Arizona Supreme Court holds that Legislative Council’s use of statutory language “unborn human being” in voter pamphlet analysis substantially complied with A.R.S. § 19-124(C)’s mandate that it prepare “an impartial analysis.”

Under A.R.S. § 19-124(C), the Legislative Council is required to prepare “an impartial analysis of the provisions of each ballot proposal.”  For the 2024 voter publicity pamphlet, the Council prepared an analysis of the Arizona Abortion Access Act initiative, which proposed enshrining a fundamental right to abortion in the Arizona Constitution.  The Council’s analysis began with a description of current law: that abortion is prohibited “if the probable gestational age of the unborn human being is more than 15 weeks,” with certain exceptions.

Proponents of the initiative argued that “unborn human being” was emotionally and politically charged, and that the Council should have substituted “fetus” to maintain neutrality and comply with A.R.S. § 19-124(C).  The superior court agreed, ordering the Legislative Council to strike the phrase “unborn human being” and replace it with neutral language.

The Arizona Supreme Court reversed, holding that the Legislative Council’ analysis substantially complied with A.R.S. § 19-124(C)’s requirement that the analysis be impartial.  The Court reasoned that because the “unborn human being” language directly quoted A.R.S. § 36-2322, it did not constitute advocacy and instead accurately reflected existing law. The Court distinguished prior cases where it concluded that analyses were not impartial because they departed from the text of existing law or the initiative or omitted relevant contextual information.  Here, the Court concluded that quoting the statute verbatim and contrasting it with the initiative’s proposed changes was the most neutral way to present the issue to voters, and that substituting alternative language would have skewed the analysis in favor of the initiative. The Court emphasized that both the existing statute and the initiative reflect different policy choices and that it is not the judiciary’s role to sanitize contentious language that accurately appears in law.

Chief Justice Timmer dissented, joined by Justice Beene, arguing that “unborn human being” was inherently partisan and that its inclusion undermined the impartiality of the Council’s analysis.

Justice King authored the Opinion of the Court, in which Vice Chief Justice Lopez and Justices Brutinel (ret.) and Pelander (Ret.) joined. Justice Montgomery concurred.

Posted by: Molly Walker