Arizona justices rule abortion measure will be on Nov. ballot

PHOENIX — Arizonans will be able to vote in November on whether to put a right to abortion in the state constitution.

In an order late Tuesday, the Arizona Supreme Court rejected arguments by Arizona Right to Life that a description of the key provisions in Proposition 139, which was attached to petitions, misled people into signing the initiative. The group argued the description was legally flawed because it failed to detail the impact approval would have on all existing abortion laws or regulations.

“A reasonable person would necessarily understand that existing laws that fail the prescribed tests would be invalid rather than continue in effect,’’ wrote Chief Justice Ann Scott Timmer for the unanimous court.

That specifically includes overriding existing laws that allow abortions until the 15th week of pregnancy.

The justices were no more impressed by complaints by the abortion foes that anyone reading the description would not understand who would make decisions about when a woman could terminate a pregnancy beyond the point of fetal viability.

The initiative spells out that state interference is generally barred prior to viability, considered between 22 and 24 weeks. After that, the procedure would be allowed 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.’’

Opponents said part of what was not described for signers is that it could be the abortion provider, whom they argued in court would profit from a decision, who would decide when a post-viability abortion was allowed.

Timmer and the court said that description isn't needed. “A reasonable person would assume that the ‘health care provider’ tasked with determining fetal viability would ordinarily be the pregnant woman’s own treating physician, who is, by virtue of such person’s profession, guided by ethical codes and presumably acts in good faith to preserve her health,’’ Timmer wrote.

The court said it didn’t take up broader arguments that the initiative itself is misleading. “That is not the issue before us,’’ the chief justice wrote. “The proper place to argue about the potential impact of an initiative is in the political areas, in speeches, newspaper articles, advertisements and other forums.”

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Timmer stressed that Tuesday’s ruling is unrelated to the views of the justices on the underlying issues.

“Our resolution of this appeal does not rest on the justices’ morals or public policy views regarding abortion,’’ she said. “Rather, our task is to apply the law governing initiative descriptions fairly and impartially in the context of the people’s exercise of the legislative power through the initiative.’’

The initiative had more than 577,971 valid signatures from voters, far more than 383,923 needed to qualify for the ballot, election officials said.

There was no immediate response from Arizona Right to Life.

Arizona for Abortion Access, which is sponsoring the measure, cheered the ruling.

“We are confident that this fall Arizona voters will make history by establishing a fundamental right to abortion in our state, once and for all,’’ said spokeswoman Dawn Penich.

As of the most recent report, which runs through mid-July, the group had raised $23.2 million. After expenses, including paid circulators, it reported having $9.7 million.