Arizona for Abortion Access v. Montenegro

• Docket Number: CV-24-0167-AP/EL
• Decision Date: 03 April 2025
• Citation: Arizona for Abortion Access v. Montenegro, CV-24-0167-AP/EL (Ariz. Apr 03, 2025)
• Parties: Arizona for Abortion Access, PlaintiffAppellee, v. Steve Montenegro, et al., [*] Defendants/Appellants.
• Court: Arizona Supreme Court

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Arizona for Abortion Access, PlaintiffAppellee, v. Steve Montenegro, et al., ^[*]Defendants/Appellants.

No. CV-24-0167-AP/EL

Supreme Court of Arizona

April 3, 2025

Appeal from the Superior Court in Maricopa County The Honorable Christopher T. Whitten, JudgeNo. CV2024-017968

Kristin K. Mayes, Arizona Attorney General, Kara Karlson Senior Litigation Counsel, Karen J. Hartman-Tellez, Senior Litigation Counsel, Kyle Cummings, Assistant Attorney General, Phoenix, Attorneys for Adrian Fontes

Kory Langhofer, Thomas Basile, Statecraft, Phoenix, Attorneys for Steve Montenegro, Warren Petersen, Shawnna Bolick, Sonny Borrelli, Sine Kerr, Travis Grantham, Teresa Martinez, and Quang Nguyen

D Andrew Gaona, Austin C. Yost, Andrew T. Fox, Malvika A Sinha, Coppersmith Brockelman PLC, Phoenix, Attorneys for Arizona for Abortion Access

Rhonda L. Barnes, Arizona House of Representatives, Phoenix, Attorney for Lupe Contreras, Nancy Gutierrez, and Stephanie Stahl Hamilton

Elizabeth Higgins, Arizona Senate, Phoenix, Attorney for Mitzi Epstein, Brian Fernandez, and Juan Mendez

Joshua D. Bendor, Alexander W. Samuels, Luci D. Davis, Office of the Attorney General, Phoenix, Attorneys for Amicus CuriaeKristin K. Mayes

Nathan J. Fidel, Miller, Pitt, Feldman &McAnally P.C., Phoenix; James Patrick Davy, All Rise Trial &Appellate, Philadelphia, PA; Joshua A. Rosenthal, Jordan Phillips, Public Rights Project, Oakland, CA, Attorneys for Amici CuriaeSara Benatar, Steve Gallardo, Alma Hernandez, Consuelo Hernandez, Cheryl Mango-Paget, Regina Romero, and Debra Stark

JUSTICE KINGauthored the Opinion of the Court, in which VICE CHIEF JUSTICE LOPEZ and JUSTICES BRUTINEL (RETIRED) and PELANDER (RETIRED) joined.^[**]JUSTICE MONTGOMERY authored a concurring opinion.CHIEF JUSTICE TIMMER authored a dissenting opinion, in which JUSTICE BEENE joined.

KING JUSTICE

¶1 The Secretary of State is required to prepare a publicity pamphlet that is mailed to every household that has a registered voter before a general election.A.R.S. § 19-123(A), (B).The publicity pamphlet contains information about any measure or proposed amendment to the Arizona Constitution on the ballot, including an analysis of each ballot proposal prepared by the Legislative Council("Council").§ 19-123(A)(1)-(4).The Council must prepare "an impartial analysis of the provisions of each ballot proposal of a measure or proposed amendment."A.R.S. § 19-124(C).This "analysis shall include a description of the measure and shall be written in clear and concise terms avoiding technical terms wherever possible.The analysis may contain background information, including the effect of the measure on existing law."Id.

¶2 The Council approved an analysis ("Analysis") for the Arizona Abortion Access Act InitiativeI-05-2024("Initiative"), which appeared on the November 5, 2024 general election ballot.The Analysis began with an accurate description of existing law: "Current state law prohibits a physician from performing an abortion if the probable gestational age of the unborn human being is more than 15 weeks, except when a pregnant woman's medical condition necessitates an immediate abortion to avert the pregnant woman's death or for which a delay creates a serious risk of substantial and irreversible impairment of a major bodily function."SeeA.R.S. § 36-2322.The Analysis then described how the Initiative would amend the Arizona Constitution, including an express statement that every individual has a fundamental right to abortion and a prohibition on certain state action with respect to abortion that adds the terms "fetus" and "fetal" into the Arizona Constitution.

¶3 The proponent of the Initiative claims the Analysis violates § 19-124(C)'s impartiality requirement because "unborn human being" is used when describing existing law and requests that "fetus" be used instead.After considering the briefs and authorities filed by the parties and amici, we issued a decision order on August 14, 2024, concluding that the Analysis provides the information required by § 19-124(C) and substantially complies with the statute's impartiality requirement.SeeTobin v. Rea, 231 Ariz. 189, 193 ¶ 11(2013);Ariz. Legis. Council v. Howe, 192 Ariz. 378, 384 ¶ 22(1998).We reversed the superior court's ruling that the inclusion of "unborn human being" in the Analysis violates § 19-124(C) and now explain our reasoning.^[1]

BACKGROUND

¶4Section 36-2322 sets forth a gestational limit on abortions.Subsection (A) provides: "Except in a medical emergency a physician may not perform, induce or attempt to perform or induce an abortion unless the physician or the referring physician has first made a determination of the probable gestational age of the unborn human being and documented that gestational age in the maternal patient's chart."§ 36-2322(A)(emphasis added).Subsection (B) provides: "Except in a medical emergency, a physician may not intentionally or knowingly perform, induce or attempt to perform or induce an abortion if the probable gestational age of the unborn human being has been determined to be greater than fifteen weeks."§ 36-2322(B)(emphasis added).

¶5 Arizona for Abortion Access ("Committee") is the political action committee that sponsored the Initiative.The Initiative proposes adding a new section 8.1 to article 2 of the Arizona Constitution.The text of the proposed constitutional amendment states in relevant part:

A.Every individual has a fundamental right to abortion, and the state shall not enact, adopt or enforce any law, regulation, policy or practice that does any of the following:

1.Denies, restricts or interferes with that right before fetal viability unless justified by a compelling state interest that is achieved by the least restrictive means.

2.Denies, restricts or interferes with an abortion after fetal viability that, in the good faith judgment of a treating health care professional, is necessary to protect the life or physical or mental health of the pregnant individual. .... B.For the purposes of this section, ....

2.'Fetal viability' means the point in pregnancy when, in the good faith judgment of a treating health care professional and based on the particular facts of the case, there is a significant likelihood of the fetus's sustained survival outside the uterus without the application of extraordinary medical measures.

(Emphasis added.)Thus, the Initiative is not limited to abortions pre-viability.The Initiative addresses abortions at all stages of a pregnancy.

¶6 On July 8, 2024, the Council held a public meeting to discuss a draft analysis prepared by Council staff, consider any proposed amendments, and approve the final analysis.The draft analysis stated:

Current state law prohibits a physician from performing an abortion if the probable gestational age of the unborn human being is more than 15 weeks, except when a pregnant woman's medical condition necessitates an immediate abortion to avert the pregnant woman's death or for which a delay creates a serious risk of substantial and irreversible impairment of a major bodily function.

Propositionwould amend the Arizona Constitution to:

1.Expressly state that every individual has a fundamental right to abortion.

2.Prohibit this state, any agency of this state or any political subdivision of this state from enacting, adopting or enforcing any law, regulation, policy or practice that would do any of the following:

(a) Deny, restrict or interfere with the fundamental right to abortion before fetal viability(the point in pregnancy when, in the good faith judgment of a treating health care professional and based on the particular facts of the case, there is a significant likelihood of the fetus's sustained survival outside the uterus without the use of extraordinary medical measures) unless justified by a compelling state interest that is achieved by the least restrictive means.The measure defines 'compelling state interest' as a law, regulation, policy or practice that is enacted or adopted for the limited purpose of improving or maintaining the health of an individual seeking an abortion consistent with clinical practice standards and evidence-based medicine and that does not infringe on that individual's autonomous decision-making.

(b) Deny, restrict or interfere with an abortion after fetal viability that, in the good faith judgment of a treating health care professional, is necessary to protect the life or physical or mental health of the pregnant individual.

(c) Penalize any individual or entity for aiding or assisting a pregnant individual in exercising the pregnant individual's right to abortion as provided in the measure.

(Emphasis added.)

¶7 As noted, when describing current state law, the draft analysis used the precise term found in § 36-2322: "unborn human being."At the meeting, the Committee requested that the Council replace "unborn human being" with "fetus," arguing that "in the reproductive rights context, the phrase 'unborn human being' is tinged with partisan coloring."The Committee claimed that "fetus" is the neutral, objective, and medically accepted term.A majority of the Council rejected the Committee's proposed amendment and voted to adopt the draft analysis without amendment.

¶8 The Committee filed a complaint in superior court, alleging that inclusion of "unborn human being" in the Analysis violated the impartiality requirement in § 19-124(C).The superior court conducted an evidentiary hearing and trial on the merits, in which the court heard argument from both parties, examined admitted documents, and considered testimony from the Committee's witness, Dr Patricia Habak, a board-certified obstetrician-gynecologist.The court concluded...