Foes drop some claims trying to knock abortion initiative off Arizona ballot

PHOENIX — Foes of a constitutional right to abortion are dropping part of their court challenge to keep the issue off the November ballot.

On Tuesday Arizona Right to Life refiled its lawsuit alleging that Proposition 139 is legally flawed and should not go to voters. The organization continues to contend the proposed constitutional amendment is “misleading.’’

But now gone from the lawsuit are various other claims about legal improprieties in collecting the more than 820,000 signatures submitted by Arizona for Abortion Access to put the initiative on the ballot.

Also stripped from the lawsuit is the allegation that some circulators “tricked” voters into signing the petitions by providing “gross and misleading information about the amendment.’’

What that leaves for a judge to decide is whether, as the foes argue, the whole petition drive was “faulty.”

But now that Right to Life no longer contends there aren’t enough valid signatures, the foes have the legal burden of proving the measure itself, as well as the 200-word summary on petition sheets, were so misleading they would “create a significant danger of confusion or unfairness.’’ That would require showing the courts that Arizonans might not understand the issue they are being asked to approve.

Right to Life will get a chance to make that case at a hearing Friday before Maricopa County Superior Court Judge Melissa Julian. But whatever she rules is virtually certain to be appealed to the Arizona Supreme Court.

Proposition 139, if approved, would enshrine a constitutional right in Arizona to terminate a pregnancy.

That would be pretty much unrestricted prior to fetal viability, considered between 22 and 24 weeks. Abortions would be allowed beyond that point to protect the life or physical or mental health of the mother.

Arizona Right to Life contends the measure has been sold as protecting abortion only up to viability.

“The amendment actually creates an unfettered right to obtain an abortion up to birth,’’ the challengers argue.

Initiative supporters acknowledge the initiative would create a right to post-viability abortions. But they say these would be only in the most extreme circumstances, a situation they said is best decided by a woman, her family and her doctor.

Right to Life, however, cite the exception for “mental health,’’ which they say “is so broadly defined that almost nothing is prohibited.’’

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“Many voters may be willing to add their signature to a petition allowing abortion up to viability,’’ the lawsuit states. “However, because the post-viability clause is so vague and poorly defined, many will not realize how broadly protections for late-term abortions are being expanded. This would very likely determine whether someone would put their signature on the petition.’’

The initiative also says restrictions on abortion would be permitted if there is a “compelling state interest.’’

That is defined as improving or maintaining the health of the person seeking abortion care “consistent with accepted clinical standards of practice and evidence-based medicine.’’

“This language erases all other compelling governmental interests except making the abortion safer for women,’’ ignoring any interest in protecting potential human life, the challengers say.

But the group’s bigger concern is language in the initiative spelling out that any regulation cannot infringe on the pregnant woman’s “autonomous decision making.’’ The ballot measure fails to make clear, the challengers say, that this would allow a woman to go to someone who is not a licensed health-care provider.

Foes say it also would override parental consent laws, which they say should have been spelled out in the 200-word summary on the face of the petitions voters were asked to sign.

Jill Norgaard, spokeswoman for Arizona Right to Life, said the decision to drop the claims about petition signers and circulators still leaves what she calls the heart of the case.

“We are focusing on the language of this faulty petition and how it is extremely vague and misleading to Arizonans,’’ she said in a prepared statement.

In her own prepared statement, Dawn Penich, spokeswoman for Arizona for Abortion Access, said the foes’ decision to drop the claims about circulators was long overdue.

She said attorneys pointed out to the group in five separate emails since July 19 that their allegations were “baseless and obviously untrue.’’ Now, Penich said, her organization will seek to recover its legal fees for time spent preparing to defend the now-dropped charges.

As to what’s left, she called the arguments by Arizona Right to Life “flimsy.’’

“Our opposition is willing to do and say anything — be it in court or to voters — in their attempt to rob Arizonans of our rights,’’ Penich said.