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Whether the phrase “unborn human being” will appear in a description of the Arizona Abortion Access Act sent to every voter in the state in advance of the November election is now in the hands of a Maricopa County Superior Court Judge.
During a Tuesday afternoon hearing, attorneys for the abortion rights ballot initiative and the GOP lawmakers who approved the phrase’s inclusion in a voter information pamphlet sparred over its legality. Arizona law mandates that lawmakers put together “impartial” descriptions of every ballot measure for a publicity pamphlet sent to voters before an election.
Dr. Patricia Habak, a local OB-GYN, testified on behalf of the Arizona for Abortion Access campaign to highlight its argument that “unborn human being” is not medically accurate. In court filings, the abortion rights campaign advocated for the phrase to be replaced with “fetus”, saying it is the more widely accepted term and not similarly linked to anti-abortion efforts.
Habak, who has been a practicing physician for more than two decades, said she has never used the phrase “unborn human being” when treating patients, nor has she ever seen it referenced in medical journals or heard it used by her teachers or colleagues. The goal of medical professionals, she said, is to use the most accurate language possible, and “fetus” and “embryo” are clearly defined.
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Attorney Kory Langhofer, representing the eight Republican lawmakers who voted to adopt the phrase, grilled Habak on whether the phrase “unborn human being” can, in fact, be dismissed as medically inaccurate. He questioned Habak on whether any medical policy exists asserting that the phrasing is an inaccurate statement. She replied that there isn’t.
Langhofer also sought to poke holes in the claim that “fetus” is the best choice, asking Habak if the term’s use is limited to people. She replied that it can be used to refer to any mammal. In the Legislative Council meeting that debated including the phrase in the voter publicity pamphlet, Sen. Sonny Borrelli, a Republican from Lake Havasu, caused an uproar when he pointed out that fetus can also mean an “unborn horse.”
GOP lawmakers have argued that “unborn human being” is equivalent to “fetus” because the two terms describe the same thing, making them both medically accurate. Langhofer pressed Habak on that point, questioning whether the terms can serve as synonyms. But Habak demurred, saying that it depends on an individual’s personal beliefs.
“I think that that’s getting a lot into what an individual’s values might be and the question of what makes someone a human being,” she said. “While I can’t say that I 100% object to that term ever being used, I think that there are probably others who may say that’s an incorrect term.”
In court filings, attorneys for Republican lawmakers have also argued that their choice to use the phrase “unborn human being” is unbiased because it is included in the summary as a reference to an existing law.
The same law that requires lawmakers to create an “impartial” summary also allows for an analysis of how a ballot measure, if passed, will affect current laws. Arizona is under a 15-week gestational ban. If the Arizona Abortion Access Act wins voters over, the 15-week law — which includes “unborn human being” in its text — will be nullified and women across the state will have guaranteed access to the procedure up to the point of fetal viability, generally regarded to be around 24 weeks.
In his closing remarks, Langhofer reiterated the argument that the summary merely quotes existing law, and warned Judge Christopher Whitten that forcing lawmakers to go back to the drawing board would leave the door open to endless challenges in the future.
“Legislative Council has to be able to do its job,” he said. “And if it can’t quote the words of the statute, it will be very difficult to do the job — it will be guaranteed to be sued every time it generates language. Anyone who wants to change a statute or create a new right or undo an existing right naturally believes (the) existing statute is somehow unfair.”
Whitten acknowledged Langhofer’s argument that the phrase is no more than a direct quote makes it an accurate statement. But he appeared unconvinced that technical accuracy alone insulates the phrase from bias.
“The argument that, because it’s in statute and we’re quoting from the statute, I think, does get you around the hurdle that what you’re saying is accurate. Is everything that’s accurate (also) impartial?” he asked.
Langhofer rebutted that the phrase doesn’t need to be unbiased for its presence in the summary to be accepted as impartial. Unlike the mandate that lawmakers create “impartial” descriptions of ballot initiatives, no law exists that requires legislators to write unbiased laws free from partisan language.
“I don’t think you need to accept the premise that everything in statute is definitionally unbiased,” he said.
In the end, Langhofer said, Legislative Council was doing its best to remain impartial by quoting exact law. And even if the law itself is biased, he added, the phrase “unborn human being” appears so widely in medical texts, across federal agencies and in other court rulings that it’s not egregious.
Whitten said he hopes to issue a ruling in the case by the end of the week.
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