plaintiffs sufficiently alleged two imminent future
injuries that affected interests protected by the Fifth and
Fourteenth Amendments: (1) a liberty interest that was
imperiled because violating the statute could result in
imprisonment; and (2) a property interest that was threatened
because a statutory violation could result in revocation of
plaintiffs’ licenses, loss of revenue, and monetary
damages. Plaintiffs adequately demonstrated that their
conduct was proscribed by statute, that there was a credible
threat of prosecution given that that at least one county
attorney intended to enforce restrictive abortion laws and
that there was a credible threat of civil enforcement. Finally,
plaintiffs satisfied the causation and redressability
requirements with respect to their imminent future injury.
The panel expressed no opinion on the merits of
plaintiffs’ claims.
COUNSEL
Jessica Sklarsky (argued), Gail M. Deady, and Catherine
Coquillette, Center for Reproductive Rights, New York,
New York; Jen Samantha D. Rasay, Center for Reproductive
Rights, Washington, D.C.; Jared G. Keenan, American Civil
Liberties Union of Arizona, Phoenix, Arizona; Beth
Wilkinson, Anastasia Pastan, Anthony P. Ferrara, and
Elizabeth Keys, Wilkinson Stekloff LLP, Washington, D.C.;
Ralia Polechronis and Justin Mungai, Wilkinson Stekloff
LLP, New York, New York; for Plaintiff-Appellants Paul A.
Isaacson, M.D., National Council of Jewish Women
6 ISAACSON V. MAYES
(Arizona Section), Inc., and Arizona National Organization
for Women.
Denise M. Harle (argued), Alliance Defending Freedom,
Lawrenceville, Georgia; Kevin H. Theriot, Alliance
Defending Freedom, Scottsdale, Arizona; Erin M. Hawley,
Alliance Defending Freedom, Washington, D.C.; for
Intervenors.
Alexa Kolbi-Molinas, Rebecca Chan, Ryan Mendías, and
Lindsey Kaley, American Civil Liberties Union, New York,
New York; Jared G. Keenan, American Civil Liberties
Union of Arizona, Phoenix, Arizona; Anthony P. Ferrara,
Wilkinson Stekloff LLP, Washington, D.C.; for Plaintiffs-
Appellants Eric M. Reuss, M.D., M.P.H., and Arizona
Medical Association.
Hayleigh S. Crawford and Luci D. Davis, Attorneys; Nathan
T. Arrowsmith, Joshua Bendor, and Alexander Samuels,
Assistant Attorneys General; Arizona Attorney General’s
Office, Phoenix, Arizona; for Defendant-Appellee Kristin K.
Mayes.
Aubrey J. Corcoran and Kevin Ray, Assistant Attorneys
General, Arizona Attorney General’s Office, Phoenix,
Arizona; for Defendant-Appellees Arizona Department of
Health and Human Services and Jennifer Cunico, Interim
Director of the Arizona Department of Health Services.
Marc H. Harris, Assistant Attorney General, Arizona
Attorney General’s Office, Phoenix, Arizona, for
Defendant-Appellees Arizona Medical Board et. al.
Amanda S. Berman, April N. Ross, Mara Lieber, Elizabeth
C. Riegel, Kaylah Alexander, and Halie E. Kaplan, Crowell
& Moring LLP, Washington, D.C, for Amici Curiae
Constitutional and Federal Courts Scholars.
ISAACSON V. MAYES 7
OPINION
GOULD, Circuit Judge:
This suit by Arizona physicians, medical associations,
and advocacy groups claims that an Arizona law
criminalizing the performance of certain abortions is
unconstitutionally vague. The district court denied a
preliminary injunction, finding that Plaintiffs lacked
standing. We have jurisdiction under 28 U.S.C.
§ 1292(a)(1), and we reverse and remand.
I. Factual and Procedural Background
A. The Parties
Plaintiffs are individual physicians based in Arizona,
joined by several Arizona medical and advocacy groups.
The named Defendants are Arizona Attorney General
Kristin Mayes, all Arizona County Attorneys, and various
state enforcement agencies. The Attorney General declined
to defend this lawsuit, and the district court allowed Warren
Petersen, President of the Arizona Senate, and Ben Toma,
Speaker of the Arizona House of Representatives, to
intervene.
B. The Arizona Law
In 2021, Arizona enacted new abortion laws, the relevant
sections of which the parties refer to as the “Reason
Regulations.” S.B. 1457, 55th Leg., 1st Reg. Sess. (Ariz.
2021). The Reason Regulations criminalize the performance
of abortions sought solely because of genetic abnormalities
in the fetus or embryo. The statute creates two different
felonies: (1) any person who “knowingly . . . [s]olicits or
accepts monies to finance . . . an abortion because of a
8 ISAACSON V. MAYES
genetic abnormality” of a fetus or embryo is guilty of a class
3 felony punishable by two to 8.75 years imprisonment,
Ariz. Rev. Stat. (“A.R.S.”) §§ 13-3603.02(B)(2), 13-702(D);
and, (2) any person who “[p]erforms an abortion knowing
that the abortion is sought solely because of a genetic
abnormality” of the fetus or embryo is guilty of a class 6
felony punishable by four months to two years
imprisonment, A.R.S. §§ 13-3603.02(A)(2), 13-702(D). 1
The Reason Regulations prohibit only the performance
of these abortions and do not impose criminal penalties on
women who have them. The Arizona Medical Board and
Department of Health Services may also impose various
penalties, including monetary fines, suspension or
revocation of licenses, or public censure, for violation of the
Reason Regulations. A.R.S. §§ 32-1401(27); 32-
1403(A)(2), (A)(5); 32-1403.01(A); 32-1451.
The Reason Regulations also provide a private right of
action for the father of the fetus or embryo aborted in a
prohibited procedure. The father, if married to the pregnant
woman, may sue the performing physician to obtain
“appropriate relief.” A.R.S. § 13-3603.02(D).
C. The Physician Plaintiffs
The physician Plaintiffs are Arizona obstetrician-
gynecologists. They provide sophisticated testing and fetal
screening for genetic conditions. The physicians discuss the
results of these tests with their patients and present options,
including abortion. Before the enactment of the Reason
1
The Regulations provide exceptions for a “lethal fetal condition” and a
“medical emergency.” A.R.S. §§ 36-2158(G)(2), 13-3603.02(A). The
statute of limitations for each crime is seven years. A.R.S. § 13-
107(B)(1).
ISAACSON V. MAYES 9
Regulations, Plaintiffs regularly performed abortions in
cases where fetuses had confirmed genetic abnormalities.
Since the law was enacted, Plaintiffs have “significantly
curtailed their medical practices.” Plaintiffs no longer
provide abortions to “patients with likely or confirmed fetal
conditions,” even though these patients previously made up
a significant part of Plaintiffs’ businesses.
Although the Reason Regulations do not outlaw all
abortions involving genetic abnormalities, Plaintiffs allege
that they are “over-complying” with the law and staying
away from those abortions entirely, because it is unclear
what conduct falls within the law’s grasp. Plaintiffs allege,
for example, that it is unclear what fetal conditions may
constitute a “genetic abnormality,” how physicians should
assess the role a genetic abnormality plays in a patient’s
subjective decision to get an abortion, what level of
knowledge a physician must have about a patient’s
subjective motivations, and what circumstantial evidence
might be used against physicians to establish that
knowledge.
D. Procedural History
This action was originally filed in September 2021. The
district court preliminarily enjoined the state Defendants
from enforcing the Reason Regulations, holding that they
were “likely . . . void for vagueness and impose[d] an undue
burden on the rights of women to terminate pre-viability
pregnancies.” Defendants 2 sought a partial stay of the
preliminary injunction, which we denied (Case No. 21-
16645, ECF No. 35). Defendants then sought a stay pending
2
When appeal was first taken, Mark Brnovich was the Arizona Attorney
General, and he defended the case.
10 ISAACSON V. MAYES
appeal from the Supreme Court. On June 30, 2022, the
United States Supreme Court converted the stay application
into a petition for a writ of certiorari, granted review, and
vacated and remanded the case for further consideration in
light of Dobbs v. Jackson Women’s Health Organization,
142 S. Ct. 2228 (2022), which overruled Roe v. Wade and
eliminated the constitutional right to an abortion, Brnovich
v. Isaacson, 142 S. Ct. 2893 (2022).
After remand, Plaintiffs renewed their motion for a
preliminary injunction, focusing solely on their vagueness
claim. The district court denied the motion, holding that
although it had previously ruled in favor of Plaintiffs on
vagueness grounds, Plaintiffs no longer had standing for pre-
enforcement review in light of Dobbs. The Plaintiffs timely
appealed.
II. Standard of Review
“We review de novo issues of law underlying the
preliminary injunction, including questions of jurisdiction
over Plaintiff’s claims.” LA All. for Hum. Rts. v. County of
Los Angeles, 14 F.4th 947, 956 (9th Cir. 2021). We “review
de novo questions of standing.” Tingley v. Ferguson, 47
F.4th 1055, 1066 (9th Cir. 2022).
III. Discussion
“To establish Article III standing, a plaintiff must show
(1) an ‘injury in fact,’ (2) a sufficient ‘causal connection
between the injury and the conduct complained of,’ and (3)
a ‘likel[ihood]’ that the injury ‘will be redressed by a
favorable decision.’” Susan B. Anthony List v. Driehaus,
573 U.S. 149, 157-58 (2014) (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560-61 (1992)). The primary dispute
ISAACSON V. MAYES 11
here is whether there is an injury in fact. We hold that
Plaintiffs have demonstrated an injury sufficient for
standing. 3
A. Injury in Fact
“An injury sufficient to satisfy Article III must be
concrete and particularized and actual or imminent, not
conjectural or hypothetical.” Driehaus, 573 U.S. at 158
(cleaned up). The purpose of the injury requirement is to
ensure that a plaintiff has a “personal stake in the outcome
of the controversy.” Warth v. Seldin, 422 U.S. 490, 498
(1975) (internal quotation marks omitted).
Plaintiffs allege both actual injury and imminent future
injury. They assert that the statute’s vagueness has forced
them to “over-compl[y],” causing them to cease providing
abortion care to “patients with suspected or known fetal
diagnoses—even if that care could arguably fall outside of
the Reason [Regulations’] grasp,” rather than risk
prosecution or penalties. Plaintiffs allege that their coerced
over-compliance has already caused them economic injury.
Plaintiffs also allege future injuries “associated with the
threat of prosecution under the Reason [Regulations] were
they to attempt to decipher and offer as much care as is
legally permissible under the [Regulations], which is their
goal.”
3
We base our decision only on the allegations of the individual physician
plaintiffs. In this section, the term “Plaintiffs” refers only to the
physician plaintiffs. We do not decide whether the associations have
standing. See Brown v. City of Los Angeles, 521 F.3d 1238, 1240 n.1
(9th Cir. 2008) (“[T]he presence in a suit of even one party with standing
suffices to make a claim justiciable.”).
12 ISAACSON V. MAYES
1. Actual Injury
The district court did not interpret Plaintiffs’ complaint
as alleging an actual injury. The closest the district court
came to recognizing Plaintiffs’ economic interest in
performing abortions was noting that any such interest was
outweighed by State interests, as “there is no right to practice
medicine which is not subordinate to the police power of the
states.” Isaacson v. Mayes, No. CV-21-01417-PHX-DLR,
2023 WL 315259, at *5 (D. Ariz. Jan. 19, 2023) (quoting
United States v. Farhane, 634 F.3d 127, 137 (2d Cir. 2011)).
For the following reasons, we hold that Plaintiffs have
sufficiently alleged an actual injury.
“For standing purposes, a loss of even a small amount of
money is ordinarily an ‘injury.’” Czyzewski v. Jevic Holding
Corp., 580 U.S. 451, 464 (2017); see also Nat’l Audubon
Soc’y v. Davis, 307 F.3d 835, 855-56 (9th Cir. 2002)
(“Economic injury is clearly a sufficient basis for standing.”
(quoting San Diego Cnty. Gun Rts. Comm. v. Reno, 98 F.3d
1121, 1130 (9th Cir. 1996), abrogated in part on other
grounds as recognized by Teter v. Lopez, 76 F.4th 938, 943-
45 (9th Cir. 2023))). We held in National Audubon Society
that the plaintiff-fur-trappers’ “economic injury [was]
directly traceable to the fact that [the challenged law]
explicitly forbids the trapping they would otherwise do.”
307 F.3d at 856. In other words, because the plaintiffs lost
money by complying with the law, they had suffered an
actual injury.
Contrary to the holding of the district court, standing
does not also require that the economic injury be sustained
while engaging in an activity separately protected by the
Constitution, such as First Amendment protected speech.
Rather, our cases make clear that an Article III injury in fact
ISAACSON V. MAYES 13
can arise when plaintiffs are simply prevented from
conducting normal business activities. In Montana Shooting
Sports Association v. Holder, we concluded that the
plaintiffs had an economic injury sufficient for standing
where federal firearms regulations prevented a business
from manufacturing and selling unlicensed firearms. 727
F.3d 975, 979-80 (9th Cir. 2013). In National Audubon
Society, the underlying conduct affected by the law was fur
trapping. See 307 F.3d at 842. In Association of Public
Agency Customers v. Bonneville Power Administration, we
predicated standing on a power-generator’s contractual right
to charge higher rates for electricity. 733 F.3d 939 (9th Cir.
2013). None of the underlying business activities in these
cases—selling firearms, fur-trapping, power-generation—
were themselves constitutionally protected, but we held that
there was standing based on an economic injury.
We conclude that there is no reason to treat the business
activity in this case—providing medical services—
differently. Plaintiffs allege that they are losing money
because the Reason Regulations forbid them from providing
medical services they would otherwise provide. 4
That Plaintiffs’ services concern abortion is irrelevant to
the standing analysis. Plaintiffs’ standing is based on their
economic interest in providing medical services. That their
services include abortion does not alter the fact that Plaintiffs
make money providing these services and have lost money
4
As discussed in greater detail below, Plaintiffs’ economic losses are not
limited to their over-compliance but also proceed from simply
complying with the law. Plaintiffs previously gained revenue from
abortions openly sought because of genetic abnormalities. The Reason
Regulations eliminated that source of revenue.
14 ISAACSON V. MAYES
because the Reason Regulations restrict what services they
can provide.
The State’s police power and interest in regulating the
practice of medicine, relied upon by the district court, are
also irrelevant. Plaintiffs do not dispute Arizona’s authority
to regulate their industry generally, nor do they claim that
the Reason Regulations were an improper exercise of that
authority. Any weighing of the State’s interest against the
interest asserted by Plaintiffs should be undertaken upon
consideration of the merits, not to determine an injury in fact.
In summary, Plaintiffs’ alleged economic losses—
notwithstanding their relationship to abortion—qualify as an
actual injury in fact sufficient for Article III standing.
2. Causation
We next consider Lujan’s causation prong, which
requires that Plaintiffs’ injury be “fairly traceable” to the
Reason Regulations. 5 504 U.S. at 560. Intervenors contend
that economic losses from Plaintiffs’ over-compliance with
the Regulations are not fairly traceable to the Regulations
themselves, because Plaintiffs’ over-compliance is a result
of misreading the law. Intervenors’ argument boils down to
the idea that the Regulations are not vague and that Plaintiffs
do not need to over-comply so long as they avoid the
proscribed conduct. This argument of Intervenors, however,
goes to the merits, not to standing, because it is settled that
standing “in no way depends on the merits.” Warth, 422
U.S. at 500. In conducting a standing analysis, courts are to
take all material allegations as true. Id. at 501. This includes
an allegation that a law is unconstitutionally vague. Arizona
5
The district court did not consider this prong because it found Plaintiffs
had not alleged an injury in fact. Isaacson, 2023 WL 315259, at *5–7.
ISAACSON V. MAYES 15
v. Yellen, 34 F.4th 841, 849 (9th Cir. 2022) (“Viewing the
[statute] through [the plaintiff’s] eyes, we must accept—for
standing purposes—its allegations that the condition is
unconstitutionally ambiguous and coercive.”). If the Reason
Regulations are indeed vague, then cautious over-
compliance is a logical result fairly traceable to the statute.
Moreover, causation is evident even without considering
Plaintiffs’ allegations of vagueness or over-compliance.
Plaintiffs previously had generated revenue from abortions
openly sought because of genetic abnormalities. The Reason
Regulations now prohibit those types of abortions. Even if
the Regulations were crystal clear, Plaintiffs would still lose
revenue from the abortions that they can no longer provide.
The economic losses Plaintiffs have alleged that they
incurred in their attempts to comply with the Reason
Regulations are fairly traceable to the statute, and the
causation prong of Lujan is met. 6
B. Imminent Injury
In addition to actual economic injury, Plaintiffs allege
imminent future injuries that serve as a basis for standing.
When a claimed injury has not yet occurred, a plaintiff
must show that the potential harm is sufficiently imminent
to qualify as an injury in fact. See Driehaus, 573 U.S. at 159;
see also San Diego Gun, 98 F.3d at 1126. A plaintiff has
standing if: “(1) [the plaintiff] ha[s] alleged ‘an intention to
engage in a course of conduct arguably affected with a
constitutional interest;’ (2) but the conduct is ‘proscribed by
a statute;’ and (3) ‘there exists a credible threat of
6
Lujan’s third prong, redressability, is also satisfied. A favorable
decision would relieve Plaintiffs of compliance with the law and restore
the revenue generated by the prohibited procedures.
16 ISAACSON V. MAYES
prosecution thereunder.’” Driehaus, 573 U.S. at 159
(quoting Babbitt v. Farm Workers, 442 U.S. 289, 298
(1979)).
1. Intention to Engage in Conduct Affected with a
Constitutional Interest
The district court concluded that Plaintiffs did not satisfy
the first prong of Driehaus because their conduct—
performing abortions—was no longer “affected with a
constitutional interest” after Dobbs. Isaacson, 2023 WL
315259, at *5. Citing an Eleventh Circuit opinion, the
district court held that pre-enforcement procedural due
process claims are cognizable only if “the litigant is chilled
from engaging in constitutionally protected activity.” Id. at
*4 (quoting Bankshot Billiards, Inc. v. City of Ocala, 634
F.3d 1340, 1349 (11th Cir. 2011)). Because “Plaintiffs’
ability to provide [abortion] care without undue state
interference is a battle fought and lost in Dobbs,” the district
court reasoned that the chilling effect of the Reason
Regulations on Plaintiffs’ abortion services did not implicate
a constitutional interest. Id. at *5, *7.
We conclude that Bankshot is not persuasive and hold
that the district court erred by applying it to determine that
there was no standing. Under our Circuit precedent, a
chilling effect is only a cognizable injury in “overbreadth
facial challenges involving protected speech” under the First
Amendment. San Diego Gun, 98 F.3d at 1129 (describing
this context as the only exception to the general rule that
“existence of a ‘chilling effect’ . . . has never been
considered a sufficient basis, in and of itself, for prohibiting
. . . [government] action” (quoting Younger v. Harris, 401
U.S. 37, 51 (1971))).
ISAACSON V. MAYES 17
Plaintiffs need not allege a chilling effect to bring their
vagueness claim, and speech is not the only constitutional
interest on which Article III standing can be based. A void-
for-vagueness challenge is rooted in the Due Process Clause.
And an imminent threat to life, liberty, or property interests
without due process of law, in violation of the Fifth and
Fourteenth Amendments, is a cognizable injury. Vill. of
Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489,
497 (1982) (“A law that does not reach constitutionally
protected conduct . . . may nevertheless be challenged on its
face as unduly vague, in violation of due process.”). The
district court’s suggestion that due process challenges,
including vagueness challenges, cannot be reviewed before
enforcement—because “we do not know if the litigant will
ever be deprived of his liberty without due process”—is also
incorrect. The logic of such a rule would bar all claims based
on the prospect of imminent future injury. We cannot
discern the future and cannot know whether future harm will
actually occur. But we can, and do, try to decide whether the
harm is sufficiently likely so that the litigant need not wait
until the harm occurs.
Plaintiffs here allege two imminent future injuries
affecting interests protected by the Fifth and Fourteenth
Amendments: (1) the Reason Regulations imperil Plaintiffs’
liberty because violating the statute could result in
imprisonment, and (2) the statute threatens their property
because a statutory violation may result in revocation of
Plaintiffs’ licenses, loss of revenue, and monetary damages.
Plaintiffs satisfy the first Driehaus prong’s requirement.
2. Proscribed by Statute
Because Plaintiffs satisfy the first Driehaus prong, we
proceed to the other prongs not considered by the district
18 ISAACSON V. MAYES
court. As to the second prong, Plaintiffs have adequately
demonstrated that their conduct is “proscribed by a statute.”
Plaintiffs declared an intention to perform abortions up to the
legal limits of the Reason Regulations but urge that, because
those limits are unclear, many abortions they would
otherwise perform could be deemed violations of the statute.
Plaintiffs’ vagueness allegations must be taken as true for the
purpose of determining standing and, if those allegations are
true, then Plaintiffs’ conduct may violate the statute.
3. Threat of Prosecution
The final Driehaus prong requires Plaintiffs to show a
“credible threat of prosecution.” 573 U.S. at 159. To
evaluate the threat of prosecution, we consider: (1) whether
the plaintiff has a “concrete plan” to violate the law, (2)
whether the enforcement authorities have “communicated a
specific warning or threat to initiate proceedings,” and (3)
whether there is a “history of past prosecution or
enforcement.” Thomas v. Anchorage Equal Rts. Comm’n,
220 F.3d 1134, 1139 (9th Cir. 2000) (en banc).
Plaintiffs allege a plan to violate the law because they
intend to engage in conduct arguably proscribed by the
Reason Regulations. There is little need to show a “history
of past prosecution or enforcement,” because the
Regulations were only recently enacted and then enjoined
until June 2022. 7 Plaintiffs also allege that they are over-
complying with the law to avoid prosecution. Their choice
to eliminate the threat of enforcement by not doing what they
want to do should not bar their suit. See MedImmune, Inc. v.
7
Standing is evaluated based on the facts at the time of filing. Lujan,
503 U.S. at 569 n.4. This action was filed on June 25, 2022, almost
immediately after the Reason Regulations first became enforceable.
ISAACSON V. MAYES 19
Genentech, Inc., 549 U.S. 118, 129 (2007) (“Given [the]
genuine threat of enforcement, we did not require, as a
prerequisite to testing the validity of the law in a suit for
injunction, that the plaintiff bet the farm, so to speak, by
taking the violative action.”); LSO, Ltd. v. Stroh, 205 F.3d
1146, 1155 (9th Cir. 2000) (“[E]nforcement history alone is
not dispositive. Courts have found standing where no one
had ever been prosecuted under the challenged provision.”
(citing Babbitt, 442 U.S. at 302)).
That leaves us to consider “whether the enforcement
authorities have communicated a specific warning or threat
to initiate proceedings.” Tingley, 47 F.4th at 1067 (cleaned
up) (citation omitted). Our cases have taken a broad view of
this factor as one example of how a litigant might
demonstrate “a plausible and reasonable fear of
prosecution,” Wolfson v. Brammer, 616 F.3d 1045, 1062
(9th Cir. 2010) (emphasis omitted), in contrast to an
“imaginary or wholly speculative” threat, Babbitt, 442 U.S.
at 302.
Although “the mere existence of a proscriptive statute”
is not enough, Thomas, 220 F.3d at 1139, a plaintiff may
reasonably fear prosecution even if enforcement authorities
have not communicated an explicit warning to the plaintiff.
Although a specific threat or warning of prosecution is
relevant, “we have never held that a specific threat is
necessary to demonstrate standing.” Valle del Sol v.
Whiting, 732 F.3d 1006, 1015 n.5 (9th Cir. 2013) (citing Cal.
Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1094 (9th
Cir. 2003)). We applied this reasoning in Tingley. There,
we noted that the relevant authorities “ha[d] not issued a
warning or threat of enforcement [to the plaintiff]” but we
determined that a combination of other circumstances
20 ISAACSON V. MAYES
amounted to a credible threat of enforcement. Tingley, 47
F.4th at 1068.
Intervenors argue that Plaintiffs have not shown a
credible threat because the Arizona Attorney General has
expressly disavowed enforcement of the Reason
Regulations. Intervenors also claim that the Attorney
General “will prevent county attorneys from enforcing the
statute.” Neither of these arguments fatally undermines the
credibility of Plaintiffs’ fear of prosecution.
As Plaintiffs explain, “the Attorney General is only one
of the many enforcers of the Reason Scheme—including the
Arizona Department of Health Services, the Arizona
Medical Boards, and the County Attorneys.” Despite
Intervenors’ assertion that the Attorney General would
“prevent” county attorneys from enforcing the law, the
Attorney General in fact stated that she would “advise [the
county attorneys] that prosecut[ions] [under the
Regulations] . . . would violate the Arizona Constitution.”
See Kris Mayes, 12 Point Plan, https://bit.ly/3DEiEHf
(emphasis added). The Attorney General evidently believes
that she lacks authority to bind county attorneys by her
disavowal of enforcement, and Intervenors cite no statutory
provisions contradicting that assessment.
There is reason to believe that one or more county
attorneys agree that they are not bound by the Attorney
General’s disavowal and will attempt to enforce the Reason
Regulations. The Yavapai County Attorney recently moved
to intervene in a case to support an Arizona law banning
nearly all abortions. Motion to Intervene, Planned
Parenthood Ariz., Inc. v. Mayes, No. CV-23-005-PR (Ariz.
Mar. 2, 2023). His stated reason for intervention was to “fill
the void created by Attorney General Mayes’ change of
ISAACSON V. MAYES 21
position [to one of nonenforcement]” and advocate for “[a]
lifting of the injunction [of the abortion ban] so that [the
county attorney] may fully enforce [it] as it was written.” Id.
That at least one county attorney intends to enforce
restrictive abortion laws, even when the Attorney General
has disavowed and advised against enforcement, is reason
enough for Plaintiffs to fear that they too will be targeted.
There is also a credible threat that the Reason
Regulations will be civilly enforced. The Arizona
Department of Health Services and the Arizona Medical
Board—which have the power to penalize physicians and
revoke their licenses—have indicated that they “comply
with the laws that are in effect and will continue to do so
when regulating allopathic physicians practicing in
[Arizona].” Response to Motion to Intervene, Isaacson v.
Mayes, Case No. 2:21-CV-01417-DLR (Feb. 17, 2023), Dkt.
158; Response to Motion to Intervene, Isaacson v. Mayes,
Case No. 2:21-CV-01417-DLR (Feb. 17, 2023), Dkt. 161.
Although this was a general statement and did not refer
expressly to the Reason Regulations, Plaintiffs could
reasonably interpret it as a threat to investigate physicians
who run afoul of those Regulations. Cf. Tingley, 47 F.4th at
1068 (when a state “confirm[s] it will enforce” a challenged
law “as it enforces other restrictions,” it amounts to a
credible threat of enforcement); LSO, 205 F.3d at 1155
(government’s refusal to disavow enforcement weighs in
favor of finding of imminent future injury).
Intervenors’ brief is silent on the threat of enforcement
by these agencies and likewise silent on the possibility of
civil suits brought under the Regulations’ private right of
action. At oral argument, Intervenors responded to questions
on these topics simply by stating that no such civil actions
have yet been brought. But the lack of past prosecution does
22 ISAACSON V. MAYES
not preclude Plaintiffs’ standing. The Regulations were only
recently enacted, and Plaintiffs have adequately alleged that
they are over-complying with the law for fear of exposing
themselves to liability. Additionally, the Regulations’
private right of action—which creates a potential plaintiff
each time physicians perform an abortion on a married
woman—is enough to create a credible threat of future
private enforcement.
The combination of these potential threats—from the
county attorneys, the Arizona health agencies, and private
parties—satisfies the third prong of Driehaus and is
sufficient to allege an imminent future injury.
4. Causation and Redressability
Our causation and redressability analysis regarding
Plaintiffs’ actual injury applies to their imminent injury as
well. As we noted above, even if Plaintiffs’ over-
compliance with the Reason Regulations contributes to some
of their injuries, their over-compliance is itself fairly
traceable to the alleged vagueness of the law. Intervenors do
not substantively dispute causation or redressability. They
argue only that Plaintiffs cannot meet these elements
because they have not established a cognizable injury. We
hold otherwise, and we also hold that Plaintiffs have satisfied
the causation and redressability requirements of standing
with respect to their imminent future injury.
IV. Conclusion
For all of the above reasons, we hold that Plaintiffs have
standing to bring their procedural due process claim based
on both actual and imminent injuries. We reverse and
ISAACSON V. MAYES 23
remand for the district court to consider Plaintiffs’ renewed
motion for a preliminary injunction on the merits. 8
REVERSED AND REMANDED.
8
We express no opinion on the merits of Plaintiffs’ claims. We
conclude only that Plaintiffs have standing to pursue them.