By Bob Christie
Capitol Media Services
PHOENIX -- What's supposed to be an "impartial'' explanation of a citizens' initiative enshrining the right to abortion in the constitution that voters will see in their official publicity pamphlet won't be free of contentious language on the hot-button issue.
And it may result in a lawsuit by supporters of the ballot measure to change it before voters get to see it.
The fight is over a requirement in Arizona law that requires the Legislative Council, a committee of lawmakers, to prepare what are supposed to be neutral explanations of the measures on the ballot. That will go out to the the homes of the more than four million registered voters.
One of those measures allow abortions for any reason through fetal viability, generally considered between 22 and 24 weeks, with allowances after that for material physical and mental health. It would replace current Arizona law which bars the procedure beyond 15 weeks.
The proposed ballot language to go out to voters starts with an explanation of that law, saying that abortions are illegal if the gestational age of the "unborn human being'' is more than 15 weeks. That drew sharp criticism from the lawyer representing the group behind the Arizona Abortion Access Act.
Attorney Austin Yost said it runs afoul of state Supreme Court rulings that say the publicity pamphlet language can't use loaded terms and partisan-backed descriptions. He suggested to the panel's eight Republicans and six Democrats that they change the term to "fetus,'' which is used later in the description.
"In the reproductive rights context, the phrase 'unborn human being' is tinged with partisan coloring,'' Yost told the panel. "It is frequently used by anti-abortion activists and it’s rooted in anti-abortion advocacy.''
House Speaker Ben Toma, R-Peoria, defended using the phrase, saying it was "fair and balanced'' because abortion opponents -- himself included -- consider other language dehumanizing.
"I think that you would grant that for many of us, we do in fact consider it an unborn human being,'' Toma said, noting that the description used both that term and fetus. "So it’s kind of using it both ways, because for us its not just a fetus, for us to being in at least a potential human being, if not an actual human being.''
And he suggested that using only the term "fetus'' would be partial to proponents of the initiative backers.
That’s not the case, Yost said.
"I don’t think using the word fetus is partial at all,'' Yost said. "I think that that is an objective and neutral term, and it's also the medically accurate term.''
That was also the conclusion of Rep. Stephanie Stahl Hamilton.
The Tucson Democrat said "fetus'' is the term used by the Department of Health and Human Services, the American College of Obstetricians and Gynecologists, and the Mayo Clinic.
But Senate Majority Leader Sen. Sonny Borrelli argued that using the term "fetus'' was inaccurate.
"Sir, an unborn horse, is that a fetus or is it an unborn horse?'' the Lake Havasu Republican asked Yost.
He didn't get a chance to answer as Toma, who was running the committee, sought to shut down the discussion.
"Let’s compose ourselves,'' Toma interjected.
But Borrelli continued.
"My point -- it's a horse,” Borrelli said.
"We're talking about a human being,'' he continued. "That’s in statute, its a human being.''
Yost said the fact that Borrelli was making that statement proves his point.
"Mr. Borrelli, I think that this discussion only underscores that this phrase is tinged with partisan coloring,'' he responded.
"And that's why the statute requires that the neutral impartial term that’s the medically accurate term, fetus.
In the end, all eight Republicans on the 14-member panel rejected the proposed change and voted to keep "unborn human'' in the explanation.
That, however, may not be the end of it.
"We are now weighing our options, including potential litigation, to ensure Arizona voters are presented with clear and accurate information before they cast their ballots this fall,'' said Cheryl Bruce manager of the Arizona for Abortion Access campaign in a prepared statement expressing her disappointment.
"The Arizona Legislative Council today chose to disregard its statutory duty to produce an impartial summary of the Arizona Abortion Access Act by rejecting our common-sense request to use neutral, universally-recognized medical terminology in their ongoing effort to put extremist politics above Arizona voters’ rights,'' she said.
Wording of the explanation of the abortion measure wasn't the only debate, what with 14 proposals going on the November ballot.
Throughout the meeting, Republicans rejected proposals from Democrats to change specific wording in the descriptions of measures sent to the ballot by the Republican-controlled Legislature with no support from minority Democrats. But they approved a handful of language tweaks suggested by GOP lawmakers.
Among the measures sent to the ballot by the Legislature is one focused on border enforcement. It allows law enforcement officers to arrest people suspected of illegally entering Arizona outside of a port of entry and empowers judges to order them deported.
The measure only takes effect if the U.S. Supreme Court allows Texas or another state that has enacted a similar law to enforce it. Other parts of Proposition 314 boost penalties for people without the legal right to be in the country from applying for or receiving public benefits and creates a new law targeting people who sell fentanyl that leads to an overdose death, with a presumptive sentence of 10 years in prison.
Democrats objected to the use of the phrase "illegal alien. They said the term is considered derogatory by many people.
"I know at the end of the day it may seem like we’re splitting hairs, but at the end of the day words matter,” said Stahl-Hamilton.
"When we use the word 'alien' it evokes something that is other,'' she said. "And if we are wanting to have laws and understand who comes into and out of our country I think we need to treat every person as a person, and not as something other.''
Republicans, including Rep. Travis Grantham. R-Gilbert, said using the term "alien'' is not only accurate but also what is used in federal law. Grantham read the dictionary definition of the term.
Democrats also objected, unsuccessfully, to the fact that the border measure and several others did not identify a funding source for new state costs, which state law says must be included.
Not all the measures that were given descriptions Monday may make it onto the November ballot.
Lawsuits have been filed challenging three of the measures the Legislature sent to the ballot, including the border measure and one that would eliminate regular retention elections for judges in larger counties as well as appeals and Supreme Court justices.
That ballot measure, Proposition 137, emerged after abortion rights supporters announced plans to try to get voters to reject Supreme Court Justices Clint Bolick and Kathryn King who voted to allow an old ban on nearly all abortions to be enforced; it was later repealed. Of note is that the measure on judicial elections would be retroactive: If it passes, it would let those justices keep their seats even if voters reject them.
And one measure put on the ballot by lawmakers competes directly with one of the citizen initiatives.
The initiative would raise the minimum wage by at least $1 an hour over each of the next two years raise and eliminate lower pay now allowed for workers who also get tips. By contrast, the referral sent to the ballot by GOP lawmakers would set that lower wage for tipped workers in stone.
Democrats tried to get the description changed to specifically note that it would result in result in lower wages for tipped workers.
Sen. Mitzi Epstein, D-Tempe, said it would cut hourly wages for those workers from $11.35 an hour to $10.75 an hour. Current law allows employers to pay $3 an hour below minimum wage if workers' tips exceed that.
Toma said Epstein was misreading the law.
“This is not a pay cut,” he said.
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