Arizona Supreme Court: Voter Pamphlet May Label Fetus ‘Unborn Human Being’

On August 15, the Arizona Supreme Court determined that the phrase “unborn human being” is permissible on a voter guide. This guide is intended to inform voters about a ballot measure aimed at constitutionalizing abortion rights.

The ruling overturned a previous decision made by a Maricopa County judge, establishing that the phrase meets the legal criteria necessary for inclusion on the pamphlet.

The Arizona Legislative Council, a nonpartisan body responsible for drafting the language used in these pamphlets, created the wording designed to inform voters about Proposition 139 ahead of the elections. This proposition would enshrine the right to seek an abortion up to fetal viability, which occurs around 23 to 24 weeks of gestation and was the standard prior to the Supreme Court’s Dobbs decision in 2022.

In drafting the pamphlet, the council adopted the term “unborn human being.” This terminology is generally associated with organizations that oppose abortion, while the medical community typically uses the term “fetus” to describe the gestational stage.

State Representative Nancy Gutierrez, one of the six Democrats on the council alongside eight Republicans, voiced her concerns about the approved term, stating it is “inflammatory” and lacks neutrality. Republicans countered this by arguing that “fetus” does not provide specificity.

Gutierrez expressed her frustration, saying, “Our voices are not heard often in committee. They overruled us like they did every single point on the ballot measures that day.”

Dawn Penich, communications director for Arizona for Abortion Access, suggested that the use of “unborn human being” is a deliberate move to sway public opinion against the amendment. “They have every right to do that in their own mailers and campaign commercials,” she stated, “but they cannot do that in what is supposed to be an objective and impartial document.”

On Monday, the Secretary of State’s office, led by Adrian Fontes, announced that the Arizona Abortion Access Act petition had successfully gathered 577,971 signatures—well above the required 383,923—to place Proposition 139 on the ballot.

In opposition, Arizona Right to Life has escalated its objections to the Supreme Court, launching a “Decline to Sign” campaign against the petition. After their initial efforts to stop the amendment failed, the organization is now claiming the petition was misleading.

Jill Norgaard, a board member for Arizona Right to Life, criticized the initiative, stating, “Their faulty abortion distortion petition is misleading.” She quoted an attorney associated with the campaign, who suggested that the initiative presented “unrestricted abortion up to and after fetal viability,” a claim that Norgaard believes is shrouded in unclear language.

Although Norgaard declined to participate in an interview, her group has filed a lawsuit against Fontes and Arizona for Abortion Access, asking for an expedited ruling prior to the ballot printing deadline on August 22.

Despite ongoing challenges, supporters of the amendment remain optimistic that it will appear on the ballot and succeed. Penich conveyed confidence, remarking, “We feel really confident that the same enthusiasm that got us to that historic number of signatures is going to show up on election day.”

The reversal of Roe v. Wade by the U.S. Supreme Court has placed Arizona at the forefront of a tumultuous legal environment regarding reproductive rights. This upheaval has significantly impacted healthcare providers and women seeking reproductive care amidst rapidly changing regulations.

In the aftermath of the rulings, Arizona has enforced a 15-week abortion ban and briefly considered a Civil War-era law banning nearly all abortions. Recently, Governor Katie Hobbs signed legislation to repeal the 1864 law, reflecting the ongoing flux in abortion-related regulations.

According to Penich, these shifts have complicated access to prenatal care, with some women struggling to find services as clinics respond to the changing legal landscape. She concluded, “We want to make sure we get out of this political flip-flopping. People are tired of it.”