By Howard Fischer
Mail | X: @azcapmedia

PHOENIX - Arizonans will be able to vote whether they want to put a right to abortion in the state constitution.

In an order late Tuesday, the Arizona Supreme Court rejected arguments by Arizona Right to Life that a description of the key provisions in Proposition 139 which was attached to petitions misled people into signing it. The group argued that it was legally flawed because it failed to detail the impact that its approval would have on all existing abortion laws or regulations.

"Moreover, a reasonable person would necessarily understand that existing laws that fail the prescribed tests would be invalid rather than continue in effect,'' wrote Chief Justice Ann Scott Timmer for the unanimous court.

That specifically includes overriding existing laws, which allow abortions until the 15th week of pregnancy.

The justices were no more impressed by complaints by the anti-abortion foes that anyone reading the description would not understand who would make decisions about when a woman could terminate a fetus beyond the point of viability.

As crafted, the measure spells out that state interference is generally barred prior to viability, considered between 22 and 24 weeks. After that, the procedure would be allowed if "in the good faith judgment of a treating health care professional'' the procedure "is necessary to protect the life or physical or mental health of the pregnant individual.''

Opponents said part of what was not described for signers is the possibility of "late-term'' abortions. And they argued that what also is missing is that it could be the abortion provider - who they argued in court would profit from a decision - who would decide when a post-viability abortion was allowed.

"A reasonable person would assume that the 'health care provider' tasked with determining fetal viability would ordinarily be the pregnant woman's own treating physician, who is, by virtue of such person's profession, guided by ethical codes and presumably acts in good faith to preserve her health,'' Timmer wrote.

And the court brushed aside the broader arguments that the initiative itself is misleading.

"But that is not the issue before us,'' the chief justice wrote.

"The proper place to argue about the potential impact of an initiative is in the political areas, in speeches, newspaper articles, advertisements and other forums,'' she said.

Timmer stressed that Tuesday's ruling is unrelated to the views of the justices on the underlying issues.

"Our resolution of this appeal does not rest on the justices' morals or public policy views regarding abortion,'' she said. "Rather, our task is to apply the law governing initiative descriptions fairly and impartially in the context of the people's exercise of the legislative power through the initiative.''

There was no immediate response from Arizona Right to Life.

But in a prepared statement, Arizona for Abortion Access, which is sponsoring the measure, cheered the ruling.

"We are confident that this fall Arizona voters will make history by establishing a fundamental right to abortion in our state, once and for all,'' spokesperson Dawn Penich said.

As of the most recent report, which runs through mid July, the group had raised $23.2 million. After expenses, including paid circulators, it reported having $9.7 million sample of the more than 820,000 signatures turned in by Arizona for Abortion Access on July 3 found that 577,971 of them are valid. That is far more than the 383,923 needed to qualify for the ballot.