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Republican lawmakers that used the phrase “unborn human being” to describe the Arizona Abortion Access Act in a voter information pamphlet are pushing back on a lawsuit accusing them of unlawful partisanship, defending the phrase as impartial and legally accurate.
“The accuracy of this statement is uncontroverted and incontrovertible,” wrote attorneys for the GOP legislators. “Plaintiff’s indignation that the Legislative Council did not bowdlerize the laws of the state to suit its political sensibilities is not a redressable legal claim.”
The controversy arose from a summary of the abortion rights ballot measure approved earlier this month by a GOP-majority legislative council that includes the phrase “unborn human being” in the first sentence. Unless a court decides to force lawmakers to revise the description, it will appear in the publicity pamphlet sent to voters before the November election.
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State law mandates that lawmakers create an “impartial analysis” for voters to consider. The campaign behind the abortion initiative filed a lawsuit to prevent the summary from being added to the voter information pamphlet, arguing that it’s unlawful because it injects partisan language into what should be a neutral description.
Attorneys for the campaign urged Maricopa County Superior Court to order that lawmakers replace the word with the “medically accurate” term “fetus.”
But GOP lawmakers asked the court to throw out the lawsuit instead, saying that the decision to use “unborn human being” was based on an unbiased analysis of the state’s current abortion laws. The same statute that requires lawmakers to write an “impartial” summary of each ballot measure allows an analysis of how the proposal will affect existing laws if voters pass it.
Currently, abortions in Arizona are illegal after 15 weeks of gestations, with no exceptions for rape or incest victims. If a majority of Arizonans cast their votes in favor of the abortion rights ballot initiative in November, the 15-week limit would be nullified, and women across the state would have guaranteed access to the procedure up to the point of fetal viability, which is generally regarded to be around 24 weeks of pregnancy. The measure also includes exceptions beyond that point if a health care provider deems an abortion necessary to safeguard the life, physical or mental health of their patient.
According to Republican lawmakers, the description of the Arizona Abortion Access Act simply “parrots” the language already in the 15-week law to help voters understand the legal context. That, they argued, should dispel any concerns of partisan biases.
“An analysis that describes relevant existing laws by quoting them verbatim is the quintessence of an impartial summary,” reads the brief.
And, attorneys for the eight GOP lawmakers who on the Legislative Council panel added, beginning the description by referencing the 15-week law is critical, because the state’s abortion laws have seen repeated upheaval since the U.S. Supreme Court struck down the constitutional right to the procedure in 2022.
Less than three months ago, the legislature repealed a near-total ban from 1864 that the state Arizona Supreme Court ruled was once again enforceable.
Proponents of the abortion rights initiative argue that “fetus” is the more impartial term because it is widely used by medical, scientific and government agencies. By contrast, the phrase “unborn human being” has frequently been wielded by anti-abortion groups.
But while Republican lawmakers acknowledged that “unborn human being” is preferred by pro-life advocates during the council meeting that adopted the language, their attorneys rebutted that there’s no proof the phrase is more incendiary than the alternative requested by the campaign. Like “fetus,” the term “unborn human being,” also appears in state laws — it appears just twice, compared to 19 uses of “fetus” — court rulings, federal statutes and medical journals, GOP lawmakers argued in their response. And, they noted, the two terms describe the same thing, meaning that “unborn human being” is no less medically accurate than “fetus.”
In the end, wrote attorneys, whether or not the medical community supports the use of the phrase “unborn human being” is irrelevant, because the language used in state laws is up to lawmakers to decide and judges are responsible for analyzing the text of the laws and not how outside parties might perceive it.
Even if judges were allowed to take external sources into consideration, the attorneys argued, then the voter’s perspective and not the physician’s would be upheld. Medical terms would only serve to confuse voters. And, they pointed out, the same law that requires lawmakers to use “impartial” descriptions also directs them to avoid “technical terms wherever possible.”
The attorneys also argued that Arizonans elected GOP lawmakers to represent them, and those lawmakers approved the inclusion of “unborn human being” into the 15-week law. That transformed the phrase into a purely legal description, free from political bias, according to Republican lawmakers.
“The people of Arizona, through their elected representatives, have employed the words ‘unborn human being’ to describe the object of an abortion,” reads the brief. “In this context, that phrase is not a pro-choice or a pro-life term; it is a legal term.”
A hearing in the case is scheduled for July 25 at 12:00 PM.
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