Right to Life says AZ Supreme Court should block abortion rights initiative from the ballot 

An anti-abortion group is hoping the Arizona Supreme Court will step in and block voters in November from deciding whether to amend the state constitution to include a right to abortion.

Arizona Right to Life failed to convince a trial court judge that the campaign for the Arizona Abortion Access Act misled voters who signed their petition to make it on the ballot. After their lawsuit was dismissed on Aug. 6, the group immediately appealed the decision to the high court, asking the justices to overturn the trial judge’s decision and block the measure from being put to voters. 

In both the initial lawsuit and the appeal, attorneys for Arizona Right to Life claim that the 200-word summary shown to Arizonans who signed petition sheets to help the act qualify for the ballot was so unlawfully misleading that it puts all of the signatures into question.

The Arizona Secretary of State’s Office confirmed Monday that the Abortion Access Act had collected enough voter signatures to make it on the ballot. The campaign behind the act, Arizona for Abortion Access, gathered a total of more than 820,000 signatures, and approximately 578,000 were confirmed to be valid, significantly more than the nearly 384,000 it needed to qualify. 

If voters favor the Abortion Access Act, it would guarantee a woman’s right to an abortion up to the point of fetal viability, around 24 weeks of pregnancy. Exceptions to that limit would be allowed if a health care provider determined it was necessary to preserve a patient’s life, physical or mental health.

Jennifer Wright, an attorney for Arizona Right to Life, wrote in the appeal that the summary shown to those who signed the petition was misleading because it contained the phrase “health care provider” while the full 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.

Wright is a former assistant Arizona attorney general who is representing Republican U.S. Senate hopeful Kari Lake in a defamation suit filed against her by Republican Maricopa County Recorder Stephen Richer. She also recently began representing Lake in her suit to overturn the results of the 2022 gubernatorial race that she lost to Democratic Gov. Katie Hobbs. 

Attorneys for the anti-abortion organization claimed that omitting the word “treating” in the summary misled those who signed the Abortion Access petition into thinking that someone other than an abortion provider would decide whether an abortion past the point of fetal viability was warranted. But trial court Judge Melissa Iyer Julian disagreed.

“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.” 

Wright went on to argue that the exception for the mental or physical health of the mother would essentially give a green flag to any abortion, up until birth — an inflammatory and inaccurate claim frequently advanced by abortion foes. 

Wright argued that the summary should include a description of how the Abortion Access Act would impact existing abortion legislation, but Julian disagreed on that point, as well. 

“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. 

At present, Arizona is under a 15-week gestational ban that will likely be nullified if the act is passed. 

The proposed constitutional amendment also includes a provision stating 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 claims that this provision, which says that any restrictions put on the procedure should “not infringe on that person’s autonomous decision-making,” essentially bans all regulations on the procedure, including that it be performed by a licensed medical professional. 

“For example, if a woman wants an unlicensed abortion provider to perform an abortion, even someone without medical training, her desire for autonomous decision-making would appear to trump any state interest,” Wright wrote. 

The group also alleged that it would allow abortions to be performed for egregious reasons. 

“At a minimum, this means the State can do nothing to stop the abortion, even if it is being done for the worst 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,” Wright wrote. 

Arizona Right to Life was one of several organizations behind the “Decline to Sign” campaign that unsuccessfully sought to persuade voters not to support the Abortion Access Act’s effort to qualify for the November election. 

Dawn Penich, a spokeswoman for the abortion rights initiative’s campaign, told the Arizona Mirror that no one was available Tuesday to comment on the appeal to the Supreme Court. 

But Penich previously criticized Arizona Right to Life for continuing to pursue arguments already rejected by the trial court. 

“This appeal shows yet again that they are willing to do and say anything — no matter how desperate or dishonest — to deprive Arizonans of their right to direct democracy,” she said in an emailed statement after the anti-abortion group said it would appeal the trial court ruling. “We’re hopeful the Arizona Supreme Court will grant us a fair and unbiased review and allow Arizona voters to have their say at the ballot box. Arizona for Abortion Access remains committed to giving Arizona voters the chance to restore and protect our right to access abortion free from government overreach, once and for all.”

Arizona Supreme Court Justice Bill Montgomery, who once accused Planned Parenthood of committing genocide, said he wouldn’t recuse himself from a previous case to decide whether “unborn human being” could be used to describe the abortion rights initiative in an election information pamphlet sent to every voter in the state. 

Arizona for Abortion Access has argued that, because of his opposition to Planned Parenthood and history of using anti-abortion language, he cannot be impartial in rulings regarding the abortion rights measure. 

Montgomery adamantly disagreed, saying that his strong feelings regarding abortion don’t make him biased.