Abortion foes will ask AZ Supreme Court to keep an abortion rights measure off the ballot

An anti-abortion organization is pushing forward with a lawsuit aimed at keeping an abortion rights initiative off Arizona’s ballot this year, despite a trial court dismissing the challenge earlier this week as groundless. 

Arizona Right to Life sought to convince Maricopa County Superior Court Judge Melissa Iyer Julian to throw out all the signature petitions filed by the Arizona Abortion Access Act, automatically disqualifying the initiative from ever going before voters. Unless a court finds otherwise, the initiative, which turned in more than double the required number of voter signatures, is widely expected to go before voters in November.

The anti-abortion group argued that the campaign behind the initiative misled Arizonans who signed petition sheets with an incomplete and confusing 200-word summary that left out how the proposal will affect current state laws. But Julian sided with backers of the abortion rights proposal, writing that past rulings have concluded petition summaries need only explain an initiative’s “principal provisions,” and not how it fits into the existing legal environment. 

“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,’” she wrote, referencing a 1987 ruling by the Arizona Supreme Court allowing a measure to proceed to the ballot. 

Jill Norgaard, a spokeswoman for Arizona Right to Life, said that the group is undeterred by its defeat and has filed a notice of appeal with the state Supreme Court. 

“(We) will be presenting the facts that the abortion access act’s crafted verbiage actually allows abortion up to birth,” she said in an emailed statement. “We are excited to present these facts to the Supreme Court.”

One of the main complaints advanced by the group in court is that the 200-word description doesn’t sufficiently explain that the initiative allows abortions to occur beyond fetal viability, which Arizona Right to Life has characterized as greenlighting abortions even to the point of delivery — an inflammatory and inaccurate claim frequently advanced by abortion foes. 

The vast majority of procedures are performed during the first trimester, at or before 13 weeks of gestation. Abortions obtained beyond 21 or more weeks are exceedingly rare, making up just 1% of all procedures across the country in 2021, and are almost exclusively the result of medical emergencies or lethal fetal anomalies. 

The Arizona Abortion Access Act seeks to enshrine the procedure as a right in the state constitution. It also outlaws any laws or policies that restrict or deny that right, both up to fetal viability — considered to be around 24 weeks of gestation — and beyond, if a health care provider deems an abortion is necessary to preserve a woman’s life, physical or mental health. If passed by voters, it would nullify Arizona’s current 15-week gestational ban. 

Dawn Penich, a spokeswoman for the abortion rights initiative’s campaign, denounced the appeal, criticizing Arizona Right to Life for continuing to pursue already rejected arguments. 

“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. “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.”

The lawsuit over the campaign’s petition summary isn’t the only legal challenge facing it that’s set to be considered by the Arizona Supreme Court. In a separate case, a group of eight GOP legislators have requested the high court’s opinion on whether the phrase “unborn human being” added to a description of the initiative that will be sent to every voter before November is unbiased. 

Like the complaint from Arizona Right to Life, the Republican lawmakers were previously defeated in a lower court and have appealed in a last-chance bid to oppose the abortion rights ballot measure. 

The revamped legal furor also comes as an anti-abortion justice refused to step away from the lawsuit about the description of the ballot measure, putting into question the court’s impartiality for backers of the Arizona Abortion Access Act. 

In a request for his withdrawal from the case, attorneys for the campaign cited Justice Bill Montgomery’s past statements made accusing Planned Parenthood of committing genocide and killing children to sell their body parts as proof that he can’t be impartial. Montgomery rejected that request, saying that Planned Parenthood isn’t a party in the lawsuit. 

While not named in the case as a litigant, the organization has been a top donor to the initiative and its Arizona branch is one of several reproductive rights groups that make up the initiative’s campaign.