Judge strikes use of "unborn human being" from right to abortion ballot initiative description

On Thursday, a judge ruled to strike the phrase “unborn human being” from the description of a ballot initiative that would place the right to abortion in Arizona’s constitution.

“The term ‘unborn human being’ is packed with emotional and partisan meaning, both for those who oppose abortion and for those who endorse a woman’s right to choose whether to have an abortion,” Maricopa Superior Court Judge Christopher Whitten wrote.

Arizona for Abortion Access–the nonprofit organization leading the Arizona Abortion Access Act–moved to stop the Secretary of State from printing the Legislative Council’s analysis of the group’s abortion-rights initiative until the language is changed. The Legislative Council’s analysis must be free from any “misleading tendency, whether of amplification, of omission, or of fallacy” and it cannot have partisan coloring, according to a previous ruling in Reform v. Greene.

Republican lawmakers attempted to urge Whitten that the phrase “unborn human being”–a term frequently used by abortion opponents–is impartial and neutral as it is language taken from current state law. But Arizona for Abortion Access says the most appropriate term would be “fetus” as that is what is used in the medical field. Those who oppose the term “fetus” say the medical application of phrases is irrelevant as the analysis is meant for voters–not doctors. They also argue that the use of “fetus” or “unborn human” can be considered loaded depending on which side you are on.

In his ruling, Whitten said Republican lawmakers did not provide much support for their argument other than the phrase being a matter of law. He further said that even though the phrase comes from Arizona law, it does not mean that it is neutral since the legislature is not required to choose words that are neutral. Whitten did not rule on what term should be used instead.

The Legislative Council will now have to strike the phrase “unborn human being” from its description of the Arizona Abortion Access Act and instead create an impartial summary that replaces the phase with a neutral term.

Arizona for Abortion Access is celebrating the win, but expects more litigation to come in the future.

“We are pleased to be one step closer to making sure Arizona voters get accurate and impartial information about our citizen-led effort to restore abortion access before they vote this fall,” the group said in a statement. “Though we expect and are prepared for an appeal, this is important progress toward giving Arizona voters the power to make an informed decision in support of protecting our reproductive freedoms once and for all.”