Judge nixes lawmakers' 'partisan' description of Arizona abortion initiative

Capitol Media Services

PHOENIX — A judge ordered the Republican-controlled Legislative Council Friday to reword its summary for voters of the abortion-rights initiative.

“The term ‘unborn human being’ 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,’’ wrote Maricopa County Superior Court Judge Christopher Whitten. He ordered the council to remove the phrase from the brochure describing all ballot measures that will be mailed to the more than 4 million registered voters ahead of the Nov. 5 general election.

Arizona law requires the council to provide an “impartial analysis” of ballot measures.

Whitten, however, spurned a request by Arizona for Abortion Access, the group that sued over the wording, to direct the council to replace the phrase with the word “fetus.’’

The judge said it is the job of the council, not a judge, to specifically choose words that comply with the law.

Friday’s ruling will not be the last word.

“The ruling is just plain wrong and clearly partisan,’’ said House Speaker Ben Toma, a Peoria Republican, abortion foe and candidate for Congress. “We are appealing.’’

But proponents of the ballot measure, Proposition 139, cheered the ruling.

“We are pleased to be one step closer to making sure Arizona voters get accurate and impartial information about our citizen-led effort to restore abortion access before they vote this fall,’’ said Dawn Penich, spokeswoman for Arizona for Abortion Access.

What Whitten decided could be moot, however.

Arizona Right to Life has filed a separate lawsuit arguing that the measure should not be on the ballot at all.

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The group’s attorney Timothy La Sota contends the measure’s wording, as well as the summary prepared by proponents that appears on the first page, are inherently misleading. He said that means some people may not have understood what they were signing on petitions to put the initiative on the ballot.

La Sota did not identify anyone who he contends was misled. Nor did he mention that the full wording of the initiative is required to be attached to each petition if would-be signers want to read it.

He is asking Maricopa County Superior Court Judge Melissa Julian should toss out all of the 823,685 signatures.

Also, he said there are close to 200 circulators whose signatures should not be counted based on his claims they were legally unqualified to gather names on the petitions. But he does not does not spell out how many of the signatures he believes Julian should toss.

That number is crucial: Only 383,923 of the signatures submitted need to be found valid to qualify for the ballot.

The hearing on that issue won’t occur until next week at the earliest.

There is no hard evidence on the importance and effect of the question of how a ballot measure is described by the council.

The same pamphlet for voters also will contain multiple 300-word arguments submitted by supporters and foes of each measure. The secretary of state’s office, which publishes it, does not edit those comments, requiring only that those making the arguments pay a $75 filing fee.

On top of that, both sides are expected to spend millions of dollars in commercials and other publicity on the election campaign.

But Arizona for Abortion Access thought the issue important enough to take the case to court. They called Dr. Patricia Habak, a board certified obstetrician and gynecologist, to tell Whitten the phrase “unborn human being’’ is not medically accepted and not used in teaching or in medical literature.