GOP lawmakers defend their controversial description of abortion initiative

PHOENIX — Their lawyer says Republican lawmakers did nothing wrong in using “unborn human being’’ in their description for voters of an abortion-rights initiative on Arizona’s November ballot.

The lawyer, Kory Langhofer, is telling a judge he should reject the claim by initiative proponents that the phrase is “medically unacceptable’’ and should be stricken from the analysis.

The judge, Christopher Whitten of Maricopa County Superior Court, is set to hear arguments this week over whether the Republican-controlled Legislative Council acted illegally when providing what is supposed to be an “impartial’’ analysis of the measure in a pamphlet the state mails to voters.

The other side argues the decision to use that phrase is “tinged with partisan coloring’’ because it is the description often used by abortion foes. The only neutral term would be “fetus,’’ which is medically definable, says attorney Andrew Gaona, representing Arizona for Abortion Access.

Langhofer counters that “fetus” has its own ideological slant, one preferred by abortion rights advocates.

Nothing in the legal fight will affect whether Proposition 139 will appear on the November ballot. Backers submitted more than twice as many signatures as needed to qualify.

The measure would guarantee in the state Constitution the right to terminate a pregnancy until fetal viability, generally considered between 22 and 24 weeks. It also would allow the procedure beyond that to protect a woman’s life or her physical or mental health.

If approved, it would override current state law that limits abortion to 15 weeks except in cases of medical emergencies.

At issue is what wording will appear in a pamphlet the Secretary of State’s Office mails to the homes of the more than 4 million registered voters. It contains what is supposed to be impartial descriptions by the Legislative Council of all 14 measures on the ballot — 11 put there by the Republican-controlled Legislature and three, including this one, submitted by voters. The pamphlet also contains pro and con arguments submitted by anyone willing to spend $75 to have them included.

Ganoa said GOP lawmakers deliberately used the phrase “unborn human being’’ because it is designed by abortion foes to stir up opposition to the procedure as well as to the ballot measure.

“They are putting … their thumb on the electoral scale to help advocate against this measure,’’ he said in filing suit.

Langhofer, in his legal response, said that’s ignoring that the Legislative Council, in describing what the initiative would do, is required to start by explaining the current law at issue.

In this case, he told Whitten, “unborn human being’’ are exactly the words in current state abortion law. He said that makes it proper to use that phrase in describing the effects of the ballot measure.

“An analysis that describes relevant existing laws by quoting them verbatim is the quintessence of an impartial summary,’’ Langhofer said.

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Anything beyond that, he said, would require the Legislative Council to analyze the policy issues of abortion. “That is not the council’s responsibility,’’ he said.

Gaona does not dispute the phrase is, in fact, in current law. “But the suggestion that statutory language can’t be ‘partial’ is nonsense,’’ he said.

Consider, he said, what might happen if a majority of the Legislature were made up of those opposed to the use of firearms and decided to change all references to “guns’’ in state statutes to “mass murder machines.’’

That would be within the power of the Legislature, Gaona said. But he said it still wouldn’t excuse the Legislative Council if it used that phrase when describing an initiative to change gun laws.

“If the shoe were on the (other) foot, the Republican legislators would be singing a very different tune,’’ he said.

Initiative supporters also maintain that “unborn human being’’ is not a medically acceptable and accurate term.

To prove his point, Gaona said he intends to call Dr. Patricia Habak, an obstetrician and gynecologist, to testify in court.

He told Whitten she will say “unborn human being’’ is not a phrase she ever has heard in scientific terms during her education, training, practice of medicine or in the education of the next generation of physicians. Gaona also said Habak will say that “fetus’’ and “embryo’’ are the “accepted medical terms in this area.’’

Langhofer told the judge that such testimony is irrelevant to the legal question of whether the Legislative Council wrote a legally impartial analysis.

It isn’t just Gaona and his client Arizona for Abortion Access that wants Whitten to reject the ballot description and order the Legislative Council to reword it.

In a separate legal filing, attorneys for the Democrats on the Legislative Council, who voted against the use of “unborn human being’’ in the analysis, filed their own objections Tuesday.

Whatever Whitten rules may not be the last word. Whichever side loses is likely to seek Arizona Supreme Court review.