Abortion foes sue, try to knock initiative off Arizona's ballot

PHOENIX — Abortion foes are going to court to try to prevent a public vote on putting a right to abortion in the Arizona Constitution.

The lawsuit filed late Wednesday by Arizona Right to Life contends the initiative is so poorly worded it is “inherently misleading,’’ giving petition signers an impression of what it would do that is different than the actual legal language.

Attorney Timothy La Sota said the difference is substantial enough that it could have affected someone’s decision whether to sign the petition. He said that means the entire measure should be removed from the Nov. 5 ballot.

But if Judge Melissa Julian of Maricopa County Superior Court doesn’t accept those arguments, La Sota has an alternative legal theory.

He claims about 200 people who gathered signatures did not meet one or more of the qualifications to circulate petitions. Reasons ranged from failing to properly register with the secretary of state, required of those who are paid circulators or not Arizona residents; to missing contact information or having a felony conviction, he said.

La Sota said some circulators “used fraudulent means’’ in describing the measure to voters.

He said that includes things like representing that the measure, if approved, would only allow abortions up until fetal viability, generally considered between 22 and 24 weeks of pregnancy. The initiative itself — which is required to be attached to petitions and is available to signers — says the procedure can be performed after that point to protect the life or physical or mental health of the mother.

Even if the judge finds problems with the circulators, that wouldn’t automatically mean the measure would be kicked off the ballot. The judge would have to make findings about each circulator and each petition to determine if the signatures they collected should be disqualified.

It would take a lot. Backers of what is known as the Arizona for Abortion Act said they submitted petitions with 823,685 signatures. Only 383,923 need to be found valid for the measure to qualify for the ballot.

In a prepared response, Dawn Pench, spokeswoman for Arizona for Abortion Access, called the complaints in the litigation “desperate attempts to silence the will of more than 820,000 Arizona voters.’’

All this comes as a separate legal fight is occurring in another Maricopa County courtroom over how the measure, which would be Proposition 139 on the November ballot, will be described to voters.

On Thursday, initiative supporters asked Judge Christopher Whitten to overrule a decision by the Republican-controlled Legislative Council to use the words “unborn human being’’ in the legally required summary.

Attorney Austin Yost contends the wording in the description, which will be sent to the homes of the more than 4 million registered voters, fails to meet the requirement it be “impartial.’’ He says the judge has the power to require the panel to use what he said is the medically correct term of “fetus.’’

To buttress his case, Yost solicited testimony from Dr. Patricia Habak, a board certified obstetrician and gynecologist. She told Whitten the phrase “unborn human being’’ is not medically accepted and not used in teaching or medical literature.

Habak conceded under questioning by Kory Langhofer, the attorney hired by GOP legislative leaders to defend the wording, that there are times a doctor might use such a phrase.

For example, Habak said that may be appropriate when advising a pregnant woman who is using drugs or smoking, who is further along in the pregnancy, “and have more of a thought of what they should be doing during pregnancy with respect to the outcome of the baby that’s going to be delivered.’’

Langhofer said that backs his argument that the law on drafting ballot explanations should not use technical terms.

Anyway, he said, the phrase “unborn human being’’ comes directly from the existing state law that allows abortions until 15 weeks of pregnancy, the law the initiative would overturn. He said lawmakers are entitled to use the same words when describing the change.

Back to homepage

Subscriber Login

Keep reading with a digital access subscription.

Subscribe now

Whitten took the matter under advisement.

What he rules about the wording, however, becomes relevant only if Proposition 139 is on the ballot, something the Arizona Right to Life lawsuit seeks to prevent.

The measure would place a provision in the Arizona Constitution declaring there is a “fundamental right to abortion’’ and barring the state from enacting any law, regulation, policy or practice that interferes with that right “unless justified by a compelling state interest that is achieved by the least restrictive means.’’

It would also bar post-viability restrictions if the treating physician believed the procedure was necessary to protect the life or physical or mental health of the pregnant individual. Also forbidden would be any law that penalizes an individual or entity for aiding someone in exercising those rights.

One of the issues in the lawsuit is the question of “compelling state interest’’ that would allow certain restrictions.

La Sota said the initiative describes it as anything done “for the limited purpose of improving or maintaining the health of an individual seeking abortion care, consistent with the accepted clinical standard of practice and evidence-based medicine.’’

The problem with that, he told Judge Julian, is it would override any other compelling governmental interest “except making the abortion safer for women.’’ La Sota said even the U.S. Supreme Court decision in Roe v. Wade, which legalized abortion until it was overturned, said the state “has still another important and legitimate interest in protecting the potentiality of human life.’’

“None of the other participants are recognized,’’ La Sota said, referring to the fetus.

The issues also include a requirement in the measure that regulations cannot “infringe on that person’s autonomous decision-making.’’

“At a minimum, this means the state can do nothing to stop the abortion, even if it is being done for the most vile of eugenic or racist reasons, is being done in a horrific manner that is particularly painful to the prenatal human, or is being done at any time up to birth,’’ La Sota wrote.

He contends the language about not interfering with a woman’s “autonomous’’ rights could be read to remove all regulations, including whether she wanted the procedure performed by someone with no training or education. He said it also would override existing laws that require minors seeking an abortion to get either parental consent or the approval of the judge.

Julian, however, could conclude that those arguments go more to the merits of the proposal, something within the purview of voters, versus any legal flaw in the initiative.

Technical issues with circulators, however, are more black and white.

For example, Arizona law says it is illegal to circulate petitions if a person has had a civil or criminal penalty imposed for violating state election laws in the past five years. Ditto those convinced of fraud, forgery or identity theft, or conviction of any felony if that person’s civil rights have not been restored.

Some, however, are more technical, such as La Sota’s complaint that the telephone number provided by the circulator is inoperative or not that person’s number.

But there also can be explanations. The requirement for a phone number is as of the time the person registers as a circulator and may have obtained a temporary cell phone. The fact the number is not in operation now may not be an indication of a law violation.