Court rules against abortion-rights backers, OKs 'unborn human' in ballot description

PHOENIX — Lawmakers are free to use the words “unborn human being’’ in a voters’ brochure when describing an initiative that would put a right to abortion in the Arizona Constitution, the state Supreme Court ruled.

In a brief order Wednesday, the court ruled the decision of the Republican-controlled Legislative Council to use that phrase “substantially complies’’ with a requirement in state law that the panel provide an impartial analysis of all ballot measures. In doing so, the justices — at least the majority — rejected claims by the group Arizona for Abortion Access that it is biased and an effort to generate opposition to the initiative.

The justices overruled Maricopa Superior Court Judge Christopher Whitten, who ordered the phrase removed. He said it “is packed with emotional and partisan meaning both for those who oppose abortion and for those who endorse a woman’s right to choose whether to have an abortion.’’

Wednesday’s 5-2 ruling is a setback for proponents of Proposition 139. They did not want that phrase in the brochure being prepared by the Secretary of State that will be mailed ahead of the Nov. 5 election to the homes of the more than 4.1 million registered voters.

And it comes as the justices are facing an even bigger question — whether Arizonans will get a chance to vote on the measure at all, after 577,971 signatures to put it on the ballot were found to be valid, far more than required. Arizona Right to Life is trying to convince the high court that a summary initiative organizers put on the front page of petitions misled some people into signing.

“The phrase ‘unborn human being’ (is) a watchword for anti-abortion advocates with no basis in medicine or science,’’ said Dawn Penich, spokeswoman for Arizona for Abortion Access.

The group had presented testimony at the trial court from Dr. Patricia Habak, a board-certified obstetrician.

She told Whitten the phrase is not medically accepted and not used in teaching or in medical literature. Habak said “fetus’’ and “embryo’’ are the “accepted medical terms in this area.’’

But attorney Kory Langhfer, representing the Republicans on the Legislative Council who approved the phrase, argued there’s nothing inherently biased in the words.

He noted that the current law limiting abortion to 15 weeks of pregnancy — the measure Prop. 139 would effectively repeal — uses those same words.

“An analysis that describes relevant existing laws by quoting them verbatim is the quintessence of an impartial summery,’’ he told the justices.

Langhofer also pointed out that the Legislature has used same phrase in more than 40 other existing state laws.

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“In this context, that phrase is not a pro-choice or a pro-life term,’’ he said. “It is a legal term.’’

Penich said the court’s ruling about what voters will see in the brochure being sent to their homes will have an impact.

“This means that Arizona voters won’t get to learn about the questions on their ballot in a fair, neutral and accurate way but will instead be subjected to biased, politically charged words developed not by experts but by anti-abortion special interests to manipulate voters and spread misinformation,’’ she said.

House Speaker Ben Toma, a foe of the proposition, said the use of those words “is intended to help voters understand current law.’’

“Arizona’s 15-week law protects unborn children,’’ he said. “The abortion initiative essentially allows unrestricted abortion up until birth.”

Toma’s argument — similar to the legal challenge to the initiative filed by Arizona Right to Life — is based on the fact that, unlike current law, Prop. 139 sets no hard and fast limit on when a pregnancy can be terminated.

Instead, it would constitutionality guarantee a “fundamental right to abortion’’ and prohibit restrictions to that right before fetal viability, currently medically understood to be between 22 and 24 weeks. But it also would permit the procedure after that if, in the “good faith judgment’’ of a treating health-care professional found it “necessary to protect the life or physical or mental health of the pregnant individual.’’

Justice John Lopez, writing for the majority, did not explain why he and his colleagues reached their conclusion, promising a written explanation “in due course.’’ There is no deadline for that.

Chief Justice Ann Scott Timmer and Justice James Beene dissented, saying they would have affirmed Whitten’s ruling. They also did not expand on their reasoning.

Justice Clint Bolick did not participate in the case.

His wife, Shawnna, is a senator and member of the Legislative Council who voted to approve “’unborn human being’’ in the initiative description. That made her a defendant in the lawsuit against the council filed by Arizona for Abortion Access.

Retired Justice John Pelander was brought in to hear arguments in this case.