'Thumbs on the electoral scale': AZ abortion backers sue over voter pamphlet language

Lawyers working on an abortion rights ballot measure on Wednesday went to court to stop the state from using the term "unborn human being" in a description that will be sent to voters.

Backers of the Arizona Abortion Access Act say that language is inherently politically charged and is often used by groups that advocate against abortion rights.

Republicans in favor of using "unborn human being" were "trying to put their thumbs on the electoral scale in an effort to confuse voters, and not for the first time," said Cheryl Bruce, the campaign manager for Arizona for Abortion Access.

The campaign wants a judge to order the use of a neutral and medically accepted word instead: fetus.

The brewing legal battle over terminology will determine what appears in a pamphlet sent to voters by the Arizona Secretary of State's Office. In addition to arguments for and against any ballot measure, the pamphlet is also required by law to include an "impartial analysis" approved by the Legislative Council. That analysis should be "written in clear and concise terms avoiding technical terms wherever possible," state law says.

Yet even the work of creating an impartial description is tinged by partisanship.

The language is approved by a majority vote of the Legislative Council, which includes 14 lawmakers. Eight are Republicans. Like other committees at the Capitol, where Republicans hold the majority, the council's makeup reflects that party's power.

In a Monday meeting, the council's discussion of the Arizona Abortion Access Act turned into debate about the use of "unborn human being" or "fetus." Both are used in the description approved by the council.

Austin Yost, an attorney at Coppersmith Brockelman and part of the team that filed the lawsuit on Wednesday, told the council that fetus is the medical term used by American College of Obstetricians and Gynecologists and agencies of the federal government.

But resistance came from Republican lawmakers, including House Speaker Ben Toma. Toma, a Glendale Republican running for Congress this year, said that using both terms was a compromise.

"Using the word fetus is partial as well for those of us on the pro-life side," Toma said. He added "the fact the description actually uses both phrases in different sections to me seems very fair and balanced."

Sen. Sonny Borrelli, a Lake Havasu City Republican, offered a comparison that backers of the ballot measure said underscored the partisanship of the debate. The comments drew immediate objections from Democratic council members.

“Unborn horse," Borrelli said. "Is that a fetus, or is it an unborn horse?”

Borrelli made headlines earlier this year when he suggested a bill protecting access to contraceptives wouldn't be necessary if women weren't promiscuous. "Like I said, Bayer company invented aspirin. Put it between your knees," Borrelli said, a quip that became fodder for advertisements attacking the GOP paid for by the national advocacy group Americans for Contraception.

The lawsuit filed in Maricopa County Superior Court on Wednesday asks a judge to throw out the analysis as approved earlier this week in favor of one that complies with legal requirements to be impartial.

Both "fetus" and "unborn human being" are used elsewhere in state law, and that was quickly pointed out by opponents to the ballot measure.

"This provides a balanced approach based on legal language, not on propaganda," Leisa Brug, who is leading the opposition campaign called It Goes Too Far, said in a statement.

Andy Gaona, another attorney working on the ballot measure, countered that state law doesn't have to be impartial, but the analysis approved by the Legislative Council does.

In separate statements, Toma and Senate President Warren Petersen, a Gilbert Republican on the council, said the description approved by the council would prevail.

Petersen said the language was unbiased, "accurately reflects the measure," and informs voters. Toma said the court would agree that "when we talk about abortion we are unmistakably talking about unborn children," and called the lawsuit frivolous.

If it makes the ballot and is approved by a majority of voters, the Arizona Abortion Access Act would create a right to an abortion in the state Constitution. It would prevent the state from restricting that right before a fetus is viable. Viability is generally around 23 or 24 weeks. After viability, the state could not restrict abortions that are “necessary to protect the life or physical or mental health of the pregnant individual.”

Current law allows abortions up to 15 weeks of pregnancy, with no exceptions later in cases of rape or incest. The only exception is for medical emergencies.

Arizona's Constitution allows citizen groups to put propositions before voters if they gather enough signatures in support. For November's election, groups hoping to amend the state Constitution had to gather about 384,000 valid voter signatures to qualify.

When the deadline came last week to file those signatures, the abortion access campaign said it turned in over 823,000, believed to be the most in state history. That provides a big buffer for forthcoming legal challenges.

Arizona Right to Life, a prominent abortion opposition group, said it was "committed to challenging the signatures to prevent the Arizona Abortion Access Act from getting onto the ballot."

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

This article originally appeared on Arizona Republic: Arizona for Abortion Access sues GOP-backed voter pamphlet language