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Jean-Jacques Cabou (#022835)

JCabou@perkinscoie.com
Alexis ~. Danneman(#030478)
ADanneman@perkinscoie.com
PERKINS COIF LLP
2901 North Central Avenue, Suite 2000
Phoenix, Arizona 85012-2788
Telephone: 602.351.8000
Facsimile: 602.648.7000
DocketPHX@perkinscoie.com
Attorneys for Camelback Family Planning and
C~a.hrielle ~~padxicic

ARI70NA SUPERIOR COURT

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MARICOPA COUNTY

11
12

No.

Camelback Family Planning and

Gabrielle Goodrick,

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Plaintiffs,

VERIFIED COMPLAINT FOR

INJUNCTIVE,DECLARATORY,AND
SPECIAL ACTION RELIEF

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v.
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Mark Brnovich, Arizona Attorney General
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Defendant.
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Plaintiffs

Camelback

Family

Planning ("CFP") and

Dr. Gabrielle

Goodrick

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("Dr. Goodrick") file this Verified Complaint for Injunctive, Declaratory, and Special Action

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Relief against Defendant Attorney General 1~1ark Brnovich ("Attorney General"). Plaintiffs

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allege as follows:
NATURE OF THE CASE

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1.

For the second time in less than a year, the Attorney General is attempting to use

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its claimed authority under Arizona's Consumer Praud Act (the "Act"), A.R.S. 44-1521 et

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seq., to compel the production of information from CFP, one of Arizona's few remaining

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providers of comprehensive women's health services, including abortions.

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Attorney General has issued both a subpoena (the "Subpoena") to Dr. Goodricic, CFP's owner,

1 l 9853-0001/1,LGALI 33585184.4

At present, the

and a Civil Investigative Demand (the "CID") to CFP (collectively the "Discovery"). The
2

Subpoena seeks to compel Dr. Goodrick to testify under oath, while the CID seeks to compel CFP

to produce certain information about CFP's patients and past practices regarding fetal tissue

procurement and disposal.

2.

Alone and together, the CID and the Subpoena are substantively improper and

seek privileged health information of patients, specifically the names and medical records of

patients that have had abortions and donated fetal tissue.

Discovery nn multiple statutory and constitutional grounds.

Attorney General will not deviate from its position that it is entitled to learn the identities of

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certain of Plaintiffs' patients, to review the unredacted medical records of those patients, and to

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examine Dr. Goodrick under oath about those patients. The Attorney General's Office (the

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"AGO") blithely insists that it is entitled to identify and examine the records of these patients

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because "a company simply cannot conceal from law enforcement the identities of the consumers

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involved in a possible Consumer Fraud Act violation by the company."

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3.

Plaintiffs have objected to the

I~ut, among other things, the

Without relief From this Court, Plaintiffs will be required to disclose the names of,

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and information about, its patients pursuant to the demands of the Discovery. Accordingly,

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Plaintiffs respectfully ask the Court to confirm principles that have long been enshrined in the law

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of our state and of the United States: that a woman's decision to have an abortion, or to have any

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medical procedure, is private and protected and that the State cannot intrude upon that interest

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simply because, as in this case, one of its political officeholders claims a reason to do so.
JURISDICTION AND VENUE

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4.

This Court has jurisdiction over actions seeking declaratory and injunctive relief

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pursuant to Article 6, Section 14 of the Arizona Constitution, A.R.S. 12-123, 12-1.801, 12-

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1831, and Arizona Rules of Civil Procedure 57 and 65.

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5.

This Court has jurisdiction over special actions against bodies, officers, and

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persons pursuant to Article 6, Section 18 of the Arizona Constitution and Rules 1 through 4 of the

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Arizona Rules of Procedure for Special Actions.

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11.9853-0001/LLiGAL133585184.4

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No.

6.

Plaintiffs are entitled to relief pursuant to Rule 3(b) of the Rules of Procedure for

Special Actions because in seeking the Discovery, Defendant has proceeded, and is threatening to I~

proceed, in excess of his legal authority.

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7.

Venue is proper in Maricopa County under A.R.S. 12-401 and Arizona Rule of

Procedure for Special Actions 4(b).

PARTIES

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8.

Plaintiff CFP is a medical clinic providing women's healthcare services in

Arizona, including both medical and surgical abortions. CFP is located in Phoenix, Arizona and

has been served with the CID in this case.

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9.

Plaintiff Dr. Goodrick is a doctor practicing family medicine in Phoenix, Arizona.

She is the owner and medical director of CFP and has been served with the Subpoena in this case.
10.

Defendant Mark Brnovich is the Arizona Attorney General. The Attorney General

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and his assistants have the power to enforce the Act. See A.R.S. 44-1524. The Attorney

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General, through his assistants, issued the Discovery. He is sued in his official capacity.
STATEMENT OF FACTS

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11.

For nearly 20 years, CFP has provided women's healthcare services to patients

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from across Arizona. Dr. Goodrick has served as CFP's Medical Director since its inception.

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CFP provides patients with a wide variety of family planning services, including both medical

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and surgical abortion services for those patients who desire them. CFP is one of a very few

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places in Arizona, ten as of 2014, and we believe fewer today, at which women can safely receive

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abortion services. See Planned Pa~~enthood ANzz., Ivrc, v. Humble, 753 r.3d 905, 910 (9th Cir.

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2014)(explaining that there were ten. providers in Arizona as of 2014).

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12.

That the number of facilities providing these services is so small is no accident. At

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the urging of lobbyists from groups like the Center For Arizona Policy ("CAP"), the Alliance

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Defending Freedom ("ADF") and Arizona Right to Life ("AZRTL"), Arizona has steadily

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enacted laws and regulations which combine to make our state one of the most difficult places in

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the country for women to access, and for doctors to provide, safe, legal abortion services. See zd.

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at 914, 918 (striking down CAP-sponsored 2012 Arizona legislation as "undue burden on a
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No.

women's right to abortion" in part because there was "no evidence whatsoever that the law

furthers any interest in women's health"); see also, e.g., Ctr, for Ariz. Policy, Issues: Life,

http://www.azpolicy.org/issues/life/ (last visited Nov. 16, 2016)(noting that protecting "sanctity

4 '~ of human life" is "central to the mission of CAP and claiming "devastating impact ... [ofd Roe
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v. Wade"); see also Alliance Defending Freedom, Issues: Abortion Ha~inr Women and DestNoys

Life, http://adflegal.org/issues/sanctity-of-life/abortions (last visited Nov. 16, 2016) ("Over the

past 24 years, a surging pro-life movement has forced the closure of 75% of surgical abortion

businesses in

www.azrtl.org/about-us (last visited Nov. 16, 2016) ("Our Mission To End Abortion In

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America. That's tie good

news."); Ariz. light to Life, About

Us,

Arizona ...").
13.

As a result of these laws, Plaintiffs are subject to a host of legal obligations

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unknown to most medical practices, including obligations to: refuse to provide certain procedures

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or medications without a 24-hour "reflection period," A.R.S. 36-2153(A)(1), regularly report in

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detail on abortion procedures, id. 36-2161, permit unannounced, warrantless inspections of their

15 'I! office, id. 36-449.02(D), and maintain admitting privileges at a nearby hospital, id. 3616

449.03(C)(3). These laws, which impose heightened burdens on abortion providers to which

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providers of similar outpatient procedures are not subject, are known as "Targeted Regulation of

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Abortion Providers"("TRAP")laws. TRAP laws "do little or nothing for health, but rather strew

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impediments to abortion." Whole Women's Health v. Hellef~stedt, 136 S. Ct. 2292, 2321, as

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revised (June 27, 2016)(Ginsburg, J. concurring)(quoting Planned Parenthood of Wis., Inc. v.

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Schimel, 806 F.3d 908, 912(7th Cir. 2015)).

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14.

It now seems that, on top of Arizona's TRAP laws, the Attorney General is ~

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attempting to add further scrutiny on and burden for, patients, Plaintiffs and others like them who

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provide patients with constitutionally protected abortion procedures. Beginning at the end of

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2015, the Attorney Ueneral started serving compulsory process and discovery on Plaintiffs

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pursuant to the Act. Specifically, on December 30, 2015the same Assistant Attorney General

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who signed the Discovery presently at issue

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compel from CrP the production of a variety of information. Specifically, the Attorney General
119853-0001/LEQAL133585184,4

signed a CID (the "2015 CID") that purported to

No.

was interested in documents and information related to instances in which Dr. Goodricic had

donated fetal organs or tissue,

15.

After negotiations through counsel, and hoping to avoid litigation, Plaintiffs

reached a compromise of the 2015 CID whereby they agreed to produce certain information

without conceding that any obligation to do so existed and reserving their rights to assert future

challenges to the 2015 CID or any future requests of the Attorney General.

Plaintiffs produced, among other things, redacted consent forms reflecting the fact that, with the

consent of patients, Plaintiffs provided fetal tissue for research on seven. or fewer occasions over a

period of a :Few months in 2015.

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Specifically,

Notably, the response also revealed that neither Dr. Goodrick nor CFP conducted

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any procedures involving donating, selling, or otherwise surrendering fetal organs or tissue for

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any purpose other than its immediate destruction since August 2015.

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17.

The statute of limitations for a claim under the Act is one year. See Steinberge~ v.

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McVey ex rel. Cty. of Maiicopa, 234 Ariz. 125, 142, 318 P.3d 419, 436 (App. 2014) ("A

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consumer fraud claim must be filed within one year after the cause of action accrues."). And yet

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the Attorney General is at it again.

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18.

On August 10, 2016, the Attorney General served the Subpoena on Dr. Goodrick

seeking to examine her under oath. [Motion Ex. 1]

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And, on September 1, 2016, the Attorney General served the CID on CFP to

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compel additional information and document production, about a variety of matters related to

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"instances since January 1, 2012 in which [CFP] provided fetal organs or tissue." [Motion Ex. 2]

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20.

On September 16, 2016, Plaintiffs responded to the Discovery. Specifically,"CFP

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continued] to object to the issuance of, and requests in," the Discovery. Among other things,

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Plaintiffs objected on the grounds that the Discovery was "used for an improper purpose, to

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differentially scrutinize, harass, or intimidate petitioners and others who provide abortion

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Application for Preliminary Injunction ("Motion"), filed concurrently herewith.

119853-0001/L~GAL133585184.4

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services" and that providing some of the information would violate patients' privacy rights.

[Motion fix. 6]
21.

Attorney General engaged in continued, extensive efforts to resolve this matter short of litigation.

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Following this response and continuing up until this week, Plaintiffs and the

'

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But, the Attorney General has made clear that it will not desist from its demand for

the names and patient records of the patients whose fetal tissue was provided for research and

from its demand that Dr. Goodrick be examined under oath about her interactions with and ',

treatment ot'these patients. [1Vlotion Ex. 3]

23.

Plaintiffs share the Supreme Court's belief that "the doctor-patient relation [in the

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abortion context] is entitled to the same solicitude it receives in other contexts." Planned

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Pasenthood of Se. Penn. v. Casey, 505 U.S. 833, 884 (1992). Therefore, where, as here, the

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privacy of individual patients and the confidentiality of their treatment is threatened by the

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unilateral action ofthe Attorney General, Plaintiffs must seek judicial intervention.

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24.

To be clear, Dr. Goodrick and CPP will respect and follow whatever decisions are

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ultimately made by our state's courts. But they cannot simply accede to the unsupervised,

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seemingly unconstitutional, demands of the Attorney General to pry into the private affairs of

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their patients.
CLAIMS FOR RELIEF

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COUNT I.
(For lleclaratoty, InjunetiE~e, and Special Action Relief Confirming that the Discovery is
Propounded for "An Improper Purpose" and is Thus Unenforceable)
25.

PlaintifFs reallege and incorporate by reference all prior paragraphs of this

Complaint and the paragraphs in the counts below as though fully set forth herein.
26.

"[A] party may resist an administrative subpoena on any appropriate grounds."

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People ex sel, Babbitt v. Herndon, 119 Ariz. 454, 456, 581 P.2d 688, 690 (1978). Such grounds

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include "that the inquiry is not within the agency's scope of authority, that the order is ton

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vague ...and that the summons is being used for an improper purpose such as to harass or put

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pressure on the investigated party." Id.

]19853-0001/LT'GAL133585184.4

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No.

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27.

It is beyond question that the Attorney General is anti-choice and that the AGO

has deep ties to CAP and other anti-choice groups including ADr.
28.

As touted on his website, www.mark4az.com, the Attorney General proclaimed

himself "the only pro-life candidate" in the attorney general race and said he was "proud to be
endorsed"

by

AZRTL.

Mark

Brnovich

for

Arizona

Attorney

General, Issues,

~, http://www.mark4az.com/issues/ (last visited Nov. 16, 2016).

29.

A7RTL, the mission of which is to "end abortion," lauded the Attorney General's

claim that "we have a moral obligation as a society to protect the vulnerable whether they are
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unborn, children, or adults." See Press Release, Ariz. Right to Life, AZRTL PAC Announces'

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Endo ^cement fof^ Attorney General (Apr. 10, 2014), http://www.mark4az.com/az-right-to-life-

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pac-endorses-mark-brnovich-for-attorney-general/.

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30.

CAP's President endorsed the Attorney General. .See, e.g., Bob Christie, Arizona

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aboibons diopping sloweN than national average, Ariz. Capitol Times (June 8, 2015),

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http://azcapitoltimes.com/news/2015/05/11/former-dcs-head-says-brnovich-made-decision-to-

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bar-married-gay-couples-from-adopting/.

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31.

The Attorney General also has hired former CAP employees into senior posts in

the AGO.
32.

In mid-2015, prior to the issuance of the 2015 CID, for example, the Arizona

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Republic reported that Aaron Baer, a "top official with the powerful Center for Arizona Policy

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[wash joining Arizona Attorney General Mark Brnovich's administration." Yvonne Wingett

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Sanchez, Exec at CenteN fog Arizona Policy t~o join AG's Offce, Ariz. Republic (July 14, 2015),

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htt~://www.azcentral.com/story/news/arizona/politics/2015/07/14/center-for-arizona-policy-

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executive-tojoin-brnovich-office/ 30173849/.

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33.

Assistant Attorney General and Senior Litigation Counsel Matthew du Mee, who

is handling this case, is a former Legal and Policy Aide for the Center for the Arizona Policy.
34.

And, Mr. du Mee's senior supervisor, Paul Watkins, Civil Litigation Division

Chief, formerly worked as a lawyer at ADF.

119853-0001/LF~GAL133585184.4

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No.

35.

ADF describes Roe v. Wade and. the right it protects as a "tragedy [that] is a

devastating mark upon our culture." See Alliance Defending Freedom, Issues: Sanctity of Life,

http://www.adflegal.org/issues/sanctity-of-life/abortions/lcey-issues (last visited Nov. 16, 2016).

36.

ADF's core teachings on abortion include the claim that it is "sickening ...that

there is an entire industry profiting from each child killed in the womb." Id. And ADF says, in

no uncertain terms, that the "Alliance Defending Freedom is fighting to put an end to the abortion

industry and restore the human right to life." Id.

3`l.

The lliscovery is motivated by an improper purpose

a~ anirn~s tc~~ard the

constitutionally guaranteed right to abortion. This conclusion is driven by (1) the fact that the

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Discovery is aimed at events beyond the one-year statute of limitations for actions under the Act

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and (2) the fact that the Attorney General himself and other members of the AGO have a

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documented. history of hostility toward, and advocacy against, the constitutionally protected right

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of a woman to seek and have an abortion.

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COUNT 2
(For Declaratory, Injunctive, and Special Action Relief Confirming that the Discovery
Violates Ariz. Const. article II, section S and Federal Constitutional privacy guarantees)
38.

Plaintiffs reallege and incorporate by reference all prior paragraphs of this

Complaint and the paragraphs in the counts below as though fully set forth herein.
39.

The U.S. Constitution protects an individual "interest in avoiding disclosure of

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personal matters, including medical information." Tucson Woman's Clinic v. Eden, 379 F.3d

2l.

531, 551 (9th Cir. 2004)(quoting Whalen v. Roe, 429 U.S. 589, 599 (1977)).

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40.

The U.S. Constitution specifically protects the right of privacy in the abortion

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decision and the right of patients to "informational privacy" in the records relating to that

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decision.

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41.

Arizona's Constitution explicitly provides that "[n]o person shall he disturbed in

his private affairs ...without authority of law." Ariz. Const. art. II, 8.
42.

Medical decisions, treatments, and the records of them are "private affairs" within

the meaning of article II, section 8 of the Arizona Constitution.

119853-0001/LEGAL]33585184.4

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NO.

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43.

The Discovery does not constitute proper "authority of law" authorizing an

intrusion into Plaintiffs' patients' private affairs.

44.

In light oC the interests at stake, in seeking the identities and treatment records of

patients and by seeking their doctor to testify about their care, the Discovery violates federal and

state constitutional guarantees of privacy.

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COUNT 3
(For Declaratory, Injunctive, and Special Action Relief Confirming that the
Discovery Violates the Health Insurance Portability and accountability Act("HIPAA"))
45.

Plaintiffs reallege and incorporate by reference all prior paragraphs of this

Complaint and the paragraphs in the counts below as though fully set forth herein.
46.

HIPAA

generally

prevents

entities from

disclosing "[p]rotected

health

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information," see 45 C.F.R. 160.].03, which is "any information ...that: (1) [i]s created or'

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received by a health care provider" and "(2) [r]elates to," among other things, "the provision of

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health care to an individual."

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47.

Both the names of these patients and their medical records relate to the "provision

of health care" to them and are protected by HIPAA. 45 C.F.R. ~ 160.103.

48.

The Discovery does not comply with the requirements under HIPAA for

18 ~ disclosure.
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COUNT 4
(For Declaratory, Injunctive, and Special Action Relief Confirming that the
lliscoveiy Violates the Physician-Patient Privilege)
49.

Plaintiffs reallege and incorporate by reference all prior paragraphs of this

Complaint as though fully set forth herein.

50.

The physician-patient privilege is codified at A.R.S. 12-2235 and 12-2292, and

it protects the names of patients that have had abortions and their medical records.
51.

The privilege is also codified at A.R.S. 13-4062, which provides that "[a]

physician or surgeon, without consent of[their] patient" "shall not be examined as a witness."

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11.9853-0001/LIiGf1L133585184.4

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N O.

52.

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Disclosure of such information pursuant to the Discovery would be contrary to the

Arizona statutory protections for physician-patient privilege.

PRAYER FOR RELIEF

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Wherefore, Plaintiffs respectfully requests that this Court enter judgment:

A.

Declaring that the Discovery is sought :Cor an "improper purpose" under Arizona

B.

Preliminarily and permanently enjoining Defendant lrom enforcing the Discovery.

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law.

In the alternative, T''laintiffs respectfully request that this Cc~~rt ~nte~ ~ ud~~nerrl:
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C.

Declaring that the disclosure of the names and patient records of women who have

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had abortions and the Forced testimony of Dr. Goodricic about those patients and their treatment

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pursuant to the Discovery would violate the U.S. and Arizona Constitutions, as well as state and

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federal privacy protections.

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D.

Preliminarily and permanently enjoining Defendant from seeking from Plaintiffs

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the names and medical records of patients, and any testimony about the care given to those

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patients, who have had abortions.

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E.

Granting such other relief as the Court deems just and proper.

Dated: November 17, 2016

PERKINS COIF LLP

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C

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~~~ir-.~acques ~anou
{
Alexis E. Danneman
2901 I~~',entral Avenue, Suite 2000
Phoenix, Arizona 85012-2788

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Attorneys for Camelbacic Family Planning

and Gabrielle Goodrick

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119853-0001/LEGAL133585184.4

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VERIFICA'TIO1~1

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Y, Dr. Gabrielle Gaodrick, have reviewed the foregoing Verified Complaint for injt~nctzve,
Declaratory, and Special Action Relief.
I declare under penalty of perjuiy that the foregoing is true and correct to the best of my
knowledge.
Dated this 17th day of November, 2016.

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