Photo by Jim Small | Arizona Mirror
Nearly eight months after the Arizona Supreme Court allowed “unborn human being” to be included in a description of the state’s abortion rights initiative, the court explained why it determined the phrase wasn’t politically biased.
In a 24-page opinion, Justice Kathryn King wrote that a Republican-controlled legislative panel didn’t violate state law when it approved a summary of the Arizona Abortion Access Act that started off with a sentence that included the words “unborn human being” because it was simply quoting existing law.
The court ruled 5-2 to let the Republican-crafted language stand.
“The reference to ‘unborn human being’ when describing ‘current state law’ does not depart from or inaccurately describe the text of existing law or the proposed measure; does not contain extraneous adjectives, adverbs or commentary chosen by the (Legislative) Council; does not omit relevant contextual information; and does not selectively emphasize one omission in the initiative to the exclusion of others,” King wrote. “In this case, the Council recited the precise term used in existing law to illustrate the changes the Initiative would make if adopted.”
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In a dissenting opinion, Justice Ann Scott Timmer wrote that quoting state law doesn’t make the description impartial if the law being quoted was written to advance an ideological viewpoint.
For instance, she wrote, lawmakers referring to a fetus as a “sweet, innocent baby” in state law wouldn’t automatically make that term somehow neutral.
Step back: GOP lawmakers and abortion advocates grapple over what to send to voters
State law requires that the Legislative Council, a panel composed of lawmakers from both parties but controlled by the GOP majority, draft summaries of each ballot measure for a voter publicity pamphlet, which is meant to give Arizonans a quick rundown of what they’ll be voting for in the next election. That same law mandates those summaries be impartial, and the courts have long held that language “tinged with partisan coloring” is unlawful. Last year, the panel, made up of eight Republicans and six Democrats, approved a description of the Arizona Abortion Access Act that included the phrase “unborn human being” in the first sentence.
The Arizona for Abortion Access Committee quickly took the legislative panel to court, arguing that the summary should be thrown out and rewritten with “unborn human being” replaced by the neutral and medically accurate term “fetus.” In legal filings, Republicans claimed that “unborn human being” is impartial because it’s pulled directly from the 2022 law prohibiting abortions after 15 weeks that would be overturned if the initiative passed.
While Arizona law demands impartiality in publicity pamphlet summaries, it also allows for a description of how proposed ballot measures might affect current laws.
A Maricopa County Superior Court judge sided with the abortion rights group, writing that the term is “packed with emotional and partisan meaning” — something that Arizona courts, including the state’s highest court, have long rejected. Less than a month later, the state Supreme Court overturned that ruling.
Despite what abortion advocates viewed as an attempt from anti-abortion Republicans to put “its thumb on the electoral scale,” an overwhelming majority of Arizona voters cast their ballots in November in favor of Proposition 139, enshrining it in the Arizona Constitution and making the procedure a fundamental right.
What’s the reasoning behind the high court’s majority opinion?
The court’s majority — Justices King, John Lopez, Bill Montgomery, Robert Brutinel and John Pelander — agreed with Republicans that quoting existing law is as impartial as it gets, and “fetus” is just as loaded a term as “unborn human being.”
Notably, King and Lopez were among the four justices who reinstated a near-total abortion ban from 1864 last year, and Montgomery faced criticism when he refused to recuse himself from the case in light of his past statements that Planned Parenthood was responsible for overseeing the “greatest generational genocide known to man.” The Arizona branch of Planned Parenthood was one of the main groups involved with the creation and advocacy for the abortion rights initiative.
King, writing for the majority, pointed out that the summary description for Prop. 139 “began by accurately describing” the 15-week law and ended by outlining the impacts of the ballot measure, and even used the proposition’s own language, including the terms “fetus” and “fetal.” On top of that, King wrote, another Arizona law recognizes a “human being” starting at conception and even widely accepted dictionary definitions refer to unborn human beings when explaining what a fetus is. (That law was also part of the legislation that enacted the 15-week abortion ban.)
She chided abortion groups for fixating on the phrase and said the courts have historically been concerned with Legislative Council analyses that are biased or inaccurate, and not with whether a specific term, especially one that is already enshrined in state law, is appropriate.
“This Court has never found that an analysis violated the impartiality requirement where, as here, the Council used precise statutory language to describe existing law and then explained the text of the proposed measure and its effects,” she wrote. “Instead, this Court has concluded that analyses were not impartial where they departed from or inaccurately described the text of the existing law or the proposed measure or failed to include relevant contextual information.”
The justices also argued that Arizona law prefers the use of “unborn human being” over “fetus” because the latter might confuse voters. The law governing how to write publicity pamphlet summaries calls for “clear and concise” language that avoids technical terms. “Fetus,” according to the high court’s majority, may be too difficult for Arizonans to understand, and the difference between it and “unborn human being,” the justices posited, is akin to the difference between “myocardial infarction” and “heart attack.”
“Put simply, (the law) recognizes that the use of non-technical terms where possible is more likely to assist voters with understanding and rationally assessing a proposed measure, in particular with voters who lack specialized training or expertise in a technical area,” the majority concluded.
King added that removing the phrase “unborn human being” would amount to the high court tipping the scales in favor of abortion rights groups. She argued that some voters might be swayed by the difference in language, and that lawmakers were trying to highlight the “moral” policy change that Prop. 139 was seeking to achieve.
“By accurately noting that existing statutory law describes a pregnancy as involving an ‘unborn human being’ and then identifying that the Initiative proposes adding the terms ‘fetus’ and ‘fetal’ into the Arizona Constitution when creating ‘a fundamental right to abortion,’ the Analysis provides background information about existing law and the measure’s proposed changes,” King wrote. “This approach impartially puts voters on notice of exactly what they are voting for or against.”
By lobbying for replacing the phrase with “fetus,” the justices said that abortion groups were really trying to push for a description that would benefit their initiative. And that’s unlawful, because Arizona state law expressly bars legislative council from taking a side.
“If ‘fetus’ were used, the Council would have deviated from existing law’s text and placed its thumb on the scale in favor of the Initiative under the guise of ‘neutral terminology,’” the court ruled.
Dissenters: merely quoting state law doesn’t make something impartial
Timmer, the court’s chief justice, and Justice James Beene disagreed, arguing that waving away the phrase as nothing more than a direct quote ignores its partisan origins.
Timmer wrote in the dissenting opinion that, even though the U.S. Supreme Court toppled Roe v. Wade and gave states the power to regulate abortion, the debate over the procedure continues to be as “politically, morally, philosophically, and emotionally divisive” as ever. And the central question in that debate is when, exactly, a pregnant woman is carrying an “unborn human being.” By inserting that phrase into the publicity pamphlet summary, Timmer said, the Legislative Council took a side in that argument.
She also reminded the court that, while Arizona law demands impartiality from Legislative Council and its summaries, no such requirements exist for lawmakers.
That means that a ballot measure summary which quotes a law also risks carrying with it any biased language or motives that were enshrined in that statute. Timmer lambasted the majority opinion for unhesitatingly accepting the phrase “unborn human being” as impartial simply because it was pulled from existing law and said it was a shaky foundation on which to approve legislative council summaries.
“To illustrate with a far-fetched example, if the legislature had used the term ‘sweet, innocent baby’ in (the 2022 law), I doubt anyone would view that term as ‘impartial’ if used in describing an abortion-related measure, although it would be accurate to say that the term is used in the statute,” she wrote. “Our job is to determine whether the analysis is impartial as required by (Arizona law), meaning we cannot rubberstamp language as ‘impartial’ merely because the legislature used it in an affected statute.”
But while the majority opinion clarified that it wasn’t intended to set a precedent for automatically regarding every state statute as impartial, Montgomery conceded as much in a concurring opinion. Just because a phrase as colorful as “sweet innocent baby” is included in a hypothetical state law, he wrote, doesn’t immediately render a Legislative Council description which quotes it biased. Instead, the court must look at the analysis as a whole.
And, he concluded, simply because “unborn human being” has been a sticking point for advocates on both sides of the abortion debate, it doesn’t mean that the summary of Prop. 139 should have been thrown out.
“The mere fact that the phrase might also be used in debates concerning the legal rights and statuses that ought to be afforded (or not) to human fetuses/unborn human beings does not render this use of the phrase partial,” Montgomery wrote.
In the dissenting opinion, Timmer and Beene criticized the Legislative Council summary for advancing a phrase that sought to sway voters and convince them, with alarming language right off the bat, that Prop. 139 directly conflicted with their “moral interests.”
“In starting the legislative analysis by using the term ‘unborn human being’ when paraphrasing the statute that currently prohibits abortions after fifteen weeks’ gestation, the Council promoted that value judgement that a fetus is a ‘human being’,” Timmer wrote. “For that reason, I cannot find that the legislative analysis is impartial.”
Timmer also took issue with the claim that keeping “unborn human being” in the summary gave voters the opportunity to decide which term to back. Prop. 139, Timmer wrote, was never about what language Arizona should use.
“Word choice in Arizona law was not the issue in the Initiative,” she said. “Indisputably, the Initiative did not give voters the option of inserting the term ‘unborn human being‘ into Arizona law.”
King accused Timmer of failing to address the fact that “fetus” carries just as much partisan implication as “unborn human being,” and argued that only by including both terms could Legislative Council create a fully impartial analysis.
But Timmer responded that the courts have never accepted “cancelling out” influence as a solution, and said that the justices are only responsible for identifying unlawful summaries. There’s no reason, she wrote, that the legislative council couldn’t have avoided any impropriety by simply leaving both terms out.
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