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A bid to block the state’s abortion rights initiative launched by Arizona Right to Life was tossed out of court on Monday, with a judge ruling there’s no legal reason to prevent it from being considered by voters.
“The description accurately and fully communicated the initiative’s key provisions,” wrote Maricopa County Superior Court Judge Melissa Iyer Julian. “This Court will not order its removal from the general statewide election ballot.”
The anti-abortion organization sought to convince Julian that the Arizona Abortion Access Act’s 200-word summary shown to Arizonans who signed petition sheets to help the act qualify for the ballot was so unlawfully misleading as to put all of its signatures into question. But Julian was unconvinced, writing in her 10-page ruling that the organization failed to prove its complaints render the proposal unfit for the November election. Instead, she wrote, Arizona Right to Life’s opposition to the initiative — which centered mostly around the effects it would have on current laws — should be aired in the political arena.
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“Concern about the impact this initiative may have on existing abortion regulations is not a ground to compel the initiative’s removal from the ballot. ‘The proper place to argue about the potential impact of an initiative is in the political arena, in speeches, newspaper articles, advertisements and other forums,’” Julian wrote, referencing previous rulings.
The lawsuit is the second high-profile failure from abortion foes seeking to work against the abortion rights initiative. Last month, Maricopa County Superior Court Judge Christopher Whitten ordered eight GOP lawmakers who included the phrase “unborn human being” in a description of the act set to be distributed to Arizonans in a voter publicity pamphlet to replace it with a more neutral term. The group has since appealed the case.
Attorneys for Arizona Right to Life argued that the 200-word description required to be on all ballot initiative petitions omitted key words from the act’s actual text to obscure its intent and failed to explain how, if passed, it would nullify all of the state’s abortion restrictions. The group argued that Arizonans who added their signatures to petition sheets wouldn’t have supported the proposal if they knew how broad it is.
A related claim that nearly 200 petition circulators mischaracterized the act to voters or turned in legally insufficient forms was dropped, with Arizona Right to Life noting that invalidating them wouldn’t defeat the initiative in the end. The campaign behind the initiative turned in more than 820,000 signatures to qualify for the November ballot, and more than 7,000 volunteers helped circulate petitions.
The Arizona Abortion Access Act enshrines abortion rights into the state constitution, protecting access up to fetal viability, which is generally regarded to be around 24 weeks. It also allows abortions beyond that timeframe if a health care provider deems it necessary to preserve a woman’s life, physical or mental health.
Among the multiple criticisms advanced by Arizona Right to Life was that the 200-word description refers to a “health care provider” while the actual text of the act refers to the “treating health care provider” when describing who has the authority to determine that an abortion is necessary beyond fetal viability. Attorneys for the anti-abortion organization claimed that omitting the word “treating” misled Arizonans into thinking that a neutral doctor, and not an abortion provider, would be the one in charge of deciding whether an abortion past the point of fetal viability is warranted.
Julian disagreed, writing that leaving out “treating” doesn’t render the description inaccurate or misleading. The definition of what a health care provider can be is clear, she wrote, and nothing in the act’s text or 200-word summary indicates that an abortion provider is excluded from the list of medical professionals who can authorize an abortion beyond fetal viability.
“Reasonable people understand that medical diagnoses and treatment plans are typically determined by the medical provider who is actively treating a patient whose health is at issue,” Julian wrote. “For pregnant patients, this could include the patient’s primary care, obstetrical, or other medical providers, including one who provides abortions.”
The judge also dismissed a similar claim that leaving out “good faith judgment” from the summary but including it in the act’s text was done to avoid informing petition signers that health care providers have overly broad discretion to decide when to perform an abortion. Arizonans understand that physicians rely on their education, training and experience to make medical decisions, Julian wrote, and most people presume that doctors will make judgements that align with their Hippocratic oaths.
The main argument advanced by Arizona Right to Life was that the summary failed to account for the effects the ballot initiative will have on existing abortion laws if voters approve it. Arizona is currently under a 15-week gestational ban that will likely be nullified if the act is passed. The measure also includes a provision that states that “no law, regulation, policy or practice shall be enacted or enforced” that restricts, denies or interferes with the right to receive an abortion either before or after fetal viability.
Arizona Right to Life claimed that the act’s 200-word summary is unlawfully misleading because it doesn’t explain that the proposal’s prohibition on restrictive laws could be used to strike down any abortion-related laws, including licensing regulations or policies that ensure the safe disposal of biological remains. Julian dismissed that argument, saying that previous case law has already established that the summary is not required to explain its effects to be accurate and legally sufficient for the ballot.
Other health care policies have similar language, Julian pointed out. And, she added, it’s too soon to figure out if specific laws violate or comply with the Arizona Abortion Access Act. Voters have not yet had a chance to weigh in on whether they want the act to be the law of the land.
“The extent to which the initiative will affect the validity of specific abortion regulations may never be ripe for judicial review as the initiative measure may never be enacted by Arizona’s voters,” Julian wrote. “For this reason, Arizona courts ‘have never required an initiative description to explain all potential effects of a measure.’”
Dawn Penich, a spokeswoman for the Arizona for Abortion Access Campaign, denounced the lawsuit as “meritless” and said that she expects the initiative will continue to come out on top if opponents pursue an appeal.
“We aren’t surprised by this win because our opposition’s arguments had no basis in Arizona law, and were nothing more than false political talking points,” Penich said, in an emailed statement. “If our opposition appeals, we are confident we will prevail just as we are confident we will win at the ballot box this November.”
Arizona Right to Life did not respond to a request for comment on the ruling, or on whether the organization plans to appeal.
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