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Republican lawmakers violated state law when they used the phrase “unborn human being” to describe the Arizona Abortion Access Act in a voter information pamphlet, a Maricopa County judge ruled on Friday.
“The only issue before the Court is whether the phrase ‘unborn human being’ as approved by the Legislative Council is ‘an impartial analysis of the provisions of (the subject) ballot proposal’ as required by (Arizona law). It is not,” Maricopa County Superior Court Judge Christopher Whitten wrote in his ruling.
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State law mandates that lawmakers create “impartial” summaries of every ballot measure for a publicity pamphlet sent to voters before the November election. After a legislative panel of eight Republicans and six Democrats voted along party lines to approve a description of the abortion rights initiative that included “unborn human being” in the first sentence, the initiative’s campaign went to court.
Backers of the abortion rights proposal argued the phrase illegally injects political bias into the summary and should be replaced with “fetus” as the more medically accurate, neutral term. Attorneys for the eight GOP lawmakers sought to convince the court that, because the phrase is a direct quote from the state law limiting abortion to 15 weeks, it should be regarded as impartial and left in place.
Whitten was unconvinced by the claim that the phrase, as a direct quote, is impartial. Simply existing somewhere in state law, he wrote, doesn’t insulate the phrase from political bias. Unlike the law that prohibits biased language from being added to summaries in the voter publicity pamphlet, no equivalent mandate exists requiring legislators to use unbiased language when crafting state laws, Whitten pointed out.
“The court is not persuaded that every word chosen by the legislature in every statute it enacts is intended to be a neutral in character (sic),” he wrote. “There is no requirement that the legislature chose its words in such a way, and plenty of evidence that they sometimes do not.”
Whitten noted that previous court rulings have been clear about what kind of language violates the impartiality standard. Summaries that appear to advocate for or against a ballot measure, seek to mislead voters or are “tinged with partisan coloring” are illegal.
Even language that is technically accurate but uses “provocative” phrasing has been found to violate the impartiality requirement, Whitten wrote. GOP lawmakers argued in court that the phrase is just as medically accurate as “fetus” — and might even be more accurate, given that “fetus” is used to refer to any mammal.
Ultimately, Whitten concluded, the phrase “unborn human being” is too undeniably partisan to allow it to stand.
“The term ‘unborn human being’ is packed with emotional and partisan meaning, both for those who oppose abortion and for those who endorse a woman’s right to choose whether to have an abortion,” he wrote.
Whitten ordered that the Legislative Council remove the phrase from the summary for the Arizona Abortion Access Act. But he left it up to lawmakers to decide what to replace the phrase with, writing only that it must create an impartial description.
Cheryl Bruce, the campaign manager for Arizona Abortion Access for All, celebrated the ruling as a win for voters, though she added that she expects litigation in the case to continue.
“We are pleased to be one step closer to making sure Arizona voters get accurate and impartial information about our citizen-led effort to restore abortion access before they vote this fall,” she said in an emailed statement. “Though we expect and are prepared for an appeal, this is important progress toward giving Arizona voters the power to make an informed decision in support of protecting our reproductive freedoms once and for all.”
If passed, the ballot measure would enshrine abortion as a right in the state constitution, guaranteeing access up to fetal viability, generally regarded to be around 24 weeks. It also invalidates restrictive abortion laws, including the current 15-week gestational ban, and includes exceptions beyond fetal viability if a health care provider deems an abortion necessary to preserve a patient’s life, physical or mental health.
GOP leaders denounced Whitten’s decision as biased and vowed to appeal the ruling.
House Speaker Ben Toma, a Republican from Glendale who chairs the legislative panel that adopted the summary language, criticized Whitten for trying to take on a lawmaking role.
“The ruling is just plain wrong and clearly partisan if the language of the actual law is not acceptable,” Toma said. “The judge should run for the legislature if he wants to write the law.”
President Warren Petersen, a Gilbert Republican, said that he looks forward to a favorable ruling in the appeals court.
“The judge’s ruling is partisan,” he said, in an emailed statement. “I’m confident he will be overturned on appeal.”
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