Arizona Supreme Court rules voter pamphlet can call fetus 'unborn human being'

Aug. 15 (UPI) -- The Arizona Supreme Court ruled Wednesday that the term "unborn human being" can be used on a voter guide providing information about a ballot measure to constitutionalize the right to an abortion.

The court overruled the decision of a Maricopa County judge, ruling the phrase "unborn human being" meets the legal standard to be used on the pamphlet.

The Arizona Legislative Council drafts and approves the language used in this pamphlet. The joint committee is meant to draft the language of bills and perform research in a nonpartisan way. Ahead of elections it dictates the language that will appear in a pamphlet for voters to help them better understand the ballot initiatives that will be before them in November.

The council adopted the term "unborn human being" to be included in the pamphlet to inform voters about Proposition 139. The term, and terms like it, are typically used by organizations opposed to abortion access. The medically recognized term during the gestational stage is fetus.

Proposition 139 is an amendment that would guarantee the right to seek an abortion up to fetal viability, around 23 to 24 weeks of gestation. This was the standard in Arizona before the Dobbs decision in 2022.

State Rep. Nancy Gutierrez is one of the six Democrats on the council, along with eight Republicans. She and other Democrats argued that the term approved by their Republican counterparts is "inflammatory" and not neutral.

Republicans argued that "fetus" is not a specific enough term.

"Our voices are not heard often in committee," Gutierrez told UPI. "They overruled us like they did every single point on the ballot measures that day."

Dawn Penich, communications director for Arizona for Abortion Access, told UPI using the term "unborn human being" is an attempt to bias voters against the amendment.

"They have every right to do that in their own mailers and campaign commercials," she said. "They cannot do that in what is supposed to be an objective and impartial document."

The office of Secretary of State Adrian Fontes reported Monday that the Arizona Abortion Access Act petition cleared the required 383,923 valid signatures to put Proposition 139 before voters. It did so with 577,971 signatures.

Arizona Right to Life, a group opposing the measure, has taken its challenge to the Supreme Court.

Arizona Right to Life has been running a "Decline to Sign" campaign opposite the petition. Following that failed attempt to halt the constitutional amendment, it is arguing that the petition was "misleading."

"Their faulty abortion distortion petition is misleading," Jill Norgaard, board member for Arizona Right to Life, said in a statement. "Austin Yost, AAA attorney stated in Superior Court that the Initiative has 'unrestricted abortion up to and after fetal viability' -- a statement clouded in the language of the Initiative."

Norgaard did not respond to requests for an interview.

The lawsuit, filed against Fontes and Arizona for Abortion Access -- the group that headed the petition effort -- comes with a request for an expedited decision. It is pushing for a decision to come down before the ballot printing deadline on Aug. 22.

Despite the challenge, proponents for the amendment are confident it will be on the ballot and it will pass.

"We feel really confident that the same enthusiasm that got us to that historic number of signatures is going to show up on election day," Penich said.

The U.S. Supreme Court's decision to overturn Roe vs. Wade put Arizona and several other states at the center of what Penich describes as a "judicial whiplash." Healthcare providers and women seeking reproductive care have been caught in it through a sometimes quickly changing legal landscape.

Arizona adopted a 15-week abortion ban and for a time took up a Civil War-era ban on nearly all abortions. Gov. Katie Hobbs signed legislation to repeal the 1864 law adopted by the state supreme court.

The back-and-forth has caused some pregnant women to struggle finding appropriate prenatal care as clinics struggle to keep up, Penich said.

"We want to make sure we get out of this political flip-flopping," Penich said. "People are tired of it."