Just a week after announcing their official placement on the Arizona’s ballot, a measure expanding abortion access faces a reckoning with the state’s highest court.
Arizona for Abortion Access had secured a place on the ballot . Prop. 139, which supporters say would prohibit a state agency or government from interfering with an individual’s right to abortion until fetal viability, as determined by a healthcare professional. Exceptions can also be made after fetal viability if the individual’s physical or mental health is in danger.
Although the petition signatures have been verified for the proposition, Arizona Right to Life challenged the measure saying the signatures are not valid due to misleading language on the petition.
“Their faulty abortion distortion petition is misleading,” reads an Aug. 14 news release from Arizona Right to Life. “Despite AAA’s public claims that the initiative only protects the right to an abortion through viability, Austin Yost, the AAA attorney, admitted in Superior Court that ‘the initiative would establish a fundamental right to abortion in the Arizona Constitution and would prevent the State from denying, restricting, or interfering with this fundamental right in specific circumstances both before and after fetal viability.’”
Arizona for Abortion Access initially won the lawsuit in trial court, but Arizona Right to Life appealed, taking the issue up in the Arizona Supreme Court. Some Republicans filed briefs in support of the challenge.
“The brief argues that the initiative’s vague and misleading language conceals its true impact: stripping Arizona courts of their power to apply traditional legal standards to abortion legislation,” reads an Aug. 16 press release from the Arizona House of Representatives. “This would elevate abortion above existing fundamental rights by narrowly defining what constitutes a ‘compelling state interest.’”
The brief outlines the process in which amendments are enacted in Arizona when it comes to legislators and citizens. It argues against the ability for voters to enact legislation without legislative power, saying that members of the legislature and congress must go through a robust vetting process when proposing constitutional amendments.
“It is folly to imagine that any voter solicited for their signature in a parking lot could perform an equally thorough vetting process on the spot no matter how informed or capable,” reads the brief. “Representative Parker thus has an interest in making sure that the people exercise their power of initiative only in a fully informed fashion, as the measure in question will permanently constrain the ability of members of her body to protect the public health and safety.”
The brief claims that the amendment could have undesired consequences that the petition did not accurately portray to them.
“Particularly, she is concerned voters will find themselves surprised and frustrated that members of the Arizona House of Representatives are no longer able to enact the commonsense regulations on abortion that the public would expect,” reads the brief. “For example, those who signed the petition without being fully informed might be confused as to why the House can no longer enact a regulation requiring an abortion not to be undertaken solely due to the race or gender of the child. Because the description of Arizona Abortion Access Act (and the Act itself) failed to inform signatories (and fails to inform potential voters) that the Act will strip courts of their power to apply traditional strict-scrutiny factors when considering abortion legislation as opposed to other fundamental rights—which is a principal provision of the Act—this Court should reverse the lower court’s ruling.”
Arizona for Abortion Access filed a brief in response to the appeal, stating that the language on the petition was not misleading and that it is not possible to anticipate all consequences of the amendment.
“Plaintiff thus urges this Court to require initiative sponsors to use a crystal ball and predict the future about all the potential consequences that an initiative could produce and to describe them in 200 words or less along with the initiative’s principal provisions,” reads the brief. “This argument fails on every level.”
Arizona for Abortion Access argued that the terms Arizona Right to Life has claimed to be misleading, can be clarified if people refer to the actual text of the amendment.
This is not the first lawsuit concerning misleading language on petitions. There were many in Arizona leading to the ruling Molera v. Hobbs in 2020. Arizona for Abortion Access cited the ruling to defend their petition language.
Molera v. Hobbs determined that courts apply a two-step framework when looking at an initiative’s description. First, the description must describe the “principal provisions,” meaning the most important and consequential features and second, the description must “accurately communicate the general objectives of the initiative.
Arizona for Abortion Access argues that they comply with this framework. Additionally, they state that the petitions included the statutorily required notice that says the description “may not include every provision contained in the measure,” and that voters have the right and ability to read the full text before signing.
Arizona Right to Life’s first claim of misleading language was that the description did not include the word “treating” before healthcare providers, creating opportunity for any healthcare provider (dentists, chiropractors, etc.) to perform an abortion. Arizona for Abortion Access argued that the initiative uses the term, “treating healthcare professional” twice and that “a reasonable person would know that the person deciding, for instance, whether an abortion is ‘necessary to protect the life or physical or mental health’ of the pregnant person is the health care provider treating the pregnant person,’” when it comes to the language on the petition, according to the brief.
The other claim of misleading language made was that the description omits the term “good faith judgments.” Arizona for Abortion Access again said this term is present in the actual initiative text and that “a reasonable person would know that a healthcare provider is making good-faith – rather than bad-faith – determinations about patients’ healthcare,” reads the brief.
Arizona Right to Life stands by their claims that the description is misleading.
“The language is meant to be vague in order to allow for the broadest expansion in the interpretation,” reads the Arizona Right to Life press release.
If Arizona Right to Life wins the lawsuit in the Supreme Court, the petition signatures would then be void and the proposition taken off the ballot. However, according to the Secretary of State’s office, the pamphlet that accompanies the ballots must be submitted by Aug. 29 to be printed in November, meaning that this case will have to be resolved by then.
