Arizona Right to Life asks high court to block abortion initiative

PHOENIX — Rebuffed by a trial judge, Arizona Right to Life is trying to convince the state Supreme Court to block voters from deciding whether to put a right to abortion in the state Constitution.

In new legal briefs, attorney Jennifer Wright contends that some of the more than 820,000 people who signed the petition to put Proposition 139 on the ballot may have been misled. She told the justices the legally required summary that was attached to the petitions omitted certain information which “could materially impact whether a person would sign the petition.’’

Wright does not say how many of those who signed the petition may have been misled. But she contends just the possibility that some people might not have signed if they had more information is sufficient to take the measure off the Nov. 5 ballot.

The arguments in the petition to the high court are not new. They are a virtual carbon copy of the arguments presented to — and rejected by — Maricopa County Superior Court Judge Melissa Julian.

In her Aug. 2 ruling, Julian went through each of the arguments Wright presented. In each case, the trial judge said she was not persuaded the wording in the summary was misleading or that it left out provisions that might have given signers second thoughts.

Now it is up to the Supreme Court to decide.

This comes as Secretary of State Adrian Fontes announced that the legally required random sample of the signatures turned in by Arizona for Abortion Access on July 3 found that 577,971 of them are valid. That leaves the initiative with far more than the 383,923 needed to qualify for the ballot.

If approved by voters, Prop. 139 would amend the Arizona Constitution to provide a “fundamental right to abortion.’’

That specifically includes a prohibition against restrictions on that right before fetal viability, generally defined as between 22 and 24 weeks. It also bars state interference after that point 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.’’

Wright said the summary — which state law requires to be attached to each petition — omits what she argues is information a signer might find critical.

One, she said, is that the summary does not mention the verbiage in the initiative about “the good faith judgment of a treating health care professional’’ to determine when a post-viability abortion could be performed. Instead, it mentions only that such procedures can be done based on determinations of “a health care provider.’’

She contends those words of “treating’’ and “good faith judgment’’ — which are in the amendment but not in the description shown to would-be petition signers — are key.

She contends they reveal the objective and principal purposes of Prop. 139 — “that the abortion provider may perform a post-viability abortion based solely on the provider’s subjective opinion.’’ To emphasize that, she argued the decision would be made by the abortion provider who “generally will have a financial incentive to find that an unborn child is not viable or if the child is, that an exception applies.’’

“Untold number of signers were misled and signed believing the amendment relied on objective-based medical standards,’’ Wright said.

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Julian didn’t buy that argument.

“Reasonable people understand that medical diagnoses and treatment plans are typically determined by the medical provider who is actively treating a patient whose health is at issue,’’ the judge wrote.

“For pregnant patients, this could include the patient’s primary care, obstetrical, or other medical providers, including one who provide abortions,’’ Julian continued. “In short, when read in context with the entire description, the word ‘health care provider’ accurately refers to those medical professionals who are treating pregnant individuals and are, therefore, in a position to make medical determinations regarding their health.’’

Wright separately noted that the initiative itself spells out that the state cannot adopt any law or regulation that “penalizes any individual or entity for aiding or assisting a pregnant individual in exercising the individual’s right to abortion.’’

That is not mentioned in the summary, Wright said. She said that failed to inform would-be signers that the amendment, if approved, would invalidate existing abortion regulations and prevent new ones.

Julian disagreed.

She noted that the summary does use the phrase “compelling governmental interest’’ to describe regulations that would remain. And she said a “fair reading’’ of the summary suggests there are areas where the state could still regulate, such as requiring that abortions be performed by qualified medical professionals and that the procedure be done in sanitary facilities.

Wright, however, told the justices that fails to inform signers of other changes that would occur if Prop. 139 were to become law.

One, she said, is that the current law limiting legal abortions to 15 weeks would go away.

She also contends the wording guaranteeing the right to abortion also left signers unaware it would invalidate current law that says minors cannot have an abortion without parental consent or judicial approval.

Julian, for her part, did not see any of this as a legal bar to Prop. 139 going on the ballot.

“Arizona courts have never required an initiative description to explain all potential effects of a measure,’’ she wrote. Anyway, the judge said, the question of whether the amendment would overrule any specific state law is one that would have to be worked out later, through separate litigation, if the initiative is approved.

Proponents of the measure have to file their response to the Arizona Right to Life court filings later this week.