By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — State lawmakers are free to use the words “unborn human being” when describing an initiative which would put a right to abortion in the Arizona Constitution.

In a brief order Wednesday, the Arizona Supreme Court ruled the decision by the Republican-controlled Legislative Council to use that phrase “substantially complies” with a requirement in state law that the panel provide an impartial analysis of all ballot measures. In doing so, the justices — at least the majority — rejected claims by Arizona for Abortion Access the language is biased and an effort to generate opposition to the initiative.

In issuing their decision, the justices overruled Maricopa Superior Court Judge Christopher Whitten, who ordered the phrase removed. He said it “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.”

Wednesday’s ruling is a setback for proponents of Proposition 139. They did not want that verbiage in the brochure being prepared by the Secretary of State that will be mailed ahead of the Nov. 5 election to the homes of the more than 4.1 million registered voters.

It comes as justices are facing an even bigger question: whether Arizonans will get a chance to vote on the measure at all. Arizona Right to Life is trying to convince the high court that a summary that initiative organizers put on the front page of initiative petitions misled some people into signing.
Wednesday’s 5-2 ruling by the justices was disappointing to initiative supporters.

“The phrase ‘unborn human being’ (is) a watchword for anti-abortion advocates with no basis in medicine or science,” said Dawn Penich, spokeswoman for Arizona for Abortion Access.

Attorneys for the group presented testimony at the trial court from Dr. Patricia Habak, a board certified obstetrician.

She told Whitten the phrase is not medically accepted and not used in teaching or in medical literature. Conversely, Habak said that “fetus” and “embryo” are the “accepted medical terms in this area.”

But attorney Kory Langhfer, representing the Republicans on the Legislative Council who approved the phrase, argued there’s nothing inherently biased in the those words.

Langhofer noted the current law that limits abortion to only 15 weeks — the measure Prop 139 would effectively repeal — uses those same words.
“An analysis that describes relevant existing laws by quoting them verbatim is the quintessence of an impartial summery,” he told the justices.

Langhofer also pointed out the Legislature has used same phrase in more than 40 other existing state laws.

“In this context, that phrase is not a pro-choice or a pro-life term,’’ he said. “It is a (ITALICS) legal (ROMAN) term.’’

Penich said the court’s ruling about what voters will see in the brochure being sent to their homes will have an impact.

“This means that Arizona voters won’t get to learn about the questions on their ballot in a fair, neutral and accurate way 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,” she said.

House Speaker Ben Toma, who chairs the Legislative Council, did agree on one point: he said what’s going to be in the brochure will have an impact. Toma, a foe of Proposition 139, said the use of those words “is intended to help voters understand current law.”

“Arizona’s 15-week law protects unborn children,” he said.

“The abortion initiative essentially allows unrestricted abortion up until birth,” Toma said. “It’s really that simple.”

Toma’s argument — similar to the legal challenge to the initiative filed by Arizona Right to Life — is based on the fact that, unlike current law, Prop 139 sets no hard and fast limit on when a pregnancy can be terminated.

Instead, it would constitutionality guarantee a “fundamental right to abortion” and prohibit restrictions to that right before fetal viability, currently medically understood to be between 22 and 24 weeks.

But it also would permit the procedure after that if, in the “good faith judgment” a treating health care professional concludes that it “is necessary to protect the life or physical or mental health of the pregnant individual.”

Justice John Lopez, writing for the majority, did not explain why he and his colleagues reached the conclusion that there’s nothing biased about using the phrase “unborn human being” in the description of the initiative, promising a written explanation “in due course.” There is no deadline for that.

Chief Justice Ann Scott Timmer and Justice James Beene dissented, saying they would have affirmed Whitten’s ruling. Here, too, though, they did not expand on their reasoning.

Justice Clint Bolick did not participate in the case.

His wife, Shawnna, is a senator and member of the Legislative Council who voted to approve “’unborn human being” in the initiative description. And that made her a defendant in the lawsuit against the council filed by Arizona for Abortion Access.

Retired Justice John Pelander was brought in to hear arguments in this case.