By: Marki Stewart and Karen Owens, Coppersmith Brockelman PLC

1. Proposition 139: Abortion Rights Now Are Part of the Arizona Constitution

On November 5, 2024, Arizona’s voters passed Proposition 139, an initiative that enshrines the right to abortion in the Arizona Constitution.  The initiative largely parallels the abortion right as set forth in Roe v. Wade, the 1973 U.S. Supreme Court case which the Court overruled in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022).   Arizona voters approved the initiative by large numbers, with “yes” votes constituting 61.61% of the vote, compared to a 38.39% “no” vote.  https://ballotpedia.org/Arizona_Proposition_139,_Right_to_Abortion_Initiative_(2024)

The text of Proposition 139, now Article 2, Section 8.1 of the Arizona Constitution, is quite short.  The entirety of the provision is as follows:

1. Every individual has a fundamental right to abortion, and the state shall not enact, adopt or enforce any law, regulation, policy or practice that does any of the following:
2. Denies, restricts or interferes with that right before fetal viability unless justified by a compelling state interest that is achieved by the least restrictive means.
3. Denies, restricts or interferes with an abortion after fetal viability that, in the good faith judgment of a treating health care professional, is necessary to protect the life or physical or mental health of the pregnant individual.
4. Penalizes any individual or entity for aiding or assisting a pregnant individual in exercising the individual’s right to abortion as provided in this section.
5. For the purposes of this section:
6. “Compelling state interest” means a law, regulation, policy or practice that meets both of the following:
7. Is enacted or adopted for the limited purpose of improving or maintaining the health of an individual seeking abortion care, consistent with accepted clinical standards of practice and evidence-based medicine.
8. Does not infringe on that individual’s autonomous decision making.
9. “Fetal viability” means the point in pregnancy when, in the good faith judgment of a treating health care professional and based on the particular facts of the case, there is a significant likelihood of the fetus’s sustained survival outside the uterus without the application of extraordinary medical measures.
10. “State” means this state, any agency of this state or any political subdivision of this state.
11. Reuss v. State of Arizona

Proposition 139 became effective on Nov. 25, 2024, and the Arizona Constitution has now been amended to include its terms.  But the proposition itself did not automatically delete prior laws limiting abortion rights.  With that in mind, on December 3, 2024, health care providers filed a lawsuit challenging A.R.S. §§ 36-2321 through -2326, provisions that contain the ban on abortion after 15 weeks of pregnancy, on grounds that the 15-week limitation violated the new Constitutional amendment.  Reuss v. State of Arizona, No. CV2024-000565 (Maricopa County Superior Court, March 2025).

Plaintiffs filed a Motion for Judgment on the Pleadings.  The State agreed that the trial court could resolve the case on the pleadings and asked the court to enter the declaratory and injunctive relief that Plaintiffs sought.  On March 5, 2025, the Maricopa County Superior Court entered an Order granting Plaintiffs’ Motion for Judgment on the Pleadings.   A stipulation for dismissal of the case was filed soon thereafter.  Because the parties agreed to enter judgment on the pleadings, there will be no appeal.  The Reuss trial court decision is therefore the final word on the enforceability of A.R.S. Sections 36-2321 through 2326.

• What did Reuss remove from law?

The Reuss case effectively deleted several specific provisions from Arizona law. These are:

• A.R.S. § 36-2321: Definitions for abortion; medical emergency; gestational age; major bodily function.  (But note that some of these terms are defined elsewhere in Title 36.)
• A.R.S. § 36-2322:
  • Except in a medical emergency, a physician may not intentionally or knowingly perform, induce or attempt to perform or induce an abortion if the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks.
  • Requires reporting to the Arizona Department of Health Services (“ADHS”)  for every abortion performed after 15 weeks.
• A.R.S. § 36-2323: Required ADHS to create the reporting forms.
• A.R.S. § 36-2324:
  • Any physician who intentionally or knowingly violates the prohibition in section 36-2322, subsection B is guilty of a class 6 felony.
  • A pregnant woman on whom an abortion is performed may not be prosecuted for conspiracy to commit any violation of this article.
• A.R.S. § 36-2325:
  • A physician who intentionally or knowingly violates the prohibition in section 36-2322, subsection B commits an act of unprofessional conduct and the physician’s license to practice medicine in this state shall be suspended or revoked.
  • Imposed civil penalties for failure to comply with ADHS reporting requirements or for providing false information on a report to ADHS.
  • A.R.S. § 36-2326: Authorized the Arizona Attorney General to bring an action to enforce this article.
• What abortion laws were unaffected by Reuss?

The Reuss litigation did not affect all of Arizona’s abortion laws, however.  Important statutes regulating the provision of abortion remain in place, although the constitutionality of at least some of these provisions is in doubt under Proposition 139.  The following statutory provisions remain in law:

• A.R.S. § 36-2159: Prohibits abortion after 20 weeks gestation except in a medical emergency; violation is a class 1 misdemeanor and an act of unprofessional conduct; creates civil cause of action for the pregnant person, father, and maternal grandparents.
• A.R.S. § 36-2152: Requires parental informed consent or judicial bypass for minors seeking abortion services.
• A.R.S. § 36-2323: Requires ADHS to create reporting forms.
• A.R.S. § 36-2324:
  • Any physician who intentionally or knowingly violates the prohibition in section 36-2322, subsection B is guilty of a class 6 felony. 
  • A pregnant woman on whom an abortion is performed may not be prosecuted for conspiracy to commit any violation of this article.
  • Note that Reuss specifically addressed and deleted A.R.S. § 36-2322.
• A.R.S. § 36-2325:
  • A physician who intentionally or knowingly violates the prohibition in section 36-2322, subsection B commits an act of unprofessional conduct and the physician’s license to practice medicine in this state shall be suspended or revoked. 
    • Imposes civil penalties for failure to comply with ADHS reporting requirements or for providing false information on a report to ADHS. 
  • Note that Reuss specifically addressed and deleted A.R.S. § 36-2322.
• A.R.S. § 36-2326: Authorizes the Arizona Attorney General to bring an action to enforce this article.
• A.R.S. § 36-2156: Requires a fetal ultrasound 24 hours before the abortion services; creating a civil cause of action for the pregnant person, the father of the fetus, and maternal grandparents for violation of this section. 
• A.R.S. § 36-2153: Establishes informed consent requirements at least 24 hours before the abortion services; only physicians (MDs and DOs) may provide abortions.
• A.R.S. § 36-2160: Abortion-inducing drugs may only be provided by a physician; prohibits providing abortion-inducing drugs via courier, delivery, or mail service. Notably, the Trump Administration has now asked a federal trial court to dismiss a case challenging Biden Administration rules that broadened federal abortion medication access.  https://www.nytimes.com/2025/05/05/health/trump-abortion-pill-case.html This federal position, however, does not by itself render Arizona’s state restrictions ineffective.
• A.R.S. § 36-3604: Prohibits the use of telehealth to provide an abortion. 
• Various statutes related to ADHS abortion reporting requirements (including reporting requirements for informed consent, fetus born alive, complications, etc.).
• ARS § 13-3603.02: Makes it a felony to perform an abortion for race or sex selection or because of a genetic abnormality except in an emergency.
• Possible Future Challenges

Although we do not yet know what additional abortion-related statutes may be challenged successfully under the new Constitutional amendment, further challenges to the remaining Arizona abortion laws appear likely.  Generally, it is reasonable to expect arguments that various statutes interfere with the fundamental right to an abortion and are not justified by a compelling state interest.

For example, the restriction on providing abortion after 20 weeks unless there is a medical emergency (in A.R.S. § 36-2159) appears to directly contradict the new Article 2, Section 8.1(A)(2) of the Arizona Constitution.  That language prohibits the state from taking any action which: “[d]enies, restricts or interferes with an abortion after fetal viability that, in the good faith judgment of a treating health care professional, is necessary to protect the life or physical or mental health of the pregnant individual.”  We may see arguments that 20 weeks gestation is not the same as “fetal viability” as defined in the new Constitutional provision.  In addition, it may be argued that the 20-week ban’s exception for “medical emergency” is not the same as the Arizona Constitution’s standard stating that an abortion after fetal viability must be necessary to protect the life or physical or mental health of the pregnant individual.

Similarly, arguments may be made that the ultrasound requirement (A.R.S. § 36-2156) and 24-hour waiting period (A.R.S. § 36-2153) interfere with the fundamental right to abortion now in the Arizona Constitution and lack the justification of a compelling state interest.   Waiting periods may be characterized as a significant burden particularly for patients who live in rural areas and need to travel for these appointments.

We also may see constitutional challenges leveled at, among other provisions, the prohibition on the use of telehealth for abortion services (A.R.S. § 36-3604), the state limitations on the delivery of abortion medications (A.R.S. § 36-2160), the prohibition of abortions performed by mid-level providers (A.R.S. § 36-2153), and informed consent provisions (A.R.S. § 36-2153).

Suffice to say that further challenges to Arizona abortion laws in light of Arizona’s new Constitutional amendment may take place. It is difficult to predict how the courts will come down on each of these provisions and others.  At a minimum, we should expect that abortion law in Arizona will be in flux for the foreseeable future.

By: Melissa Soliz and Katherine Hyde, Coppersmith Brockelman PLC

Last year, the Department of Health and Human Services (HHS) made some significant changes to 42 CFR Part 2 (Part 2)’s privacy protections for substance use disorder (SUD) records. Part 2 programs and other lawful holders of SUD records have less than one year left to get ready for the upcoming compliance deadline on February 16, 2026.

In February 2024, HHS published the final rule modifying Part 2 to implement Section 3221 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act (the “CARES Act Final Rule”).[1] The CARES Act Final Rule was effective April 16, 2024, but the compliance deadline is delayed until February 16, 2026. Early voluntary compliance is permitted. Below, we summarize some of the most important rule changes for health care providers, health plans, and health information networks/exchanges (HIN/HIEs).

Enforcement Structure

One of the most significant changes is the addition of a robust complaint, breach reporting, and penalty enforcement structure that leverages HIPAA’s civil/criminal penalties and the HIPAA Enforcement Rule (see 164 CFR Part 160, Subparts C, D, and E). This change significantly raises the risks associated with Part 2 noncompliance by giving HHS and state attorneys general new enforcement authority. HHS has actively conducted compliance reviews and investigations through OCR and regularly exercises its civil enforcement authority.

Breach Reporting

The requirements of the HIPAA Breach Notification Rule are now applicable to Part 2 programs. Specifically, HHS finalized changes to the Part 2 regulations to require that the Breach Notification Rule “shall apply to part 2 programs with respect to breaches of unsecured records in the same manner as those provisions apply to a covered entity with respect to breaches of unsecured protected health information.”[2] HHS also finalized the HIPAA definition of “breach” in Section 2.11. However, in the commentary to the CARES Act Final Rule, HHS explains that Part 2 programs are required to report not only HIPAA breaches, but the unauthorized use or disclosure of Part 2 records in violation of Part 2.[3] Notably, this expanded breach reporting requirement does not apply to other lawful holders of Part 2 records (including Qualified Service Organizations) that are not Part 2 programs.

Applicability and Scope

Neither the CARES Act nor the CARES Act Final Rule make changes to the applicability of Part 2 to Part 2 programs. However, the CARES Act Final Rule does:

• Change the scope of applicability of Part 2’s use and disclosure restrictions to health plans by excluding health plans (as defined by HIPAA) from the definition of “third-party payer”;[4]
• Clarifies the applicability of Part 2 provisions to other lawful holders of Part 2 records as well as the types of individuals and entities who may qualify as a qualified service organization (QSO);[5]
• Adopts the HIPAA de-identification standard;[6] and
• Creates a new subset of Part 2 records, called SUD counseling notes, that have heightened protection akin to HIPAA’s protection for psychotherapy notes.[7]

Part 2 Notice

Since its inception, Part 2 has required Part 2 programs to give patients notice of Part 2’s confidentiality requirement upon their admission to the Part 2 program. This is sometimes referred to as a “Part 2 summary” or “Part 2 notice.” In the CARES Act Final Rule, HHS finalized requirements to align the Part 2 notice requirements with HIPAA as well as changes to Part 2’s enforcement structure.[8] The changes are tantamount to a complete rewrite of the Part 2 notice requirements. Consequently, Part 2 programs will need to rewrite their Part 2 notices on or before the February 16, 2026 compliance deadline.  For HIPAA-regulated entities, the Part 2 notice may be combined with the HIPAA Notice of Privacy Practices (NPP).

A Future TPO Consent

A patient may now execute a single Part 2-compliant consent that covers all future uses and disclosures of Part 2 records for treatment, payment, or health care operations (TPO) purposes, unless revoked (a “future TPO consent”).[9] When such a future TPO consent is executed, a Part 2 program or HIPAA-regulated entity may use and disclose those Part 2 records as permitted by HIPAA for TPO purposes, unless revoked.[10] Additionally, HIPAA-regulated entity recipients of the Part 2 records pursuant to such a TPO consent may further disclose those Part 2 records in accordance with HIPAA (that is, for other HIPAA-permitted purposes beyond TPO), except for uses and disclosures for civil, criminal, administrative, and legislative proceedings against the patient.[11] Disclosures by non-HIPAA regulated entities recipients, however, are limited to the purposes provided for in the consent.[12]

Part 2 Consent Elements

HHS has finalized the Part 2 consent elements to partially (but not fully) align with HIPAA authorization elements.[13] A Part 2 consent continues to remain materially different from a HIPAA authorization and may be combined with a HIPAA authorization to form a combined Part 2 consent/HIPAA authorization. Importantly, in the CARES Act Final Rule, HHS revised the definition of “intermediary” to exclude HIPAA-regulated entities.[14] As a result, the special consent requirements and limitations applicable to intermediaries and redisclosures through intermediaries do not apply if the intermediary is a HIPAA-regulated entity.[15] Special consent element rules (or options) also apply:

• To future TPO consents;[16]
• For the use and disclosure of SUD counseling notes;[17]
• To use and disclose Part 2 records in proceedings against the patient;[18]
• For uses and disclosures to prevent multiple enrollments in a withdrawal management or maintenance treatment program;[19]
• To elements in the criminal justice system which have referred patients;[20] and
• For disclosures to prescription drug monitoring programs.[21]  

Notice to Accompany Disclosure and Copy/Explanation of Consent

HHS continues to require that certain procedural requirements be followed with respect to consent-based disclosures of Part 2 records. Specifically, HHS continues to require that a “prohibition on redisclosure notice” accompany consent-based disclosures of Part 2 records, but has rebranded this as a “notice to accompany disclosure.” [22] HHS also added a new requirement to transmit a copy of the patient’s consent or clear explanation of the scope of consent with “each disclosure” of the patient’s Part 2 records.[23] HHS added this procedural requirement to enable Part 2 record recipients that are HIPAA-regulated entities to identify whether the Part 2 records were disclosed pursuant to a TPO consent (and thus qualify for redisclosure for HIPAA-permitted purposes, except in proceedings against the patient) or something less or different than a TPO consent.

Conclusion

The CARES Act Final Rule will allow patients to more broadly consent to the use and redisclosure of their Part 2 records, which potentially could enable patients to take better advantage of the benefits of whole person care and advancements in interoperability. Whether these benefits are realized will depend on whether health care providers, health plans, HIN/HIEs and their technology vendors are able to build the technology systems that are capable of identifying, segmenting, and segregating Part 2 records and deploying consent management functionality that meets the requirements of the Part 2 data sharing rules. 

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[1] 89 FR 12472 (Feb. 16, 2024).

[2] 42 CFR 2.16(b).

[3] 89 FR at 12496.

[4] 42 CFR 2.11 and 2.12(d)(2)(i).

[5] See 42 CFR 2.11 (definitions of QSO and lawful holder).

[6] 42 CFR 2.16(a)(1)(i)(E).

[7] 42 CFR 2.11 and 2.31(b).

[8] 42 CFR 2.22.

[9] 42 CFR 2.33(a).

[10] 42 CFR 2.33(a)(2).

[11] 42 CFR 2.33(b)(1).

[12] 42 CFR 2.33(b)(2).

[13] 42 CFR 2.31.

[14] 42 CFR 2.11.

[15] See 42 CFR 2.31(a)(4)(ii) and 2.24.

[16] See generally 42 CFR 2.31(a).

[17] 42 CFR 2.31(b).

[18] 42 CFR 2.31(d).

[19] 42 CFR 2.34

[20] 42 CFR 2.35.

[21] 42 CFR 2.36.

[22] 42 CFR 2.32(a).

[23] 42 CFR 2.32(b).