PHOENIX (CN) — Arizona legislators can use the phrase “unborn human being” in place of “fetus” in a publicity pamphlet describing an abortion access ballot initiative, the state Supreme Court decided Wednesday.
Five of the seven justices on Arizona’s Supreme Court disagreed with a lower court’s finding that use of the phrase is partisan and emotionally charged in nature, determining that since the phrase is mentioned elsewhere in Arizona law, it was appropriate for the pamphlet.
The decision is only three pages long and doesn’t include a full legal analysis — a full opinion will be issued in the coming days — but the judges noted that the language used in the initiative description must be impartial under Arizona law.
"We conclude that the analysis provides the information required by A.R.S. § 19–124(C) and 'substantially complies' with the statute’s impartiality requirement,” the justices wrote.
Chief Justice Ann Scott Timmer and Justice James Beene dissented.
“The Arizona Supreme Court today reversed the trial court’s well-reasoned ruling and held that the phrase ‘unborn human being’ — a watchword for anti-abortion advocates with no basis in medicine or science — is somehow impartial and objective,” Arizona for Abortion Access, sponsor of the ballot initiative, wrote in a statement Wednesday afternoon.
“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,” the group added.
The Arizona Abortion Access Act received more than 800,000 signatures — more than twice the required amount — from Arizonans across the state. The initiative would amend the state constitution to enshrine a right to abortion up to fetal viability — typically 21 to 24 weeks — with notable exceptions for physical and mental health of the mother.
Current law bans all abortions after 15 weeks with no exception for rape or incest.
Before they cast their ballots, voters will have the chance to review a publicity pamphlet with detailed descriptions of each race and ballot initiative they’ll vote on. Written by a committee of state lawmakers called the Legislative Council, ballot initiative descriptions must be impartial.
Arizona for Abortion Access sued the Legislative Council in July after it completed its description, which uses “unborn human being” to describe a fetus. The group argued that the language presents an unfair emotional bias that disregards scientific terminology for “anti-abortion” rhetoric.
The nine Republican lawmakers on the council, represented in court by attorney Kory Langhofer, argued that the language is impartial because it’s factually true, and that the same language is used in Arizona's current abortion law.
Maricopa County Judge Christopher Whitten, who originally ruled in favor of the abortion rights group, was unconvinced by the Republicans’ argument.
“The court is not persuaded that every word chosen by the Legislature in every statute it enacts is intended to be neutral in character,” Whitten wrote in a July 25 order. “There is no requirement that the legislature chose its words in such a way, and plenty of evidence that they sometimes do not.
“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,” he wrote.
Arizona House Speaker Ben Toma, head of the Legislative Council, applauded the decision.
“The ballot analysis prepared by the legislative council is intended to help voters understand current law,” he said in a statement to Courthouse News. “Arizona’s 15-week law protects unborn children, while the abortion initiative essentially allows unrestricted abortions up until birth. It’s really that simple. The Arizona Supreme Court’s ruling is correct.”
Toma led the fight against Democrats to keep in place a 160-year-old total abortion ban that was reinstated by the state Supreme Court in April. The law was enjoined in court following the U.S. Supreme Court’s 1973 decision in Roe v. Wade, but came back into play after Roe was reversed in 2022.
Against Republicans’ best efforts, Governor Katie Hobbs signed a bill to repeal the ban in May.
Despite the adverse ruling, Arizona for Abortion Access remains confident that the people will support the initiative.
“We are deeply disappointed in this ruling, but will not be deterred from doing everything in our power to communicate to voters the truth of the Arizona Abortion Access Act and why it’s critical to vote YES to restore and protect access to abortion care this fall,” the group wrote.
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