Abortion rights will be on the AZ ballot after Supreme Court rejects challenge from foes

Arizona voters will have the final say on whether abortion should be a right in the Grand Canyon State in November after the Arizona Supreme Court shot down a last-chance attempt from abortion foes to prevent the question from appearing on the ballot. 

Dawn Penich, a spokeswoman for the campaign behind the abortion rights initiative, celebrated the court’s action as a victory for the ability of Arizona voters to make their voices heard. 

“This win means that Arizona voters will get to have our say and enshrine the right to access abortion in our state constitution, putting personal medical decisions where they belong: in the hands of patients and doctors once and for all,” she said in a written statement.

Arizona Right to Life sought to invalidate all of the signature petitions gathered by the Arizona Abortion Access Act, arguing that it illegally deceived voters into signing their names. The anti-abortion organization, along with other prominent anti-abortion groups, formed part of a Decline to Sign campaign that unsuccessfully attempted to convince voters not to support the initiative’s bid to appear on the ballot.

The campaign behind Proposition 139 collected a record-breaking number of signatures to qualify for the November ballot, and just under 578,000 were confirmed to be valid last week — far exceeding the 383,923 requirement for a proposal that amends the Arizona Constitution. 

In court, Arizona Right to Life argued that a 200-word summary of the ballot measure shown to voters by petition circulators asking for their signatures was so unlawfully misleading that the only recourse left was to throw out all of the signature sheets. A key complaint from the group was that the summary didn’t explain that the initiative has the potential to invalidate several existing abortion laws, including the 15-week gestational ban currently in place. 

The act guarantees access to an abortion up to the point of fetal viability, generally regarded as being around 24 weeks, and includes exceptions beyond that timeframe if a health care provider deems the procedure is necessary to preserve a woman’s life, physical or mental health. It also prohibits any state law from denying, interfering or restricting a woman’s right to obtain an abortion unless the state has a compelling interest in doing so that is rooted in evidence-based decision-making and doesn’t infringe on a woman’s autonomy. 

Arizona Right to Life’s argument failed to convince a Maricopa County Superior Court Judge, who ruled earlier this month that the summary is perfectly accurate and the group’s criticisms of how the campaign has described the act should be aired in the political arena. On Tuesday, the Arizona Supreme Court sided with the lower court, saying that the summary complies with state law. All seven justices unanimously ordered that the initiative be included in the November ballot. 

In a five-page ruling, Chief Justice Ann Scott Timmer wrote that the initiative’s 200-word summary adequately outlined its “principal provisions,” as required by Arizona law. Those provisions, according to the justices, are that the Arizona Abortion Access Act establishes a fundamental right to abortion; it guarantees the right to obtain an abortion up to and after fetal viability; and it prevents the state from punishing someone who assists a woman in receiving an abortion. 

The complaint from Arizona Right to Life that the summary made no mention of how the initiative interacts with existing state law is irrelevant, Timmer wrote, because state law doesn’t require that the summary include such an explanation. And, she added, it’s unnecessary, because most Arizonans would understand the initiative’s effects without having to be told about them. 

“The description is not required to explain the Initiative’s impact on existing abortion laws or regulations,” Timmer wrote. “Moreover, a reasonable person would necessarily understand that existing laws that fail the prescribed tests would be invalid rather than continue in effect.” 

Another argument advanced by Arizona Right to Life was that the summary left out the fact that the health care provider mentioned in the initiative who has the ability to authorize an abortion even after fetal viability can include an abortion provider. Attorneys for the group said that could open the door to bad faith judgements, because abortion providers directly benefit from providing abortions, and argued that including that detail in the 200-word summary could have convinced some voters not to add their names to signature petition sheets. 

But the high court dismissed that argument, too, with Timmer writing that most Arizonans assume that “health care provider” includes whichever “treating physician” a woman is consulting. And, she added, most voters recognize that health care providers are guided by ethical codes and act in good faith to safeguard their patient’s health. 

In the end, the complaints brought by Arizona Right to Life don’t meet the threshold to bar the abortion rights proposal from the ballot. In fact, most of the group’s criticisms, Timmer wrote, are best dealt with in the political sphere, through advocacy and public opposition.