Abortion rights campaign sues over ‘partisan’ summary of ballot measure to ensure abortion access

Organizers for a ballot initiative that would amend the Arizona Constitution to protect abortion rights set up outside the Arizona Capitol on April 9, 2024, shortly after the Arizona Supreme Court ruled that an 1864 near-total abortion ban is enforceable. Photo by Jerod MacDonald-Evoy | Arizona Mirror

In a last-ditch effort to oppose the state’s abortion rights ballot measure, Arizona Republicans added “unborn human being” to a description of it that’s set to be included in a voter information pamphlet — and now they’re facing a lawsuit for violating a state law requiring the use of impartial, nonpartisan language.

Cheryl Bruce, the campaign manager for Arizona for Abortion Access, slammed GOP lawmakers for continuing to “assault” the ballot measure, which just a week ago filed a record number of voter signatures to qualify for the November election.

“The very same legislators who instituted the extreme abortion ban currently in place, a ban that has no exceptions for rape or incest, are now trying to put their thumbs on the electoral scale in an effort to confuse voters,” Bruce said, during an online news conference announcing the lawsuit.

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On July 8, a panel of state lawmakers met to consider summaries for each of the proposals headed for the ballot. Among them was the Arizona Abortion Access Act, which would strike down the current 15-week restriction on abortions and enshrine in the state constitution the right to obtain an abortion up to fetal viability, which is generally regarded as being around 24 weeks. It also includes exceptions for abortions beyond that point if a health care provider deems it necessary to safeguard a patient’s life or their physical or mental health.

The eight Republicans on the Legislative Council committee, all of who backed the 15-week ban in 2022 and all but one of who voted to keep a near-total ban in place earlier this year, approved the inclusion of the phrase “unborn human being” in the summary for the abortion rights ballot measure.

According to reproductive rights advocates, that decision is in direct violation of Arizona law.

What happened?

Earlier this week, a committee panel of eight Republicans and six Democrats approved, along party lines, a ballot measure summary that referred to an “unborn human being” when describing Arizona’s current 15-week abortion ban. State law requires the legislature to craft a summary for each ballot proposal that includes an analysis of laws that would be affected by the proposal’s passage. But state law expressly calls for an “impartial” analysis.

Austin Yost, an attorney representing the Arizona for Abortion Access Committee, urged lawmakers to remove the phrase and replace it with “fetus,” arguing that term was the impartial and medically accurate choice. Arizona law, Yost told lawmakers, is clear that impartiality must be the legislature’s chief concern when approving summaries, and the courts have long ruled that they must not be “tinged with partisan coloring”.

“The statute sets impartiality as the north star,” he said.

By contrast, the phrase “unborn human being” carries with it political connotations and is often wielded by anti-abortion groups, Yost pointed out.

But Republican lawmakers pushed back, saying “fetus” was just as politically charged, calling it an insult to “unborn” children and claiming that the inflammatory phrase was included to ensure balance. House Speaker Ben Toma, who sought in April to block a bid to repeal a near-total abortion ban from 1864, likened the phrase’s inclusion to “splitting the baby,” in a reference to the biblical King Solomon story of compromise. Partisanship in the ballot measure’s description, Toma said, is unavoidable — and so the best way to satisfy both sides of the issue is to include language that represents them both.

“There is no way to avoid it,” he said. “Because using the word ‘fetus’ is partial, as well, for those of us on the pro-life side.”

Yost rebutted that “fetus” is not politically charged, but rather a medically accurate term widely used in both the health care space and by government agencies — and in Arizona law . And, he added, the place for partisan opinions is the arguments section of the voter publicity pamphlet, where supporters and opponents of ballot measures try to persuade voters.

I’m not a doctor. I don’t care what the medically accurate term is.

– House Speaker Ben Toma

Rep. Stephanie Stahl Hamilton, D-Tucson, pressed Toma on whether he considered a fetus to be substantially different from an “unborn human being,” in an attempt to persuade him that the two were the same and “fetus” should be upheld as the more neutral and medically correct term. Toma heatedly responded that his concern was not with medical accuracy, but with political connotations.

“I’m not a doctor,” he said. “I don’t care what the medically accurate term is. What I care about, in this particular case, is this gentleman is making the case that one of these terms — in his opinion — is charged, if you will, politically and the other one would be more technically accurate. And I was making the point that both of them are charged, depending on what side of this you’re on, so I stand by that point.”

Rep. Travis Grantham, R-Gilbert, grilled Yost on whether his request would, instead of helping lawyers comply with the laws governing voter pamphlet summaries, force the panel to break a different state law. Grantham asked whether removing the reference to an “unborn human being” would violate a 2021 fetal personhood law that mandates that all state laws be “interpreted and construed to acknowledge, on behalf of an unborn child at every stage of development,” all the rights and privileges of an Arizona citizen.

“This is the language of the law,” he said. “I almost feel like asking us to not honor the language of the law is more partisan than sticking with what’s actually law.”

While that law is technically still on the books and currently undergoing litigation, it remains blocked by a court order. That means it has no effect on any other laws and cannot be enforced.  And if the abortion rights ballot measure is approved by voters, it will be nullified.

Yost acknowledged that, while “unborn human being” exists in other statutes — it only appears twice in existing Arizona law — that has little bearing on the committee’s responsibility to approve impartial ballot proposal summaries. Lawmakers aren’t in any way limited from including partisan language in the laws they pass, Yost said, but the committee is clearly prohibited from doing the same when adopting ballot description language.

Rep. Teresa Martinez, R-Casa Grande, disagreed with Yost’s assessment of what constitutes partisan language, and said that, ultimately, the choice for what the final summary looks like is up to lawmakers.

“You have your language and I have mine, and I am the one with the vote,” she said.

What does the lawsuit say?

Democratic attorney Andy Gaona reiterated the campaign’s argument that state law mandates an “impartial analysis” of each ballot proposal. And, Gaona added, the courts have expanded on that understanding by declaring that the language can’t advocate for or against anything, and it can’t include “provocative phrasing.”

“As the court put it, ‘the purpose of the required analysis is to assist voters in rationally assessing an initiative proposal by providing a fair, neutral explanation of the proposal’s contents and the changes it would make if adopted,’” he wrote, citing a 2013 state supreme court case in which the legislature was ordered to revise its summary of a tax measure.

Gaona added that, even if the phrase “unborn human being” is accurate, as some lawmakers have claimed, the court should still strike it down because previous rulings have already determined that even accurate statements can violate the law’s requirement for impartiality.

On top of attempting to sway voters, the use of the phrase “unborn human being” is only used once, with fetus or fetal being used three times in later references in the body of the summary. That, Gaona wrote, creates an inconsistency that could confuse voters.

And while lawmakers have defended the use of the phrase as simply a citation of the same phrase being used in the 15-week law, Gaona pointed out that “fetus” is also present in several other statutes, and is used much more frequently .

In the end, he argued, the evidence favors the Arizona for Abortion Access Committee, and Maricopa County Superior Court should block the secretary of state from printing the legislature’s flawed summary and order lawmakers to write a new, neutral version. To do otherwise would jeopardize the rights of Arizonans to receive impartial information, according to Gaona.

“Without this Court’s intervention, Arizona voters will thus receive a publicity pamphlet in which the Council places its thumb on the electoral scale against a measure that the Council’s majority opposes,” he wrote. “On these facts, the judiciary must once again intervene to stop this legislative mischief from having any influence on the election and the public’s consideration.”

Alternatively, Gaona wrote, the court risks making it even more difficult for the state’s citizens to pass their own laws.

“The Legislature has already made it prohibitively expensive and exceedingly difficult to qualify a ballot initiative and ensure its passage, and proponents like the Committee should not also have to deal with the incalculable effects associated with the Council trying to influence the outcome through improper advocacy,” he wrote.

Along with a preliminary injunction to freeze the ballot summary from being added to the voter’s publicity pamphlet, the campaign is also requesting the reimbursement of their attorneys fees.

During Wednesday’s online news conference, Gaona said the litigation process is likely to go by quickly, as the court needs to ensure there is enough time for an appeal from either party as well as enough time for the legislature to convene a new council meeting if the abortion rights campaign succeeds.

In written statements, GOP legislative leaders doubled down on their decision, saying that including the phrase was unmotivated by political partisanship and the court will ultimately side with their interpretation.

“I am confident the court will agree that when we talk about abortion we are unmistakably talking about unborn children,” said Toma. “Arizona’s 15-week law reflects that fact. This lawsuit is frivolous.”

“We believe the Legislative Council drafted an unbiased description that accurately reflects the measure,” echoed President Warren Petersen. “We are confident that we will prevail. Voters will also win because they will have the information they need to make an informed decision.”

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