Forbes

Opinion by Judge SCHROEDER; Concurrence by Judge SNEED.

Plaintiffs challenge the constitutionality of an Arizona statute that criminalizes any medical “experimentation” or “investigation” involving fetal tissue from induced abortions unless necessary to perform a “routine pathological examination” or to diagnose a maternal or fetal condition that prompted the abortion. The plaintiffs include individuals suffering from Parkinson’s disease who because of the statute are unable in Arizona to receive transplants of fetal brain tissue that many medical experts believe hold out promise for eventual amelioration or treatment of the disease. Plaintiffs also include doctors in Arizona who fear possible criminal prosecution if they provide services to their patients that the doctors would like to provide.

The district court held on summary judgment that the statutes are unconstitutionally vague, and permanently enjoined their enforcement. It did not reach various other theories presented in plaintiffs’ complaint for invalidation of the statute. In so ruling the district court followed the holdings of three other circuits that considered similar statutes and held them all…

concurring:

I agree with the majority’s conclusion that Section 36-2302 of the Arizona Revised Statutes is unconstitutional. This section appears to be part of Arizona’s regulation of abortion. Following the Supreme Court’s decision in Roe v. Wade, 410 U.S. 113 , 93 S.Ct. 705 , 35 L.Ed.2d 147 (1973), many states enacted statutes designed to regulate or prohibit experimentation on fetuses and fetal tissues. These statutes were frequently incorporated into the states’ abortion laws. 1 Often, the statutes applied only to aborted tissue. Similarly, § 36-2302 of the Arizona Revised Statutes appears in Chapter 23 entitled “Protection of Fetus or Embryo,” while Chapter 20, entitled “Abortion,” sets forth several provisions designed to regulate and curb access to abortion. In determining what question is specifically at issue, “a reviewing court should not confine itself to examining a particular statutory provision in isolation.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 , 120 S.Ct. 1291, 1300 , 146 L.Ed.2d 121 (2000). Rather, the “words of the statute must be read in their context and with a view to their place in the overall statutory scheme.” Id. at 1301 (quoting Davis v.…