Anti-abortion protesters gather at the Arizona Capitol on April 17, 2024, as the legislature prepared to take up legislation aimed at repealing a near-total abortion ban that became law in 1864. Photo by Jerod MacDonald-Evoy | Arizona Mirror
An anti-abortion group filed a lawsuit to block voters from deciding whether the Arizona Constitution should be amended to protect abortion rights, claiming the ballot measure is too confusing and misleading.
On Wednesday, Arizona Right to Life launched a legal challenge against the Arizona Abortion Access Act in Maricopa County Superior Court.
The nonprofit is one of several groups that were part of a “Decline to Sign” campaign that sought to persuade Arizonans not to support the initiative’s effort to qualify for the November election. That campaign ultimately failed; backers of the abortion rights proposal submitted more than double the required number of signatures earlier this month.
Arizona Right for Life alleged that the initiative’s content is too confusing for voters to understand, and, in some cases, actively misleads Arizonans. The courts have the power to prevent ballot measures determined to be intentionally fraudulent or misleading from appearing on the ballot.
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The Arizona Abortion Access Act enshrines access to abortion as a right in the state constitution up to the point of fetal viability, generally regarded to be around 24 weeks of gestation. It also includes an exception for abortions performed beyond that timeframe if a patient’s health care provider concludes one is necessary to safeguard their life, physical or mental health.
And any state laws or policies restricting, denying or interfering with that right would be nullified, including the current 15-week gestational ban, unless the state has a “compelling governmental interest” in regulating the procedure. That compelling interest is defined as a law or policy crafted with the intent of improving or maintaining the health of the person seeking an abortion.
Anti-abortion opponents argue that the ballot measure mischaracterizes its entire premise because it allows abortions beyond the point of fetal viability. Attorneys for Arizona Right to Life added that the exceptions baked into the act are overbroad and too confusing for voters to understand. Too much leeway, they wrote, is given to abortion providers to decide when a procedure is warranted.
“The Amendment purports to allow regulation of late-term abortions but then guts that proffer with a huge loophole for ‘good faith’ abortionist judgements about the malleable scope of ‘health,’” reads the brief.
And while mental health is part of the possible exceptions, it isn’t clearly defined. Leaving that up to interpretation is unfair, as that could have convinced Arizonans who ended up signing the petition sheets to reject it if they had been afforded a better understanding, according to the lawsuit.
The mental health exception has been a particular sore point for abortion foes. Backers of the “It Goes Too Far” campaign that spearheaded the Decline to Sign effort frequently pointed to the mental health exception as too permissive, saying it would allow women to seek abortions on a whim, right up to their due dates. Supporters of the ballot measure have defended the exception as necessary to give women the flexibility to obtain the health care they want or need.
The applicability of the “compelling governmental interest” was also too unclear to give Arizonans a fair shot at understanding it, Arizona Right to Life argues. The anti-abortion group alleges that the provision is misleading because it appears to preserve the ability of the state to regulate abortion, when it in fact makes it nearly impossible for lawmakers to intervene.
The caveat included in the act that requires the compelling interest to either improve or maintain the health of the woman seeking an abortion so severely limits the options left to lawmakers to regulate the procedure as to make them almost nonexistent, argue attorneys for the organization.
“This language erases all other compelling governmental interests except making the abortion safer for women,” reads the legal challenge. “This erases even the recognized interest in Roe, that a state ‘has still another important and legitimate interest in protecting the potentiality of human life’.”
Roe v. Wade was overturned two years ago, when the U.S. Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization that no constitutional right to abortion exists and it’s up to individual states to govern and limit the procedure as they see fit.
Attorneys for Arizona Right to Life add that the ballot measure’s requirement that the compelling interest not “infringe” on a person’s autonomous decision-making essentially nullifies any effort to create laws around the procedure.
“At a minimum, this means the state can do nothing to stop the abortion, even if it is being done for the most vile of eugenic or racist reasons, is being done in a horrific manner that is particularly painful to the prenatal human, or is being done at any time up to birth,” they wrote.
The complaint posits that it follows that any health-related laws considered to be too burdensome for abortion providers to obey could be rendered unlawful under the act, including regulations around facility licensing, the disposal of biological remains or malpractice insurance. And, attorneys claim, the act could also be interpreted in such a way that Arizona would be forced to fund abortions because ensuring access is paramount. Each of those arguments echo ones advanced by the It Goes Too Far campaign, which seeks to frame the initiative as too extreme for Arizona.
None of the act’s potential outcomes, according to Arizona Right to Life’s attorneys, were made clear in the language of the initiative or in the 200-word summary submitted to the Arizona Secretary of State’s office that is meant to help inform voters. And failing to cover those issues means the campaign behind the act fraudulently garnered voter support.
The only recourse left, the group told the court, is invalidating all of the act’s signature sheets and blocking it from the November ballot.
“Because the initiative’s language creates a danger of confusion and misrepresents the initiative’s effect in a way that would affect potential signatories, it should be removed from the ballot,” reads the brief.
Arizona Right to Life also accuses nearly 200 signature petition circulators of turning in legally deficient forms and fraudulently characterizing the initiative to garner support from Arizonans. If the claims are proven correct, all of the signatures gathered by the contested circulators would be invalidated. The campaign has previously stated more than 7,000 volunteers helped gather signatures, along with a number of paid circulators.
Cheryl Bruce, the campaign manager for Arizona for Abortion Access, dismissed the lawsuit in an emailed statement as “desperate.” She denounced the filing as no more than a bid to undermine the record-breaking amount of support the initiative has received, and said the campaign remains focused on winning in the fall.
“Their complaints are deceptive attempts to silence the will of more than 820,000 Arizona voters — the most voters ever unified in support of any citizen-led initiative in state history,” Bruce said. “Despite these bogus attacks by anti-abortion extremists, we have long been prepared for just this type of unfounded attempt to shut down direct democracy in our state. We are confident that we will prevail, and remain committed to winning in November and restoring abortion access in Arizona once and for all.”
Abortion rights has proven to be a winning issue in past elections, even in red states, and reproductive rights advocates expect to see similar success in Arizona this year. In 2022, a record-breaking number of Kansas voters showed up at the polls to defeat a GOP bid to eliminate abortion protections. That same year, a similar effort to block abortion rights in Kansas was roundly rejected. In 2023, Ohio resoundingly defeated an anti-abortion initiative and also supported enshrining the procedure in their state constitution.
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