Arizona abortion measure dispute over 'improper' phrase goes to court

PHOENIX — Advocates of a constitutional right to abortion are asking a judge to override how Republican lawmakers are describing their ballot initiative to voters.

A lawsuit filed Wednesday charges that the GOP-dominated Legislative Council is violating state law by using the phrase "unborn human being'' in its summary of the measure, which will be in Arizona's official election pamphlet sent to voters.

It should instead use the word "fetus," the term that is medically correct, Arizona for Abortion Access is telling a Maricopa County Superior Court judge. 

The group's attorney, Andrew Gaona, said Republican lawmakers are deliberately using the other phrase because it is politically charged, designed by abortion foes to stir up opposition to the procedure as well as to the measure on the November ballot. It is not a medically accurate phrase, the group said. 

"They are putting … their thumb on the electoral scale to help advocate against this measure,'' he said.

But House Speaker Ben Toma told Capitol Media Services he doesn't think the legal challenge to the wording will succeed. 

"I am confident the court will agree that when we talk about abortion we are unmistakably talking about unborn children,'' said the Peoria Republican. He called the lawsuit "frivolous.''

The issue surrounds what voters will be told by the state about the initiative.

The initiative seeks to put a provision in the state constitution guaranteeing the right to terminate a pregnancy for any reason prior to fetal viability, generally considered between 22 and 24 weeks. If approved in November, it also would permit abortions beyond that to protect a woman's life as well as physical or mental heath.

Backers submitted more than 823,000 signatures to put the issue to voters, a figure that translates out to more than one out of every five registered voters. The petitions are now being reviewed by election officials to ensure that at least 383,923 are valid.

A state law requires the Legislative Council, composed of state lawmakers, to write "an impartial analysis of the provision of each ballot proposal.'' That summary of each measure is then put into a pamphlet that is mailed to the homes of the more than 4 million registered voters.

Arizona for Abortion Access and Gaona are asking a judge to rule that the phrase "unborn human being'' violates that law.

Toma pointed out that language already exists in the current state law that allows abortions through 15 weeks of pregnancy. That is the statute initiative supporters hope to convince voters to override with the constitutional amendment.

But Gaona said that doesn't undermine his claim that the wording violates what the law mandates for ballot explanations.

"It does not matter what the statute actually says, the term it uses,'' he said of the current law. "Legislators can pick whatever language they want when they use terms like that'' in writing laws. 

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That linguistic freedom does not, however, extend to lawmakers when they are fulfilling their legal duty to prepare "impartial'' explanations of all the measures on the ballot, both those they favor and put there, and those placed there by citizen groups they may oppose, Gaona said.

He also pointed out there are other statutes that do use the word "fetus,'' showing there is a recognition of the validity of that term in Arizona law, he said.

Similar statements were made Monday by attorneys for the initiative effort when the Legislative Council was adopting the ballot explanations. But those arguments were rejected by all GOP lawmakers who make up the majority of the panel.

Toma, for example, suggested at the time that the use of the word "fetus'' would be political.

"I think that you would grant that for many of us, we do in fact consider it an unborn human being,'' Toma said. He suggested that the fact the description uses both terms could be considered a compromise — something he said could be considered "splitting the baby,'' at least in the concept of the wisdom of Solomon.

"So it’s kind of using it both ways, because for us it's not just a fetus, for us" it is "at least a potential human being, if not an actual human being,'' Toma said. He said both terms could be considered "charged depending on what side you're on.''

"I'm not a doctor,'' he said. "I don't care what the medically accurate term is.''

There also was a comment by Senate Majority Leader Sonny Borrelli, R-Lake Havasu City, who during the discussion Monday asked Austin Yost, another attorney for initiative supporters, "An unborn horse, is that a fetus or is it an unborn horse?''

And House Majority Whip Theresa Martinez, R-Casa Grande, said the term "fetus'' is "an insult to an unborn baby.''

Gaona, in the lawsuit, said leaving the offending word in there would undermine the efforts of initiative supporters to get the measure approved in November.

He said rules adopted by the Legislature have "already made it prohibitively expensive and exceedingly difficult to qualify a ballot initiative and ensure its passage.'''

"Proponents like the (Arizona for Abortion Access) Committee should not also have to deal with the incalculable effects associated with the (Legislative) Council trying to influence the outcome through improper advocacy,'' Gaona wrote.

No date has been set for a hearing.

But Aaron Thacker, spokesman for the Secretary of State's Office, said the pamphlet has to go to the printer by Aug. 29. That means the case — along with the anticipated appeals by whichever side loses in Superior Court — needs to be resolved by then.