Court Rules Arizona Voter Pamphlets Can Call an Embryo an ‘Unborn Human Being’

Arizona voters will decide whether to add abortion as a right to their state constitution in November, allowing abortions until about the 24th week of pregnancy

Thousands of protesters march around the Arizona Capitol after the Supreme Court decision to overturn the landmark Roe v. Wade abortion decision in Phoenix on June 24, 2022. Ross D. Franklin/AP Photo

Arizona’s Supreme Court decided Aug. 14 that an embryo or fetus can be called an “unborn human being” in information pamphlets for voters ahead of the state vote on abortion.

This November, Arizona voters will decide whether to enshrine abortion as a right in their state constitution. The proposed amendment would allow abortions until fetal viability, or about the 24th week of pregnancy.

The Arizona Secretary of State’s office announced on Aug. 12 that it had validated an estimated 577,971 signatures in support of a ballot measure, the Arizona For Abortion Access Act, to establish abortion as a constitutional right in the state.

In its decision, the Arizona Supreme Court ruled that Republican legislators’ use of “unborn human being” to refer to a fetus in the voter pamphlet “substantially complies” with the state’s impartiality requirements, reversing a lower court’s decision banning it.

“The permanent injunction and writ of mandamus granted by the superior court are vacated and the Secretary of State is authorized to prepare the publicity pamphlet,” the justices said.

However, two of the seven justices dissented from the overturning of the lower court’s decision and allowing the pamphlet to use the wording. The decision is three pages long, and it doesn’t include a full legal analysis. The justices have promised a full opinion and ruling in the coming days.

Superior Court Ruling Overturned

Before they cast their ballots, voters will have the chance to review a publicity pamphlet with detailed descriptions of each ballot initiative. The Legislative Council, a committee of state lawmakers, wrote the pamphlet.

Abortion advocates say the language used by the council, specifically calling an embryo or fetus an “unborn human being” is biased. Arizona for Abortion Access, a coalition of pro-abortion groups, including the ACLU of Arizona and Planned Parenthood Advocates of Arizona, sued the Legislative Council in July.

The group argued that the council’s language created an unfair emotional bias. Attorney Kory Langhofer, appearing for the council in the matter, argued that the language was impartial because it is factually true and the same is used in Arizona’s current abortion law.

The Maricopa County Superior Court sided with Arizona for Abortion Access. However, the Supreme Court has now overruled the lower court.

Praise and Condemnation

The Arizona Supreme Court decision drew swift criticism from the ballot measure’s backers, Arizona for Abortion Access, who argued the phrase “unborn human being” is neither impartial nor objective.

In its statement posted to social media platform X, the advocacy group said the decision could unfairly sway or influence voters.

“This means that Arizona voters won’t get to learn about the questions on their ballot in a fair, neutral, and accurate way but will instead be subjected to biased, politically-charged words developed not by experts but by anti-abortion special interests to manipulate voters and spread misinformation,” Arizona for Abortion Access said.

“We are deeply disappointed in this ruling, but will not be deterred from doing everything in our power to communicate to voters the truth of the Arizona Abortion Access Act and why it’s critical to vote YES to restore and protect access to abortion care this fall.”

Arizona House Speaker Ben Toma, head of the Legislative Council, applauded the Supreme Court’s decision.

“The ballot analysis prepared by the legislative council is intended to help voters understand current law,” he said in a media statement.

“Arizona’s 15-week law protects unborn children, while the abortion initiative essentially allows unrestricted abortions up until birth. It’s really that simple. The Arizona Supreme Court’s ruling is correct.”

Abortion is currently banned after 15 weeks in Arizona, with an exception if the life of the mother is in danger.