Court filings get heated in runup to AZ Supreme Court decision on abortion rights initiative

Arizona Right to Life is working to convince the state Supreme Court that, if voters favor an abortion rights initiative this fall, the only people who will stand in the way of the procedure are “abortionists who profit from a determination that leads to abortion.”

The anti-abortion organization argued as much in a brief filed to Arizona’s highest court on Friday afternoon.

If voters approve Proposition 139 in November, it would enshrine in the Arizona Constitution the right to an abortion up to the point of fetal viability, generally accepted to be 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.

Arizona Right to Life lost its lawsuit challenging the measure’s place on the ballot in a trial court, but the state’s highest court has yet to make a decision in the appeal.

The anti-abortion group claimed that the summary of the Arizona Abortion Access Act, which was shown to the more than 800,000 supporters who signed petitions to get it on the ballot, was misleading, and for that reason it should be barred from the ballot this fall.

On Monday, the Arizona Secretary of State’s Office confirmed that around 570,000 of those signatures were valid, significantly more than enough to make it onto the ballot.

In the appeal, Arizona Right to Life argued 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.

The anti-abortion group argued that the omission of the word “treating” in the summary led petition signers to believe that someone other than an abortion provider would be making the decision.

The trial court judge did not agree.

Other groups and elected officials rallied to defend the abortion rights measure in court on Friday, too. In a joint filing, Save our Schools Arizona and the Ballot Initiative Strategy Center claimed that, if the court buys the argument that the omission of “a minor adjective” means the description is impermissibly misleading, the justices would make the standard “so burdensome and unattainable that no initiative could survive” legal review.

SOS Arizona is a public school advocacy organization and the BISC is a nonprofit that provides information to advocacy groups about the initiative process.

“The microscopic detail (Arizona Right to Life) demands would render compliance impossible and would suffocate the right to initiative,” an attorney for the two groups, Daniel Adelman, wrote in the friend of the court filing.

Adelman also called into question Arizona Right to Life’s argument that the summary should have included details about the Abortion Access Act’s possible impact on existing abortion regulations.

State law currently bans the procedure after 15 weeks of pregnancy, with exceptions only to save the life of the mother.

“No proponent could predict and summarize which past and future laws would survive in the span of 200 words, while simultaneously explaining the measure’s actual provisions,” Adelman wrote. “And the attempt to engage in such an exercise could result in a misleading description should a court disagree with how the proponents applied the test to any particular regulation.”

State law requires that summaries shown to potential petition signers include all of the principal provisions of the ballot measure, but not its possible impacts on existing law, Adelman pointed out.

But Arizona Right to Life argued in its Friday filing that one of the principal provisions of the act was to demolish the current “objective medical examination” standard for determining if an abortion was warranted, to be replaced by the “good faith judgment” of the treating health care provider.

“The voters are — unbeknownst to them — being asked to allow medical determinations about abortion made solely on the ‘good faith’ decision of abortionists who profit from a determination that leads to abortion,” wrote Jennifer Wright, an attorney for Right to Life.

The American College of Obstetricians and Gynecologists, the Society for Maternal-Fetal Medicine and the Society of Family Planning countered those claims in their own court filing in support of the Arizona Abortion Access Act.

Karin Aldama, an attorney for the medical societies and abortion research group, wrote that Arizona Right to Life’s allegations about abortion providers lacked evidence and were “ungrounded in the realities of medical care and ethics.”

“Bedrock principles of medical ethics require that all clinicians, irrespective of the type of care they provide, base their medical judgments on the ‘welfare of the patient,’ not personal gain,” Aldama wrote.

The medical societies also alleged that the anti-abortion advocacy group was wrongfully attempting to convince the court that clinicians who provide abortions were governed by a different code of ethics than other health care providers.

“Plaintiff’s attempt to stigmatize the provision of essential health care and to single out and diminish health care professionals who provide it — as if they were a different class of medical professional or prone to conduct that would displace patient well-being for personal gain — lacks any factual basis, is contrary to the legal and ethical obligations required of medical professionals, is harmful to Arizonans, and should be rejected by this Court,” Aldama wrote.

In response to the accusations of the medical societies, Arizona Right to Life wrote on Friday that medical providers do not typically perform medical procedures for free, and that financial gain can influence their decision making.

In the same filing, the anti-abortion organization doubled down on its declaration that the summary shown to petition signers was misleading because it didn’t inform them that its “principal provision” would “eradicate” existing abortion laws.

“That basic thrust is to completely deregulate abortion and to ultimately abolish all Arizona laws that would impugn on a woman’s decision to abort her child,” Wright wrote.

A Thursday court filing in support of Arizona Right to Life’s argument by State Rep. Barbara Parker and U.S. Congressman Andy Biggs, both Republicans, expanded on the organization’s claims about the possible implications of constitutional changes the measure would make.

Their attorneys, Veronica Lucero and state Rep. Alexander Kolodin, a Scottsdale Republican, told the court that the measure should be barred from the ballot because its description failed to inform signers that the act would strip from the courts the traditional level of scrutiny they apply to legislation governing fundamental rights.

Lucero and Kolodin argued that, because that change is a “principal provision” of the Abortion Access Act, it should have been included in the summary.

“This is a sweeping change to the way Arizona courts analyze and interpret the law when it comes to fundamental rights, which include our most precious and basic individual liberties, and this transformation is plainly one of the ‘most important, consequential, and primary features of the initiative,’” they wrote.

The Arizona Abortion Access Act would enshrine the right to abortion in the state constitution and would bar the state from adopting or enforcing any law that would deny or restrict that right prior to fetal viability, unless there was a compelling state interest in doing so.

The act goes on to specify that the compelling state interest must be for the limited purpose of improving or maintaining the health of the person seeking an abortion, and that it must not interfere with that person’s autonomous decision making.

Lucero and Kolodin argued that, because this same sort of restriction on a compelling state interest is not placed on other fundamental rights and makes a change to how the courts would handle abortion law, the change should have been included in the summary.

“(T)his interest would override a compelling interest the government may have in ensuring that a healthcare provider has the religious freedom not to perform an abortion,” they wrote. “It is a material omission to the public that the Act will override any such interest because courts will not be able to weigh the fundamental right of religious freedom over the fundamental right of abortion.”

The Arizona Supreme Court is expected to rule on the appeal before Aug. 22, the deadline to print ballots in some counties.

In their filing, the medical societies impressed upon the court the importance of access to abortion as a part of standard medical care.

“Health care access should not be a game of ping-pong. Access to the full spectrum of medical care is critically important for people’s health, safety, and well-being,” Aldama wrote. “The health and well-being of people and communities are threatened when health care professionals are unable to provide medical care that patients need, free from legislative interference in the practice of medicine.”

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