Arizona Right to Life v. Fontes

SUPREME COURT OF ARIZONA

ARIZONA RIGHT TO LIFE, ) Arizona Supreme Court
) No. CV-24-0180-AP/EL
Plaintiff/Appellant, )
) Maricopa County
v. ) Superior Court
) No. CV2024-019610
ADRIAN FONTES, et al., )
)
Defendants/Appellees. )
)
__________________________________) FILED 08/20/2024

DECISION ORDER

The Court en banc has considered the briefs and authorities in

this expedited election appeal concerning the “Arizona Abortion

Access Act” (the “Initiative”), serial number I-05-2024, a ballot

initiative to adopt an amendment to the Arizona Constitution

establishing a fundamental right to abortion in the Arizona

Constitution and preventing the State from denying, restricting, or

interfering with this right in specific circumstances. The superior

court concluded that the 200-word description (the “Description”)

accurately described the Initiative under A.R.S. § 19-102(A) and

denied Plaintiff/Appellant’s request to enjoin the Secretary of State

from including the Initiative on the 2024 general election ballot.

Plaintiff/Appellant appealed.

As this Court has noted in a previous case concerning abortion,

our resolution of this appeal “does not rest on the justices’ morals

or public policy views regarding abortion.” Planned Parenthood

Ariz., Inc. v. Mayes, 257 Ariz. 110, 111 ¶ 1 (2024). Rather, our

task is to apply the law governing initiative descriptions fairly and
Arizona Supreme Court No. CV-24-0180-AP/EL
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impartially in the context of the people’s exercise of the

legislative power through the initiative. See League of Ariz. Cities

& Towns v. Brewer, 213 Ariz. 557, 559–60 ¶¶ 8–10 (2006).

Therefore, upon consideration,

The Court unanimously concurs in the superior court’s analysis

and conclusion. A.R.S. § 19-102(A) requires an initiative petition

to “[i]nsert a description of not more than two hundred words of the

principal provisions of the proposed measure or constitutional

amendment.” The superior court was required to disqualify the

Initiative from the ballot only if the Description either (1)

“omitted a ‘principal provision’ of the measure” or (2) failed to

accurately communicate the principal provisions’ general objectives.

Molera v. Hobbs, 250 Ariz. 13, 19 ¶¶ 8, 10 (2020) (“Molera II”).

Plaintiff/Appellant does not argue that the Description omits a

principal provision. Instead, it challenges the Description’s

accuracy in describing these provisions.

We have noted that “[r]easonable people can differ about the

best way to describe a principal provision, but a court should not

enmesh itself in such quarrels.” Id. at 20 ¶ 11. A 200-word

description complies with § 19-102(A) if it “would alert a reasonable

person to the principal provisions’ general objectives.” Id. A

description is deficient if it “either communicates objectively false

or misleading information or obscures the principal provisions’ basic

thrust.” Id. ¶ 13.
Arizona Supreme Court No. CV-24-0180-AP/EL
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The principal provisions of the Initiative are (1) the

establishment of a fundamental right to abortion under the Arizona

Constitution; (2) the scope of that fundamental right, before and

after fetal viability; and (3) the preclusion of the State from

penalizing a person for assisting another to exercise that right.

The Description explains each of these provisions and the tests that

would apply to restrictions upon that right. Nothing in the

Description “either communicates objectively false or misleading

information or obscures the principal provisions’ basic thrust,” in

violation of § 19-102(A). See id.

We reject Plaintiff/Appellant’s arguments to the contrary. The

Description is not required to explain the Initiative’s impact on

existing abortion laws or regulations. See Molera II, 250 Ariz.

at 21 ¶ 20. Moreover, a reasonable person would necessarily

understand that existing laws that fail the prescribed tests would be

invalid rather than continue in effect. See, e.g., A.R.S. § 36-2322

(eff. Sept. 24, 2024) (existing law prohibiting elective abortions

after fifteen weeks).

Similarly, a reasonable person would assume that the “health

care provider” tasked with determining fetal viability would

ordinarily be the pregnant woman’s own treating physician, who is, by

virtue of such person’s profession, guided by ethical codes and

presumably acts in good faith to preserve her health.

Plaintiff/Appellant also argues that the Initiative itself is
Arizona Supreme Court No. CV-24-0180-AP/EL
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misleading. But that is not the issue before us under § 19-102(A).

”[T]he proper place to argue about the potential impact of an

initiative is in the political arena, in speeches, newspaper

articles, advertisements and other forums.” Tilson v. Mofford, 153

Ariz. 468, 473 (1987); see also Molera II, 250 Ariz. at 22 ¶ 23. We

find that principle dispositive of most of the claims at issue in

this case.

IT IS ORDERED affirming the superior court’s judgment denying

injunctive relief. The Secretary of State will proceed under Title

19, Arizona Revised Statutes, to include the Initiative in the

general election publicity pamphlet and to place it on the general

election ballot.

IT IS FURTHER ORDERED granting the request by Defendant/Appellee

Arizona for Abortion Access for taxable costs under A.R.S. §§ 12-341

and 12-342.

IT IS FURTHER ORDERED directing the Clerk to issue the mandate

forthwith. 1

DATED this 20th day of August, 2024.

____________/s/_______________
ANN A. SCOTT TIMMER
Chief Justice

1 Justice Bolick is recused, and the Honorable John Pelander, Justice
(Retired) of the Arizona Supreme Court, was designated to sit on the
case pursuant to article 6, section 3 of the Arizona Constitution.
Arizona Supreme Court No. CV-24-0180-AP/EL
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TO:
Timothy A LaSota
Jennifer Wright
Karen J Hartman-Tellez
Kara Karlson
Kyle R Cummings
D Andrew Gaona
Austin C Yost
Andrew Fox
Hon. Melissa Iyer Julian
Hon. Jeff Fine
Alberto Rodriguez
Hon. John Pelander
Malvika A Sinha
Daniel J Adelman
Nicholas Ansel
Karin Aldama
Skye L. Perryman
Carrie Y. Flaxman
Molly A. Meegan
Alexander Michael Del Rey Kolodin
Veronica Lucero
Nathan J Fidel
Jim Davy
Joshua Rosenthal
Jordan Phillips

blc