By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Foes of a constitutional right of abortion are dropping part of their court challenge to keep the issue off the November ballot.

Arizona Right to Life on Tuesday refiled its lawsuit alleging Proposition 139 is legally flawed and cannot go to voters. Attorneys continue to contend the proposed constitutional amendment is “misleading.”

But gone from the new version are various other claims about legal improprieties in collecting the more than 820,000 signatures submitted by Arizona for Abortion Access. These included the failure of circulators to comply with state law.

Also stripped from the lawsuit is the allegation that some circulators “used fraudulent means to trick individuals into signing the petition by providing gross and misleading information about the amendment.”
What that does leave for the judge to decide is the argument that the whole petition drive is “faulty.”

But with the claims about insufficient valid signatures gone, that leaves Right to Life with the legal burden of proving the measure itself as well as the 200-word summary on petition sheets is so misleading that it would “create a significant danger of confusion or unfairness.” That would require showing courts that Arizonans might not understand the issue they are being asked to approve.

Right to Life will get a chance to make that case at a hearing Friday before Maricopa County Superior Court Judge Melissa Julian. But whatever she rules is virtually certain to be appealed to the Arizona Supreme Court.

Proposition 139, if approved, would say women have a constitutional right to terminate a pregnancy.

That would be pretty much unrestricted prior to fetal viability, considered between 22 and 24 weeks. But abortions would be allowed beyond that point to protect the life or physical or mental health of the mother.

What’s wrong with that, according to Arizona Right to Life, is that the measure has been sold as protecting abortion only up to viability.

“The amendment actually creates an unfettered right to obtain an abortion up to birth,” the challengers say, something not made clear.

Part of that is the exception for “mental health” which challenger say “is so broadly defined that almost nothing is prohibited.”

“Many voters may be willing to add their signature to a petition allowing abortion up to viability,” the lawsuit states.

“However, because the post-viability clause is so vague and poorly defined, many will not realize how broadly protections for late-term abortions are being expanded,” it continued. “This would very likely determine whether someone would put their signature on the petition.”

Then there’s the argument over the language that says restrictions on the procedure are permitted if there is a “compelling state interest.”

That is defined as improving or maintaining the health of the person seeking abortion care “consistent with accepted clinical standards of practice and evidence-based medicine.”

“This language erases all other compelling governmental interests except making the abortion safer for women,” the challengers say, ignoring any interest in protecting potential human life.

But the bigger concern is language in the initiative spelling out that any regulation cannot infringe on the pregnant woman’s “autonomous decision making.” What the ballot measure fails to make clear, the challengers say, it this even would allow a woman to go to someone who is not a licensed health care provider.

Foes say it would override parental consent laws, something that, at the very least, should have been spelled out in the 200-word summary on the face of the petitions that people were asked to sign.

Jill Norgaard, spokeswoman for Arizona Right to Life, said the decision to drop the claims about petition signers and circulators still leaves what she believes is the heart of the case.

“We are focusing on the language of this faulty petition and how it is extremely vague and misleading to Arizonans,” she said in a prepared statement.

In her own prepared statement, Dawn Penich, spokeswoman for Arizona for Abortion Access, said the decision by foes to drop the claims about circulators was long overdue.

She said attorneys pointed out to the group in five separate emails since July 19 their allegations were “baseless and obviously untrue.” Now, Penich said, her organization will seek to recover their legal fees for time spent preparing to defend the now-dropped charges.

As to what’s left, she called the arguments by Arizona Right to Life “flimsy.”

“Our opposition is willing to do and say anything — be it in court or to voters — in their attempt to rob Arizonans of our rights,” Penich said.