Abortion rights measure survives court challenge, headed to Arizona ballot

Arizona's top court unanimously rejected an effort to stop voters from considering an abortion rights amendment this fall, ending the effort from opponents to keep the measure off the November ballot.

The decision Tuesday by the Arizona Supreme Court means the Arizona Abortion Access Act will officially appear on the ballot as Proposition 139.

"This is a huge win for Arizona voters and direct democracy," reads a statement from the ballot measure campaign, Arizona for Abortion Access.

The campaign, backed by a coalition of reproductive and civil rights groups, launched more than a year ago. Earlier this month, Secretary of State Adrian Fontes certified the group's estimated 577,971 signatures collected from voters were valid and easily surpassed the threshold to make the ballot.

The campaign's focus will now shift entirely to November. Arizona is one of a handful of states where voters will consider protecting abortion access that has been uncertain since Roe v. Wade was overturned more than two years ago.

"With less than 80 days to go until the election, we will continue working around the clock to ensure Arizona voters from every corner of the state, from every background and every political party, say YES to putting personal decisions about pregnancy and abortion where they belong — with patients, their families and their doctors, without government interference," the Arizona for Abortion Access statement reads.

Legal challenge brought by anti-abortion group denied

Arizona's top court on Tuesday affirmed a lower court ruling and said a description available to voters who signed the petition to put the amendment on the ballot met legal standards. It directed the secretary of state to include the amendment on the ballot.

State law requires a summary of up to 200 words be available to voters when they sign petitions to put the amendments on the ballot. Law and legal precedent, including the Supreme Court's own decision in a 2020 education funding initiative known as Invest in Ed, require the description to cover a ballot measure's principal provisions and communicate its general objectives.

The challenge to the Arizona Abortion Access Act was brought by anti-abortion group Arizona Right to Life. Maricopa County Superior Court Judge Melissa Iyer Julian ruled on Aug. 5 that the description was legally sufficient, and Arizona Right to Life appealed to the state's top court.

"We look forward to working with our pro life partners across the state to inform voters of the true intent of this initiative and call the question — do you want the Arizona constitution to be amended to include abortion up to birth? Yes or no?" a spokesperson for Arizona Right to Life wrote in a text message when asked of the group's plans before November.

In written arguments filed with the Supreme Court, the group said that the "petition’s summary misrepresented and concealed the principal provisions" of the proposed amendment.

It challenged a handful of words that were left out of the description and argued the "primary thrust" of the amendment was a "wholesale dismantling of existing law related to abortion in Arizona." That wasn't clear to petition signers, lawyers for Arizona Right to Life argued.

Arizona for Abortion Access argued that impact was speculative and beyond the bounds of what the law requires in terms of the description of a ballot measure.

"The Committee cannot know how courts would resolve those challenges now," the group's legal team argued. "Any potential 'effects' in the 200-word description would thus be no more than guesswork."

The anti-abortion group was pursuing a "political quarrel masquerading as a legal claim," the lawyers said. That political argument should be made in "the court of public opinion," not a court of law, they argued.

The Supreme Court sided with Arizona for Abortion Access in affirming Julian's ruling.

"The Description is not required to explain the Initiative’s impact on existing abortion laws or regulations," the order written by Chief Justice Ann Scott Timmer reads. "Moreover, a reasonable person would necessarily understand that existing laws that fail the prescribed tests would be invalid rather than continue in effect."

As an example, the court cited Arizona's current abortion law, which would directly conflict with the amendment if a majority of Arizonans vote in its favor.

Abortion is allowed in the state up to 15 weeks of pregnancy. Abortions can be provided later only in cases of medical emergency.

The amendment would create a "fundamental right" to obtain an abortion anytime before viability — the point at which a fetus would have a significant chance of surviving outside the womb absent extraordinary measures. That is typically about 23 or 24 weeks of gestation.

After viability, the act prevents restrictions on an abortion that, "in the good faith judgment of a treating health care professional, is necessary to protect the life or physical or mental health of the pregnant individual."

Supreme Court justices on the ballot, too

The court's order offers a lesson of sorts when it comes to the justices' role in the pivotal case. Abortion rights are expected to be among the highest priorities for voters this year, and Democrats have sought to turn support for the amendment into wins in races up and down the ballot.

All seven justices of the Arizona Supreme Court were appointed by Republican governors. Two of them are subject to retention elections this year and have faced campaigns to unseat them largely tied to an April decision briefly reinstating a more than century-old abortion ban.

"As this Court has noted in a previous case concerning abortion, our resolution of this appeal “does not rest on the justices’ morals or public policy views regarding abortion,'" Timmer wrote. "Rather, our task is to apply the law governing initiative descriptions fairly and impartially in the context of the people’s exercise of the legislative power through the initiative."

Justice Clint Bolick, one of the justices up for retention, recused himself from the case. Retired Justice John Pelander, who was appointed to the bench by former Republican Gov. Jan Brewer in 2009, sat in instead.

Timmer, Pelander, and Justices James Beene, John Lopez IV, Robert Brutinel, William “Bill” Montgomery, and Kathryn King agreed that the abortion ballot measure should go before voters. King is the second justice facing a review from voters in that election.

Reach reporter Stacey Barchenger at [email protected] or 480-416-5669.

This article originally appeared on Arizona Republic: Arizona abortion rights measure survives challenge, will be on ballot