Arizona High Court Explains Decision Affirming Legislative Council’s Publicity Pamphlet Summary for 2024 Abortion Initiative

By Eric Spencer, Joseph Kanefield¹, and Kristen N. Iteen

In August 2024, the Arizona Supreme Court issued a decision holding that the Arizona Legislative Council’s analysis of the Arizona Abortion Access Act Initiative (Prop 139), substantially complied with statutory requirements for impartiality. On April 3, 2025, the Court issued its full opinion, providing comprehensive guidance regarding the impartiality standards for ballot measure summaries.

Background:

Under state law, the Arizona Legislature’s Legislative Council Committee is charged with the task of preparing “an impartial analysis of the provisions of each ballot proposal” for inclusion in the Secretary of State’s publicity pamphlet, to ensure that the summary is presented clearly, concisely, and in understandable terms. The Council may also provide relevant background information, particularly how the proposed measure would affect existing laws.

In the 2024 election cycle, Prop 139 proposed amendments to the Arizona Constitution by establishing a fundamental constitutional right to abortion. Notably, the initiative explicitly introduced terminology (“fetus” and “fetal”) into the Arizona Constitution for the first time, contrasting with pre-existing statutory language that used the phrase “unborn human being.”

Legislative Council drafted an analysis of the proposed initiative, including a background reference to then-current state law’s prohibition on aborting an “unborn human being” prior to 15 weeks. The proponents of the initiative filed suit in Arizona for Abortion Access v. Montenegro, et al.,² challenging the Council’s use of the term “unborn human being,” as politically charged, and requested that the analysis exclusively employ the term “fetus.” They argued that the Council’s choice of terminology compromised the impartiality required by Arizona law. The trial court agreed.

In a detailed opinion authored by Justice King, the Arizona Supreme Court reversed the trial court and validated the Council’s approach. The Court explained:

By accurately noting that existing statutory law describes a pregnancy as involving an “unborn human being,” and then identifying that the Initiative proposes adding the terms “fetus” and “fetal” into the Arizona Constitution when creating “a fundamental right to abortion,” the Analysis provides background information about existing law and the measure’s proposed changes . . ..  This approach impartially puts voters on notice of exactly what they are voting for or against.³

Central to the Court’s reasoning was the concept that publicity pamphlet impartiality does not require sanitizing or altering statutory terms already embedded within existing Arizona law, even if such terms may carry perceived partisan implications: the ballot measure proponent “has not explained how a proper role of the judiciary includes suppressing a phrase that appears in existing law — and is even a dictionary definition of the proposed alternative term — on the basis that it may be too sensitive for public consumption.”⁴

The Court further emphasized that substituting “fetus” for the statutory language “unborn human being” would also not be neutral; rather, it would implicitly endorse the proponents’ own viewpoint, thus jeopardizing impartiality: “If the Council had used ‘fetus’ instead of ‘unborn human being’ (as the initiative’s proponent requested), it would have deviated from existing law’s text and placed its thumb on the scale in favor of the initiative under the guise of ‘neutral terminology.’”⁵

While asserting that it was not “adopt[ing] a bright-line rule that an analysis is impartial as a matter of law just because it recites statutory language,”⁶ the Court opinion underscores the broader significance of accurately reciting statutory language in informing voters. Justice King’s majority opinion emphasized the voters’ entitlement to precise statutory language, noting: “[t]he existing statute, including its specific terminology, reflects the policy and moral choice of the people through their elected representatives. The initiative, including its different terminology, reflects the policy and moral change offered to voters.”⁷

Chief Justice Timmer, joined by Justice Beene, dissented from the majority’s decision, signaling that the issue of linguistic impartiality may require further judicial scrutiny in future cases.

Implications of the Decision

This ruling carries significant implications for future ballot measure analyses conducted by Arizona’s Legislative Council. The decision highlights that impartiality, from the Court’s perspective, is closely tied to alignment with existing legal texts, underscoring the voters’ right to information free from editorialization or partisan advocacy.

Practical Guidance:

Given the clarity provided by this opinion, organizations and clients involved in drafting, sponsoring, or challenging ballot initiatives should consider the following:

Conclusion

This opinion by the Arizona Supreme Court reinforces stringent impartiality standards governing ballot measure analyses in Arizona. By affirming the Legislative Council’s statutory language choices as appropriately neutral and informative, the Court provides essential guidance for stakeholders involved in future ballot initiatives.