A group of anti-abortion activists is hoping the Arizona Supreme Court will step in and prevent voters in November from deciding whether to amend the state constitution to enshrine a right to abortion.
Arizona Right to Life not convincing A trial court judge declared that the Campaign for the Arizona Abortion Access Act misled voters who signed their petition to put it on the ballot. After their lawsuit was dismissed on August 6, the group immediately appealed the decision to the Supreme Court, asking the justices to overturn the trial judge’s decision and prevent the measure from going before voters.
In both the original lawsuit and the appeal, Arizona Right to Life attorneys claim that the 200-word summary shown to Arizonans who signed petitions to put the law on the ballot was so unlawfully misleading that it casts doubt on all of the signatures.
The Arizona Secretary of State’s office confirmed Monday that the Abortion Access Act enough voter signatures to make it onto the ballot. The campaign behind the bill, Arizona for Abortion Access, collected more than 820,000 signatures in total, and about 578,000 were certified valid, well over the nearly 384,000 needed to be approved.
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If voters approve the Abortion Access Act, it would guarantee a woman’s right to an abortion up until the fetus is viable, which is around 24 weeks’ gestation. Exceptions to this limit would be allowed if a health care provider determines it is necessary to protect a patient’s life or physical or mental health.
Jennifer Wright, attorney for Arizona Right to Life, wrote in the appeal that the summary shown to petition signers was misleading because it included the phrase “health care provider,” whereas the full text of the bill refers to the “treating health care provider” in describing who has the authority to determine that an abortion is necessary despite fetal viability.
Wright is a former Arizona deputy attorney general who supported Republican U.S. Senate candidate Kari Lake in a Defamation suit filed against her by Republican Maricopa County Recorder Stephen Richer. She has recently also in her suit to overturn the result of the 2022 gubernatorial election, which she lost to Democratic Governor Katie Hobbs.
Lawyers for the anti-abortion organization argued that the omission of the word “treatment” from the summary misled signers of the Abortion Access petition into believing that someone other than an abortion doctor would decide whether an abortion was justified beyond the point of fetal viability. But Judge Melissa Iyer Julian disagreed.
“Reasonable people understand that medical diagnoses and treatment plans are typically made by the health care provider who is actively treating a patient whose health is at risk,” Julian wrote. “For pregnant patients, this may be the patient’s primary care physician, obstetrician, or other health care providers, including someone who performs abortions.”
Wright went on to say that the exception based on the mother’s mental or physical health would essentially be a green light for any abortion up to birth – an inflammatory and inaccurate claim often made by anti-abortion activists.
Wright argued that the summary should include a description of how the Abortion Access Act would affect existing abortion legislation, but Julian disagreed on that point too.
“Concerns about the potential impact of this initiative on existing abortion regulations are not grounds for removing the initiative from the ballot. ‘The proper place to discuss the potential impact of an initiative is the political arena, in speeches, newspaper articles, advertisements, and other forums,'” Julian wrote, citing previous rulings.
Arizona currently has a 15-week pregnancy ban that will likely be lifted if the law passes.
The proposed constitutional amendment also includes a provision stating that “no law, regulation, policy, or practice shall be enacted or enforced” that restricts, denies, or impairs the right to an abortion before or after the viability of the fetus.
Arizona Right to Life contends that this provision, which states that any restrictions on the procedure “shall not interfere with the person’s autonomous decision-making,” essentially prohibits all regulations governing the procedure, including the requirement that it be performed by a licensed health care professional.
“For example, if a woman wants an unlicensed abortionist to perform an abortion, even one with no medical training, her desire for autonomous decision-making would seem to trump any government interests,” Wright wrote.
The group also claimed that it would allow abortions for serious reasons.
“This means, at a minimum, that the state cannot do anything to prevent abortions, even when they are performed for the worst eugenic or racist reasons, in a cruel manner that is particularly painful to the unborn human being, or at any time before birth,” Wright wrote.
Arizona Right to Life was one of several organizations behind the “Decline to Sign” campaign, which unsuccessfully tried to persuade voters not to support the Abortion Access Act’s attempt to qualify for the November ballot.
Dawn Penich, a spokeswoman for the Abortion Rights Initiative campaign, told the Arizona Mirror that no one was available to comment on the Supreme Court appeal on Tuesday.
However, Penich had previously criticized Arizona Right to Life for continuing to pursue arguments that had already been rejected by the court.
“This appeal shows once again that they are willing to do and say anything – no matter how desperate or dishonest – to strip Arizonans of their right to direct democracy,” she said in an emailed statement after the anti-abortion group said it would appeal the court’s ruling. “We hope the Arizona Supreme Court will grant us a fair and unbiased review and allow Arizona voters to have their say at the ballot box. Arizona for Abortion Access remains committed to giving Arizona voters the opportunity to restore and protect our right to access abortion without government overreach once and for all.”
Arizona Supreme Court Justice Bill Montgomery, who once accused Planned Parenthood of genocide, said he would not withdraw from an earlier case to decide whether the abortion rights initiative could be described as an “unborn human being” in a ballot information pamphlet sent to every voter in the state.
Arizona for Abortion Access argues that because of his opposition to Planned Parenthood and his history of using anti-abortion language, he cannot be impartial in decisions about the abortion rights measure.
Montgomery strongly disagreed, saying his strong feelings about abortion did not make him biased.
