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The words “unborn human being” will be printed in the description of an Arizona abortion rights initiative in a pamphlet sent to all registered voters, the state Supreme Court ordered in a split decision on Wednesday, reversing an earlier ruling from the trial court.
The campaign behind the Arizona Abortion Access Act filed a lawsuit in early July challenging the use of the phrase in the summary, whose language was approved by a GOP-majority legislative committee.
The Arizona for Abortion Access campaign advocated to the Legislative Council for a change from “unborn human being” in the first sentence of the description to “fetus,” which the campaign argued was medically accurate and impartial.
State law requires the legislature to create a description of each ballot proposal that includes an analysis of laws that would be affected by the proposal’s passage. But the law expressly calls for an impartial analysis, and the abortion rights campaign claimed that the phrase “unborn human being” is partisan language that shouldn’t be used in what is meant to be a neutral description.
Maricopa County Superior Court Judge Christopher Whitten agreed in a July 25 ruling , and ordered lawmakers to remove the language from the description that will be sent to voters.
“The term ‘unborn human being’ is packed with emotional and partisan meaning, both for those who oppose abortion and for those who endorse a woman’s right to choose whether to have an abortion,” he wrote.
But on Wednesday, the Arizona Supreme Court reversed Whitten’s ruling and authorized the Secretary of State to print the publicity pamphlet using the phrase “unborn human being.”
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The court did not release its opinion fully explaining the decision, but said it would do so “in due course.”
The high court ultimately agreed with the eight Republican members of the legislative council who defended their use of “unborn human being” in the trial court and appealed Whitten’s decision to the state Supreme Court.
They argued that, because the phrase is a direct quote from the existing state law limiting abortion to 15 weeks of gestation, it should be regarded as impartial and left in place.
“We conclude that the Analysis provides the information required by (state law) and ‘substantially complies’ with the statute’s impartiality requirement,” Vice Chief Justice John Lopez wrote on behalf of the majority.
The Arizona Abortion Access Act would enshrine abortion as a fundamental right in the state Constitution up to fetal viability, around 24 weeks of gestation. If passed, it would nullify the state’s 15-week gestational ban, and prohibit lawmakers from enacting restrictions around the procedure that aren’t intended to safeguard the patient’s health or safety.
The proposal also includes an exception for procedures performed past the point of fetal viability if a health care provider decides it is necessary to preserve a woman’s life, physical or mental health.
Speaker of the state House of Representatives Ben Toma, a Peoria Republican, praised the ruling from the high court in a written statement.
“The ballot analysis prepared by the Legislative Council is intended to help voters understand current law,” Toma said. “Arizona’s 15-week law protects unborn children, while the abortion initiative essentially allows unrestricted abortions up until birth. It’s really that simple. The Arizona Supreme Court’s ruling is correct.”
In a written statement, Arizona for Abortion Access said that it was “deeply disappointed” in the ruling.
The campaign reiterated its stance that the phrase “unborn human being” is “a watchword for anti-abortion advocates with no basis in medicine or science.”
Arizona for Abortion Access argued that this means voters won’t learn about the proposed constitutional amendment via accurate and neutral language, “but will instead be subjected to biased, politically-charged words developed not by experts but by anti-abortion special interests to manipulate voters and spread misinformation.”
The Arizona Secretary of State’s Office confirmed Monday that the initiative had collected enough voter signatures to make it on the ballot. The campaign behind the act gathered a total of more than 820,000 signatures, and approximately 578,000 were confirmed to be valid, significantly more than the nearly 384,000 it needed to qualify to be put to voters.
Reproductive Freedom for All Arizona called the decision “reckless,” adding that it would put “anti-abortion disinformation language” in front of voters looking to educate themselves about the initiative.
“This decision is beyond disgraceful,” Athena Salman, a leader of the reproductive rights advocacy group, said in a written statement. “Muddying the waters and relying on lies are the only tools left for anti-abortion extremists, whose agenda is demonstrably at odds with voters in our state. But no matter what type of dirty tricks they try to pull to slow down our momentum, we know Arizonans will show up and vote for their freedoms this November.”
Justice Clint Bolick recused himself from the case, as his wife Rep. Shawnna Bolick, a Phoenix Republican, is a member of the legislative council that created the language for the summary of the Arizona Abortion Access Act.
Replacing him on the bench was retired state Supreme Court Justice John Pelander, who was appointed by Republican Gov. Janice Brewer.
Chief Justice Ann Scott Timmer, another Brewer appointee, and Justice James Beene, appointed by Republican Gov. Doug Ducey, dissented and agreed with the lower court’s ruling.
The state Supreme Court has yet to rule on another Arizona Abortion Access Appeal, in which the anti-abortion organization Right to Life Arizona asked the courts to ban the initiative from the ballot. The organization claimed that voters who signed petitions in support of putting it on the November ballot were shown a misleading summary of the initiative. The court is expected to rule by Aug. 22, the ballot printing deadline.
***UPDATE: This story has been updated with a comment from Arizona House Speaker Ben Toma.
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