Fight over wording of abortion ballot measure continues

PHOENIX — Republican lawmakers did nothing wrong in using “unborn human being” in their description of the effects of a ballot measure to put a right to abortion in the Arizona Constitution, a lawyer for the Legislature says.

Kory Langhofer told Maricopa County Superior Court Judge Christopher Whitten he should reject the claim by initiative proponents that the phrase is “medically unacceptable” and should be stricken from the analysis.

All this comes as Whitten is set to hear arguments this week over whether the Republican-controlled Legislative Council acted illegally when fulfilling their biennial duties of providing what are supposed to be an “impartial” analysis of the measures going to voters on Election Day.

Specifically, attorney Andrew Gaona representing Arizona for Abortion Access said the decision to use that phrase is “tinged with partisan coloring” because it is the description often used by abortion foes.

Instead, Gaona told the judge, the only neutral term would be “fetus,” something he said is medically definable.

Langhofer, however, says that word has its own ideological slant, one preferred by abortion rights advocates.

Nothing in the legal fight will affect whether Proposition 139 will appear on the November ballot. Backers submitted more than twice as many signatures as needed to qualify.

That measure would guarantee the right to terminate a pregnancy until fetal viability, generally considered between 22 and 24 weeks. But it also would allow the procedure beyond that to protect a woman’s life or her physical or mental health.

If approved, it would override current law that limits abortion to 15 weeks except in cases of medical emergencies.

What is at issue is what will appear in a pamphlet the Secretary of State’s Office mails to the homes of the more than 4 million registered voters. It contains what is supposed to be that impartial description crafted by the Legislative Council of all of the 14 measures on the ballot — 11 put there by the Republican-controlled Legislature and three, including this one submitted by voters — as well as pro and con arguments submitted by those willing to spend $75 to have them included.

Ganoa said GOP lawmakers deliberately used the phrase “unborn human being,” saying it is designed by abortion foes to stir up opposition to the procedure as well as the ballot measure.

“They are putting ... their thumb on the electoral scale to help advocate against this measure,” he said in filing suit.

Langhofer, in his legal response, said that’s ignoring a crucial point. The Legislative Council, in describing what the initiative would do, is required to start by explaining the current law that is at issue, he said.

In this case, Langhofer told Whitten, “unborn human being” are exactly the words in current state law, the one that forbids abortion beyond the 15th week of pregnancy — the one that would be repealed if the initiative is approved. That, said Langhofer, makes it proper to use that word in describing the effects of the ballot measure.

“An analysis that describes relevant existing laws by quoting them verbatim is the quintessence of an impartial summary,” Langhofer said. Anything beyond that, he said, would require the Legislative Council to analyze the policy issues of abortion.

“That is not the council’s responsibility,” Langhofer said.
Gaona does not dispute the phrase is, in fact, in current law.
“But the suggestion that statutory language can’t be ‘partial’ is nonsense,” he said.

Consider, he said, what might happen if a majority of the Legislature were made up of those opposed to the use of firearms and decided to change all references to “guns” in state statutes to “mass murder machines.”

That, Gaona said, would be within the power of the Legislature. But he said it still wouldn’t excuse the Legislative Council when using that phrase when describing an initiative to change gun laws.

“If the shoe were on the (other) foot, the Republican legislators would be singing a very different tune,” he said.

Then there’s the argument by initiative supporters that “unborn human being” is not a medically acceptable and accurate term.

To prove his point, Gaona said he intends to call Dr. Patricia Habak, an obstetrician and gynecologist, to testify at the hearing.

He told Whitten she will tell the court that “unborn human being” is not phrase she ever has heard in scientific terms during her education, training, practice of medicine or in the education of the next generation of physicians. Gaona also said Habak will says that “fetus” and “embryo” are the “accepted medical terms in this area.”

Langhofer, for his part, told the judge such testimony is irrelevant to the legal question of whether the Legislative Council crafted a legally impartial analysis.

But he told the judge even if there is such testimony, whether there is “medical acceptability” to any phrase is not the standard for him to determine if the description is proper.

“To the extent there is an external reference point for gaging an analysis’ impartiality, it is the perspective of a voter — not a physician — that controls,” Langhofer said. He said that’s because the law requires a description to be written “in clear and concise terms avoiding technical terms whenever possible.”

All that goes to his argument that there is no consensus among voters about whether there is a consensus about which term is acceptable, said Langhofer.

It isn’t just Gaona and his client Arizona for Abortion Access who want Whitten to reject the ballot description and order the Legislative Council to reword it. In a separate legal filing, attorneys for the Democrats on the Legislative Council, who voted against the use of “unborn human being” in the analysis, filed their own objections on Tuesday.

“Describing a fetus as an ‘unborn human being’ is a rhetorical strategy used by the Republican legislator defendants (on the council) to attempt to sway voters rather than meet the statutory requirement of impartiality,” wrote their lawyers.

“Words matter, and these words were clearly meant to bring more than a hint of partisan coloring,” the legal filing continued. “They were meant to provoke an emotional or visceral reaction that cannot comply with the statute’s requirement for impartiality.”

Whatever Whitten rules may not be the last word. Whichever side loses is likely to seek Supreme Court review.