Arizona for Abortion Access v. Montenegro

IN THE

SUPREME COURT OF THE STATE OF ARIZONA
ARIZONA FOR ABORTION ACCESS,
Plaintiff/Appellee,

v.

STEVE MONTENEGRO, ET AL.,*
Defendants/Appellants.

No. CV-24-0167-AP/EL
Filed April 3, 2025

Appeal from the Superior Court in Maricopa County
The Honorable Christopher T. Whitten, Judge
No. CV2024-017968
REVERSED

COUNSEL:

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

_________________________
* Pursuant to Arizona Rule of Civil Appellate Procedure 27(c)(2), the name
of Defendant/Appellant has been changed from Ben Toma, in his official
capacity as Speaker and member of the House of Representatives for the
State of Arizona, to Steve Montenegro, in his official capacity as Speaker
and member of the House of Representatives for the State of Arizona.

ARIZONA FOR ABORTION ACCESS v. MONTENEGRO, ET AL.
Opinion of the Court

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 Curiae Kristin 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 Curiae Sara Benatar, Steve Gallardo, Alma Hernandez, Consuelo
Hernandez, Cheryl Mango-Paget, Regina Romero, and Debra Stark

JUSTICE KING authored 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.

_________________________
** Justice Brutinel participated in the decision order that was issued in this
case on August 14, 2024. He retired before this Opinion was issued, but
nevertheless participated in deciding the case and joined in this Opinion.
Justice Clint Bolick has recused himself from this case. Pursuant to
article 6, section 3 of the Arizona Constitution, Justice John Pelander (Ret.)
of the Arizona Supreme Court was designated to sit in this matter.

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JUSTICE KING, Opinion of the Court:

¶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 Initiative I-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.” See A.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. See
Tobin 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

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inclusion of “unborn human being” in the Analysis violates § 19-124(C) and
now explain our reasoning. 1

BACKGROUND

¶4 Section 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.
....

1 The Arizona electorate approved the Initiative at the November 5, 2024
general election.

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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.

Proposition ___ would 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
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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 that the
Analysis failed to comply with § 19-124(C) because “[t]he term ‘unborn

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human being’ is packed with emotional and partisan meaning, both for
those who oppose abortion and for those who endorse a woman’s right to
choose whether to have an abortion.” The court granted relief to the
Committee and ordered the Council “to strike the phrase ‘unborn human
being’ from its description of the Arizona Abortion Access Act and, instead,
adopt an impartial summary of the Initiative that replaces that phrase with
a neutral term which complies with A.R.S. § 19-124(C).”

¶9 Several members of the Council challenged the superior
court’s order in this Court by filing an expedited election appeal, which this
Court treated as a special action. Those members were Speaker of the
Arizona House of Representatives Ben Toma, President of the Arizona State
Senate Warren Petersen, Senators Shawnna Bolick, Sonny Borrelli, and Sine
Kerr, and Representatives Travis Grantham, Teresa Martinez, and Quang
Nguyen (collectively “Appellants”). We accepted special action
jurisdiction because there was no equally plain, speedy, and adequate
remedy by appeal given the time constraints for printing and mailing the
publicity pamphlet. See Tobin, 231 Ariz. at 193 ¶ 8; see also Howe, 192 Ariz.
at 382 ¶ 10.

DISCUSSION

¶10 Whether the Council prepared an “impartial analysis” under
§ 19-124(C) is an issue of law that we review de novo. See Voice of Surprise
v. Hall, 255 Ariz. 510, 513 ¶ 11 (2023) (“We review the interpretation and
application of statutes de novo as issues of law.”). Special action relief is
appropriate if the superior court’s ruling is arbitrary, capricious, or an
abuse of discretion. Tobin, 231 Ariz. at 194 ¶ 14. “Misapplication of law
or legal principles constitutes an abuse of discretion.” Id.

A. The Council Must Prepare An “Impartial Analysis” Of A
Proposed Measure Or Constitutional Amendment.

¶11 The Council is a statutory agency, established under Arizona
Revised Statutes title 41, chapter 8 (“Agencies of the Legislative
Department”). See Fairness & Accountability in Ins. Reform v. Greene, 180
Ariz. 582, 588 (1994). The Council “acts in an administrative or ministerial
role, rather than in any legislative capacity, in fulfilling its legislatively
imposed duty to prepare and file with the secretary of state an impartial

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analysis of initiative proposals.” Id. at 588–89. In Greene, this Court held
that whether the Council carried out its statutory responsibility to prepare
an impartial analysis is subject to judicial review and an issue over which
this Court has jurisdiction. Id. at 590. Appellants argue that “[w]hether
the words of the law conform to some external paradigm of ‘impartiality’ is
not a question the judiciary can answer,” but they do not ask us to overrule
Greene.

¶12 “The Council’s function on initiative . . . proposals is to assist
the people in deciding the issues by providing neutral information while
allowing the proponents and opponents of each measure to advocate with
arguments that . . . may be anything but neutral expositions. It is not the
Council’s function to assist either side.” Howe, 192 Ariz. at 383 ¶ 13.
Indeed, people may file arguments for or against the adoption of a ballot
proposal that appear separately in the publicity pamphlet. See
§ 19-123(A)(3) (providing that publicity pamphlet shall contain “arguments
for and against the measure or amendment”); § 19-124(A) (allowing
persons to file with the secretary of state “argument[s] advocating or
opposing the measure or constitutional amendment”); § 19-124(D) (“The
analyses and arguments shall be included in the publicity pamphlet
immediately following the measure or amendment to which they refer.”).

¶13 “[T]he purpose of the required analysis is to assist voters in
rationally assessing an initiative proposal by providing a fair, neutral
explanation of the proposal’s contents and the changes it would make if
adopted.” Greene, 180 Ariz. at 590. Section 19-124(C) requires the
Council to “produce a neutral explanation of initiative proposals, avoiding
argument or advocacy, and describing the meaning of the measure, the
changes it makes, and its effect if adopted.” Id. at 591. “The analysis and
description must eschew advocacy—argument—for or against the
proposal’s adoption.” Id. at 590. Likewise, the language “must be free
from any misleading tendency, whether of amplification, of omission, or of
fallacy, and it must not be tinged with partisan coloring.” Id. (quoting
Plugge v. McCuen, 841 S.W.2d 139, 140 (Ark. 1992)); see also Citizens for
Growth Mgmt. v. Groscost (“CGM”), 199 Ariz. 71, 72 ¶ 4 (2000); Howe, 192
Ariz. at 383 ¶ 13.

¶14 This Court reviews an analysis for “substantial compliance”
with § 19-124(C)’s impartiality requirement. Tobin, 231 Ariz. at 193 ¶ 11.

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“[T]he question is whether reasonable minds could conclude that the
Council met the requirements of the law, not whether we believe the
judicial system could itself devise a better analysis.” Howe, 192 Ariz. at 383
¶ 17. “By their very nature, most disputes over ballot proposals are
contentious. Thus, proponents and opponents are often dissatisfied with
the Council’s analyses. We cannot settle each of these disputes; our
function is only to ensure that a challenged analysis is reasonably impartial
and fulfills the statutory requirements.” Id.

B. The Analysis Substantially Complies With § 19-124(C)’s
Impartiality Requirement.

¶15 The Analysis begins with a description of “current state law”
and then describes how the Initiative “would amend the Arizona
Constitution.” The Committee does not claim that the Council’s
description of the Initiative itself is partial. There is no allegation that the
description of the Initiative’s provisions is inaccurate, incomplete,
misleading, or tinged with partisan coloring. See § 19-124(C) (stating the
Council shall prepare “an impartial analysis of the provisions of each ballot
proposal of a measure or proposed amendment”).

¶16 Instead, the Committee contends that the Council’s inclusion
of “unborn human being” when describing current state law violates the
impartiality requirement in § 19-124(C). On this point, however, it is
undisputed that the Analysis accurately describes existing law. See
§ 36-2322 (using “unborn human being” when identifying when and under
what circumstances an abortion may be performed).

1. Arizona Supreme Court Precedent Regarding An
“Impartial Analysis”

¶17 We are not writing on a clean slate. This Court has
previously decided challenges arising from the Council’s obligation to
prepare an impartial analysis. But this Court has never found that an
analysis violated the impartiality requirement where, as here, the Council
used precise statutory language to describe existing law and then explained
the text of the proposed measure and its effects. Instead, this Court has
concluded that analyses were not impartial where they departed from or
inaccurately described the text of existing law or the proposed measure or

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failed to include relevant contextual information. See Greene, 180 Ariz.
582; CGM, 199 Ariz. 71; Tobin, 231 Ariz. 189.

¶18 In Greene, this Court concluded that the Council’s analysis
failed to comply with the impartiality requirement because it departed from
the text of existing law and the initiative in several ways. 180 Ariz.
at 591–92. The initiative there sought to amend Arizona’s constitutional
provisions that (1) prohibit the enactment of laws that limit the amount of
damages for death or personal injury, (2) prohibit laws that abrogate the
right of action to recover damages for injuries, and (3) provide that the
defense of contributory negligence or assumption of the risk is a question
of fact for the jury. Id. at 584, 591 (citing Ariz. Const. art. 2, § 31; id. art. 18,
§§ 5–6)). The analysis stated:

The Arizona Constitution, enacted in 1912, prohibits the
people and their elected representatives from controlling
what kinds of civil lawsuits are brought into the courts and
how they are prosecuted. It also prohibits the people and their
elected representatives from limiting the amount of
compensation awarded during such lawsuits.

This proposition amends the Arizona Constitution to allow
people or their elected representatives to control: 1) the filing
and prosecution of civil lawsuits for personal injury and
wrongful death; 2) the amount of compensation awarded
during those lawsuits.

Id. at 591.

¶19 This Court determined that the analysis in Greene
“understate[d] the power already vested in the legislature and the people,
as well as the additional powers the amendment would create.” Id. The
analysis also incorrectly “implie[d] that Arizonans and their legislature
presently cannot control civil actions in any way.” Id. As this Court
explained, the relevant constitutional provisions apply only to actions for
death and injury—not to all “civil lawsuits.” Id. And while the Arizona
Constitution prohibits abrogation of the right of action to recover damages
for injuries, it does not preclude all statutory regulation or control of civil
lawsuits. Id. at 591–92.

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¶20 Moreover, the assertion that the initiative would amend the
Arizona Constitution to allow people to control civil lawsuits and damage
awards “crosse[d] well past the blurry line between impartiality and
advocacy” because the “people themselves already have the ability to
control, and even abolish, civil actions and damages.” Id. at 592. “A
disinterested analysis would not suggest the creation of a power that
already exists.” Id.

¶21 Further, the initiative did more than simply allow the
legislature to “control” civil lawsuits and compensation—it permitted “the
legislature to entirely abolish causes of action for injury.” Id. “The
adopted analysis subjectively minimize[d] this important effect.” Id.

¶22 The analysis in Greene also made “no reference at all to an
important provision of the initiative” concerning contributory negligence
and assumption of risk. Id. at 591–92. If “an initiative amends a small
number of distinct constitutional provisions, an impartial analysis and
description must include some reference to each of the affected provisions.”
Id. at 592. The analysis, therefore, was not impartial. Id.

¶23 Next, in CGM, this Court concluded that an analysis was not
impartial where the Council injected descriptive language that was not in
the text of existing law to suggest that the initiative was unnecessary
because existing law already provided the appropriate amount of
regulation. 199 Ariz. at 72–73 ¶¶ 6–8. The first two sentences of the
analysis stated that “Arizona cities, towns and counties currently have
extensive authority to regulate development and land uses” and their “local
planning powers have been expanded by new laws passed” just recently.
Id. at 72 ¶ 5 (emphasis added). The analysis then set forth the changes
purportedly made by those new laws. Id.

¶24 By including “extensive” and “expanded,” the analysis
attempted “to persuade the reader at the very outset that present laws
adequately address the perceived problems the initiative [sought] to
remedy,” and this was a “rhetorical strategy” that was not impartial. Id.
at 72–73 ¶ 6. Also, use of “extensive”— a term not in the statutory text—to
describe the authority of cities, towns, and counties to regulate land use had
a “partisan connotation[]” in the context of Arizona’s heated debate about

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growth. Id. at 73 ¶ 7. Further, the analysis stated that “present law
‘require[s] the development of comprehensive growth management
plans’”—but “nothing like the term ‘comprehensive growth management
plan’ is used in the . . . legislation, which merely continues the use of
‘general plans’ in dealing with growth-related matters.” Id. ¶ 8 (first
alteration in original). Because the analysis contained descriptive
language that departed from the text and meaning of existing law, this
Court concluded it was not impartial. Id. at 72–73 ¶¶ 6–8, 74 ¶ 13.

¶25 Finally, in Tobin, the first paragraph of the analysis described
the initiative as imposing a “tax increase” several times but omitted
relevant contextual information about the fact that the initiative’s proposed
new tax increase was “equivalent in amount to the current, temporary tax
increase and would take effect only when the latter expires.” 231 Ariz.
at 195 ¶ 18. That contextual information was necessary to provide voters
with a complete understanding of the initiative as it related to existing tax
laws. See id. “Without providing any such explanatory context, the
Council’s repeated reference to a ‘tax increase’ in the first paragraph of the
analysis ‘attempt[ed] to persuade the reader at the very outset’ that the
initiative [was] contrary to his or her financial interests.” Id. (quoting
CGM, 199 Ariz. at 72 ¶ 6).

¶26 In addition, the analysis in Tobin “misleadingly suggested the
[initiative] would more broadly limit tax base adjustments” and “that the
legislature may never adjust the sales tax base or reduce Arizona’s sales
tax.” Id. at 195 ¶ 22, 196 ¶ 26. The analysis failed to accurately explain
“the initiative’s qualified limitation on adjustment of the sales tax base.
Rather, the analysis overstate[d] that limitation and, therefore, tend[ed] to
mislead.” Id. at 196 ¶ 27.

¶27 Moreover, the analysis stated that the proposition did not
define who qualified as a “resident” for purposes of the student
scholarships, but it did not mention that many of the initiative’s other terms
were undefined. Id. ¶ 29. In doing so, “the Council selectively
emphasized that the initiative [did] not define ‘resident’ for student
scholarship purposes and referred to that omission as a ‘fail[ure],’ thereby
suggesting that the initiative [was] flawed in that respect.” Id. at 197 ¶ 32
(second alteration in original). The statement also overlooked “several

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Arizona statutes that, at least implicitly, suggest that illegal immigrants
would not qualify as ‘resident students’ for scholarship purposes.” Id.

¶28 The case before us significantly differs from Greene, CGM, and
Tobin. The reference to “unborn human being” when describing
“[c]urrent state law” does not depart from or inaccurately describe the text
of existing law or the proposed measure; does not misrepresent or create
misleading interpretations about the text of existing law or the proposed
measure; does not contain extraneous adjectives, adverbs, or commentary
chosen by the Council; does not omit relevant contextual information; and
does not selectively emphasize one omission in the initiative to the
exclusion of others. In this case, the Council recited the precise term used
in existing law to illustrate the changes the Initiative would make if
adopted.

2. The Committee’s Request For “Fetus” To Replace
“Unborn Human Being”

¶29 At the Council’s meeting and throughout this case, the
Committee has argued that “fetus” should be used in place of “unborn
human being” in the Analysis. But we cannot overlook the fact that the
dictionary definition of “fetus” is a human that is unborn. Fetus,
Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/fetus#medicalDictionary (last visited Mar. 27,
2025) (defining “fetus” as “an unborn or unhatched vertebrate especially
after attaining the basic structural plan of its kind . . . specifically: a
developing human from usually two months after conception to birth”)
(emphasis added); see also Fetus, Cambridge Dictionary,
https://dictionary.cambridge.org/us/dictionary/english/fetus (last
visited Mar. 27, 2025) (defining “fetus” as “a young human being or animal
before birth, after the organs have started to develop”) (emphasis added).
This alignment with the ordinary meaning of these terms is relevant to our
impartiality analysis. See In re Drummond, 257 Ariz. 15, 18 ¶ 7 (2024)
(stating that “courts generally give words their ordinary meaning and may
look to dictionary definitions”).

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a. Section 19-124(C) Directs That Technical Terms Shall
Be Avoided Wherever Possible.

¶30 The Committee argues that the Council’s use of “unborn
human being” is improper because “fetus” is the medically accepted term.
But the standard in § 19-124(C) is not whether a term is “medically
accepted” by trained medical providers. Instead, § 19-124(C) specifically
directs that “[t]he analysis . . . shall be written in clear and concise terms
avoiding technical terms wherever possible.” (Emphasis added.) See Howe,
192 Ariz. at 384 ¶ 19 (explaining that “use of technical, regulatory terms and
language is discouraged” and citing “controlled substances,” “Schedule I,”
and “the chemical names of the drugs, without examples or explanations”
as examples of such technical, regulatory terms). “Fetus” has a medical
definition that applies during a particular stage of the pregnancy. Fetus,
Dorland’s Illustrated Medical Dictionary 683 (33d ed. 2020) (defining
“fetus” as “the unborn offspring of any viviparous animal; specifically, the
unborn offspring in the postembryonic period, after major structures have
been outlined, in humans from nine weeks after fertilization until birth. Cf.
embryo.”); cf. id. at 600 (defining “embryo” as “in humans, the developing
organism from fertilization to the end of the eighth week. Cf. fetus.”).

¶31 Section 19-124(C)’s direction that non-technical terms be used
in place of technical terms wherever possible makes sense because voters
are then more likely to understand and rationally assess a proposed
measure. Two examples in the medical context demonstrate this point.
The phrase “myocardial infarction” is a medical term, but the
non-technical understanding of that term is “heart attack.” Heart
Attack, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/heart%20attack (last visited Mar. 27, 2025);
Myocardial Infarction, Merriam-Webster Dictionary, https://www.merria
m-webster.com/dictionary/myocardial%20infarction (last visited Mar. 27,
2025). Similarly, “edema” is a medical term, but it is more commonly
understood as “swelling.” Swelling, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/swelling (last visited
Mar. 27, 2025); Edema, Merriam-Webster Dictionary,
https://www.merriam- webster.com/dictionary/edema#medicalDiction
ary (last visited Mar. 27, 2025). An analysis of a health-related measure
intended to improve public health and reduce the rate of deaths caused by
“myocardial infarction” would more readily be understood by voters if it

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was described as a “heart attack” death reduction proposal. Put simply,
§ 19-124(C) recognizes that the use of non-technical terms where possible is
more likely to assist voters with understanding and rationally assessing a
proposed measure, in particular with voters who lack specialized training
or expertise in a technical area.

¶32 The Committee presented testimony from Dr. Habak in an
effort to support its claim that “fetus” is the medically accepted term. Dr.
Habak testified that based on her medical experience and training, “fetus”
is a medically accepted term and “unborn human being” is not, and her
testimony is consistent with the policy and position statements of the
American College of Obstetricians and Gynecologists (“ACOG”).

¶33 But Dr. Habak also acknowledged situations in the patient
care context in which she might hear variations of “unborn human being,”
like “unborn child,” or use the phrase herself. She also testified that she
did not search medical literature for use of the term “unborn human being”
in preparing for her testimony; she is aware that “unborn human being”
has appeared in some medical publications; she does not think the ACOG
policy (that “unborn human being” is not medically accepted) uses that
specific terminology in writing anywhere; there are situations where
someone might possibly use the term “unborn human being”; and the term
“unborn human being” has been used “when the audience is a group of
patients who are further along in pregnancy and have more of a thought of
what they should be doing during pregnancy with respect to the outcome
of a baby that’s going to be delivered.” Accordingly, Dr. Habak’s
testimony does not support a conclusion that the use of “unborn human
being” violates § 19-124(C)’s impartiality requirement. In fact, it
illustrates the technical nature of the term “fetus.”

b. Section 19-124(C) Provides That The Analysis May
Contain Background Information, Including The Effect
of A Measure On Existing Law.

¶34 Section 19-124(C) further specifies that the “analysis may
contain background information, including the effect of the measure on
existing law.” See Greene, 180 Ariz. at 590 (noting that, with respect to the
proposal, the analysis should provide “the changes it would make if
adopted”). And that is precisely what the Analysis does here.

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Opinion of the Court

¶35 The phrase “unborn human being” appears four times in the
relevant existing law, § 36-2322. See, e.g., § 36-2322(B) (“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.”). “Human being” is also defined in statute as
“an individual member of the species homo sapiens, from and after the
point of conception.” A.R.S. § 36-2321(5).

¶36 The Analysis contains the precise terminology—“unborn
human being”—that is used in § 36-2322’s declaration about when a
physician may not perform an abortion under existing statutory law (i.e.,
when “the probable gestational age of the unborn human being has been
determined to be greater than fifteen weeks,” except in a medical
emergency). The Analysis then uses the Initiative’s precise
terminology—“fetus” and “fetal”—when describing the prohibition on
state action that denies, restricts, or interferes with an abortion under the
Arizona Constitution if the measure passes. 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. See
§ 19-124(C). This approach impartially puts voters on notice of exactly
what they are voting for or against.

¶37 Stated otherwise, voting in favor of the Initiative supports
adding “fetus” and “fetal” into the Arizona Constitution in the context of
abortion. Voting against the Initiative rejects adding those terms for the
first time to the Arizona Constitution. Certain voters may find the existing
statutory law’s reference to “unborn human being” and the Initiative’s
reference to “fetus” and “fetal” important enough to tip the scale in favor
of voting for or against the Initiative. In other words, a voter may prefer
the term “unborn human being” over “fetus” (or vice versa). And the
record here supports this very point. During public comment at the
Council’s July 8, 2024 meeting, one individual publicly expressed that she
supported the term “unborn human” over “fetus.” Using the precise
terminology that appears in existing statutory law and the precise

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Opinion of the Court

terminology in the proposed constitutional measure “can reasonably be
regarded as an attempt to provide necessary and appropriate information
to the voting public.” Howe, 192 Ariz. at 384 ¶ 22.

¶38 The parties stipulated that “[p]ro-abortion advocates
generally use the term ‘fetus’ in their advocacy,” while “groups that
generally oppose abortion . . . use terms like ‘unborn children,’ ‘unborn
babies,’ and ‘preborn baby.’” By requesting that “fetus” replace “unborn
human being” in the Analysis, the Committee purportedly believes that
“fetus” will provide the Committee an advantage at the polls. But “[i]t is
not the Council’s function to assist either side.” Howe, 192 Ariz. at 383
¶ 13.

c. The Committee’s Out-Of-State Cases And Other
Arguments Do Not Support A Conclusion That The
Council Failed To Substantially Comply With
§ 19-124(C).

¶39 The Committee cites out-of-state cases where courts have
discussed terminology similar to “unborn human being” in proceedings
dealing with legal issues that are materially different from the issue before
us.

¶40 First, in Margaret S. v. Treen, 597 F. Supp. 636, 642 (E.D. La.
1984), plaintiff sought to prevent operation of certain Louisiana abortion
statutes, in part based on Roe v. Wade, 410 U.S. 113 (1973), overruled by Dobbs
v. Jackson Women’s Health Org., 597 U.S. 215 (2022). In addressing an
informed consent issue, the court determined that although one statute uses
the term “unborn child,” the statute “does not specifically mandate the use
of this terminology in the consent form provided to the abortion patient.”
Margaret S., 597 F. Supp. at 661. Thus, other terms may be used in
referring to the “unborn child” in consent forms, including “fetus” or
“conceptus.” Id. The court then stated in dicta, “[t]he evidence adduced
at trial established that these are medically accepted terms, unlike the term
‘unborn child,’ which could increase a woman’s guilt surrounding the
abortion decision by implying that she is taking the life of a person.” Id.
In support of this sentence, Margaret S. cited Roe, which has been overruled,
and Poe v. Gerstein, 517 F.2d 787 (5th Cir. 1975), which the Eleventh Circuit
recently recognized was abrogated by Dobbs in SisterSong Women of Color

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Opinion of the Court

Reproductive Justice Collective v. Governor of Georgia, 40 F.4th 1320, 1326
(11th Cir. 2022). See Margaret S., 597 F. Supp. at 661 n.21. Moreover, as
discussed, whether “fetus” is the medically accepted term is not the
applicable standard in § 19-124(C).

¶41 Second, Acuna v. Turkish, 930 A.2d 416, 418 (N.J. 2007) was a
medical malpractice action. The plaintiff claimed that she did not give the
physician informed consent to terminate her pregnancy, alleging he
“breached a duty owed to her by failing to inform her of ‘the scientific and
medical fact that [her six- to eight-week-old embryo] was a complete,
separate, unique and irreplaceable human being’ and that an abortion
would result in ‘killing an existing human being.’” Id. (alteration in
original). The court determined that New Jersey common law does not
command that a physician inform a pregnant mother “that an embryo is an
existing, living human being and that an abortion results in the killing of a
family member.” Id. at 428. In concluding that such a duty does not
exist, the court explained “there is no consensus in the medical community
or society supporting plaintiff’s position that a six- to eight-week-old
embryo is, as a matter of biological fact—as opposed to a moral, theological,
or philosophical judgment—‘a complete, separate, unique and
irreplaceable human being’ or that terminating an early pregnancy involves
‘actually killing an existing human being.’” Id. at 425–26. The court’s
analysis relied in part on Roe and Planned Parenthood of Southeastern
Pennsylvania v. Casey, 505 U.S. 833 (1992), which were both overruled by
Dobbs. Acuna, 930 A.2d at 426.

¶42 The Committee also cites Casey, in which Justice Scalia
concurred in part and dissented in part. 505 U.S. at 979. In explaining
his disagreement with Roe and the majority’s opinion in Casey, Justice Scalia
stated:

The whole argument of abortion opponents is that what the
Court calls the fetus and what others call the unborn child is
a human life. Thus, whatever answer Roe came up with after
conducting its ’balancing’ is bound to be wrong, unless it is
correct that the human fetus is in some critical sense merely
potentially human. There is of course no way to determine
that as a legal matter; it is in fact a value judgment. Some

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Opinion of the Court

societies have considered newborn children not yet human or
the incompetent elderly no longer so.

Id. at 982. As Justice Scalia acknowledged, some people prefer the term
“fetus” and others prefer “unborn child.” Id. And that supports our
point here: It is up to the informed voters of Arizona—not this Court in its
impartiality analysis—to decide which terminology is preferred in Arizona
law.

¶43 The Committee’s cited cases address legal issues that are
materially different from the issue before us, are based on state laws that
differ from the specific framework in § 19-124(C), and rely on precedent
that has since been overruled. We further note that other courts have used
terminology like that found in the Analysis. See Gonzalez v. Carhart, 550
U.S. 124, 134 (2007) (“Abortion methods vary depending to some extent on
the preferences of the physician and, of course, on the term of the pregnancy
and the resulting stage of the unborn child’s development.”); State v. Cotton, 197 Ariz. 584, 588 ¶ 15 (App. 2000) (“By its terms, the fetal manslaughter
statute applies only to the killing of an unborn child. It reflects a legislative
decision to afford protection to unborn children that was not available
under traditional homicide statutes because of the common law born alive
rule.”). The Committee’s cited cases do not support a conclusion that the
Analysis was partial under § 19-124(C).

¶44 The Committee also directs our attention to Speaker Toma’s
comments, at the July 8, 2024 meeting, that he believed using both terms
(“unborn human being” and “fetus”) is a fair and balanced approach in the
aggregate to deal with two terms that he believed are partial depending on
one’s personal views about abortion. As the Committee correctly points
out, this Court has rejected “a whole-is-greater-than-the-sum-of-its-parts
theory” which would allow “finding the entire analysis impartial even
though certain sentences or paragraphs are not.” CGM, 199 Ariz. at 73
¶ 11. But as discussed, the Council impartially followed both relevant
texts by reciting the precise terminology in existing law and the precise
terminology in the proposed measure. Speaker Toma’s thought process
about why he believed the Analysis would be impartial does not affect the
statutory inquiry before us.

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Opinion of the Court

¶45 Finally, as discussed, people may file arguments for or against
the adoption of a ballot proposal that appear separately from the analysis
in the publicity pamphlet. To that end, whether Arizona voters should (1)
support the Initiative that will create “a fundamental right to abortion” and
add the terms “fetus” and “fetal” to the Arizona Constitution for the first
time, or alternatively (2) reject the Initiative in favor of existing statutory
law that refers to “unborn human being,” is a point that can be debated in
the arguments section of the publicity pamphlet. People may submit
arguments, for example, that the term “fetus” is a medically accepted term
that should be in the Arizona Constitution in the context of abortion.

C. The Court’s Role Is To Ensure That Voters Are Informed Of The
Current Law And How A Proposed Measure Would Change The
Law Without Partisan Coloring Or Advocacy.

¶46 At bottom, the Committee seeks to judicially censor a
statutory phrase from a voter publication that it contends is packed with
emotional and partisan meaning. But how exactly does a judge decide
whether one term is too emotional for the public to view and rationally
assess? And how does a judge determine whether an overall issue, let
alone one term, is too controversial? The Committee has not suggested a
judicially manageable standard for doing so, even if it were wise or tenable
for the judicial branch to engage in such a task, a doubtful proposition.
Indeed, none of our prior cases have found impartiality lacking under
§ 19-124(C) based on an issue or term being too emotional or controversial.
The Committee also 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. In addition, the Committee
seeks a re-write of the Analysis in a manner that favors the Initiative, which
violates § 19-124(C)’s impartiality requirement.

¶47 The Council’s approach is the only clear path to achieving
impartiality under the circumstances. The existing law, 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. See Planned Parenthood Ariz., Inc. v. Mayes, 257 Ariz. 137, 153 ¶ 63
(2024) (“The abortion issue implicates morality and public policy concerns,

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ARIZONA FOR ABORTION ACCESS v. MONTENEGRO, ET AL.
Opinion of the Court

and invariably inspires spirited debate and engenders passionate
disagreements among citizens.”). By accurately describing existing law in
its present form and what the law will become if voters approve the
Initiative, the Analysis allows a fully informed electorate to decide for
themselves the moral and policy questions raised by the Initiative.

¶48 Our dissenting colleagues argue that our inquiry should focus
solely on whether one statutory phrase, “unborn human being,” viewed in
isolation, makes the entire Analysis partial. Infra ¶¶ 71, 83. But the
proper inquiry is whether the Analysis itself is “reasonably impartial,”
Howe, 192 Ariz. at 383 ¶ 17, and substantially complies with § 19-124(C),
Tobin, 231 Ariz. at 193 ¶ 11. To determine whether the Analysis is
impartial, this Court must not consider one phrase in isolation, but instead
must consider it in the context of the entire Analysis. See, e.g., BSI Holdings,
LLC v. Ariz. Dep’t of Transp., 244 Ariz. 17, 21 ¶ 19 (2018) (“We must not
interpret terms in isolation, but rather in their overall context.”); Protect Our
Ariz. v. Fontes, 254 Ariz. 288, 291 ¶ 1 (2023) (reviewing an initiative
description “in its entirety” to determine whether it communicates
objectively false or misleading information).

¶49 The dissent would affirm the superior court’s judgment
requiring the Council to remove “unborn human being” found in existing
law and replace it with “neutral terminology.” Infra ¶ 71. We recognize
that the Council’s role is to draft the analysis, and this Court’s role under
§ 19-124(C) is to determine whether such analysis is impartial. But it is
notable that neither the dissent nor the superior court explores how any
such “neutral terminology” could even be drafted in a manner that would
conform to what is in existing law. And while the dissent argues that
“unborn human being” promotes a “value judgment,” it does not suggest
how “fetus” (the Committee’s preferred term) is any less of a “value
judgment” or any less “tinged with partisan coloring” than “unborn human
being” in existing law. Infra ¶¶ 77–78. Indeed, if “fetus” were used, the
Council 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.”

¶50 The dissent, like the Committee, supports an analytical
framework that would require judges to determine whether a particular
subject matter is “hotly contested” or a “value judgment” that raises

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Opinion of the Court

“difficult moral, philosophical, and theological questions.” Infra
¶¶ 77–78, 83. But the dissent has not offered a judicially manageable
standard for determining what makes a subject matter too contentious in
the eyes of the public, such that the judiciary must order the removal of
certain language. Although this Court has set forth a standard to
determine whether an analysis itself is impartial under § 19-124(C), supra
¶ 13, it tellingly has never articulated a standard to determine whether a
subject matter or an accurately-defined statutory term is too emotional or
too controversial for public viewing under § 19-124(C).

¶51 Further, the dissent poses a hypothetical where “sweet,
innocent baby” appears in statute and the Council uses that phrase in an
analysis. Infra ¶ 73. We agree with our colleagues’ acknowledgment
that this example is “far-fetched.” But beyond that, this hypothetical
phrase is materially different from “unborn human being.” There is no
dispute that, in the context of this case, a “fetus” (whether pre- or
post-viability) is in fact “unborn” and “of the species homo sapiens” (the
definition of “human being” in § 36-2321(5)). The issue we must decide is
whether a Council analysis accurately presents statutory text in an
impartial manner, without partisan coloring or advocacy for what the
legislature enacted or what a proposed measure offers as an alternative. If
it does that, as the Analysis does here, the Council has substantially
complied with § 19-124(C).

¶52 Finally, the dissent argues that “unborn human being” is
“‘tinged with partisan coloring’ when used in describing the Initiative’s
impact.” Infra ¶ 77. Not so. The Analysis exclusively uses “fetus” and
“fetal” in describing what the Initiative will do if passed. The Analysis
uses “unborn human being” one time when accurately reciting “[c]urrent
state law,” which was appropriate background information. See
§ 19-124(C).

¶53 Distilled to its essence, the Committee and dissent’s approach
endeavors to sanitize emotion and controversy from the weighty moral and
public policy decision of whether to expand access to abortion under the
guise of § 19-124(C)’s impartiality requirement. This approach is unwise
and intrudes upon the prerogative of the legislative branch of government,
both the legislature and the people. The law requires impartiality in the
manner the Council describes the current law, the proposed changes to the

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Opinion of the Court

law, and the effect of such changes. The Analysis precisely quotes from
the current law, accurately details the Initiative’s proposed changes, and
describes the effect of the changes without value judgment or commentary.
This was the only clear path to impartiality in these circumstances. We
must trust our citizens to make fully informed judgments about the laws
that govern our society. The court’s role is to ensure that the voting public,
in determining the path forward, is informed of the current state of the law
and how it would change under the proposed measure.

¶54 In conclusion, the purpose of an analysis “is to assist voters in
rationally assessing an initiative proposal by providing a fair, neutral
explanation of the proposal’s contents and the changes it would make if
adopted.” Greene, 180 Ariz. at 590. While some groups may prefer
“fetus” and others prefer “unborn human being,” under these
circumstances it would not be fair or neutral to change the first sentence of
the Analysis to “fetus,” contrary to the text of existing law. See id.
Following the text of each—the current statute and the proposed
measure—without modifying the terminology in either is an impartial
approach that puts voters on notice of exactly what the measure will
change. It allows voters to understand the full nature of their decision and
rationally assess whether to vote for or against the Initiative because they
agree or disagree with relevant existing law. It is up to a fully informed
electorate, when deciding whether to vote for or against the Initiative, to
decide which terminology to support or reject.

¶55 This Court risks improper judicial interference if it selectively
omits or alters the “unborn human being” terminology used in the text of
existing law. We decline to deprive voters of relevant, accurate
information under the guise of impartiality.

¶56 For these reasons, the Analysis’s use of “unborn human
being” one time when accurately describing existing law is not lacking in
neutrality or argumentative as a matter of law. See Howe, 192 Ariz. at 384
¶ 19 (“On this record, deference must be given to the Council’s judgment.
Giving due deference, we cannot say that the Council’s use of names most
easily recognized by voters is, as a matter of law, so overemphasized as to
be misleading, inaccurate, lacking in neutrality, or argumentative.”). The
Analysis substantially complies with § 19-124(C). See Tobin, 231 Ariz.

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Opinion of the Court

at 193 ¶ 11. 2

¶57 To be clear, we do not adopt a bright-line rule that an analysis
is impartial as a matter of law just because it recites statutory language.
See § 19-124(C). Our lengthy examination of the issue before us, in the
context of the entire Analysis and all relevant provisions in § 19-124(C),
demonstrates this point. In the event of a challenge, courts must
undertake an analysis—as we have done here—to determine whether the
Council has substantially complied with § 19-124(C)’s impartiality
requirement.

CONCLUSION

¶58 We reverse the judgment of the superior court. The
Committee requests attorney fees under A.R.S. § 12-2030(A) and the private
attorney general doctrine. See Dobson v. State ex rel. Comm’n on App. Ct.
Appointments, 233 Ariz. 119, 124 ¶ 18 (2013). The Committee also requests
its taxable costs on appeal under A.R.S. §§ 12-341, -342. Because the
Committee is not the successful party in this action, we deny its request for
attorney fees and costs.

2 The Committee argued extensively in the superior court and this Court
that the Analysis should be revised to use “fetus” instead of “unborn
human being.” In this Court, the end of the Committee’s brief summarily
states that “[t]he Committee also has no objection to the term ‘pregnancy’
as suggested by the Attorney General’s amicus brief below.” But the
Committee did not sufficiently develop this argument in this Court, and we
therefore decline to address it. See Harris v. Warner, 255 Ariz. 29, 32 ¶ 10
n.1 (2023) (considering an argument waived that a party did not develop);
State v. Johnson, 247 Ariz. 166, 180 ¶ 13 (2019) (declining to consider an
argument the party failed to develop). We further note that amici are not
permitted to create, extend, or enlarge the issues on appeal. See Vangilder
v. Ariz. Dep’t of Revenue, 252 Ariz. 481, 493 ¶ 46 (2022).
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ARIZONA FOR ABORTION ACCESS v. MONTENEGRO, ET AL.
Justice Montgomery, Concurring

MONTGOMERY, J., concurring.

¶59 I fully concur in the majority’s analysis and conclusion. I
write separately to underscore what this case is not about and to further
highlight the impartiality of the Analysis. I also write separately to
address the dissent’s approach to determining impartiality.

I

¶60 This case, as a reminder, is not about the substance of the
Initiative beyond what was necessary to determine whether the Council
substantially complied with A.R.S. § 19-124(C). See, e.g., League of Ariz.
Cities & Towns v. Brewer, 213 Ariz. 557, 559 ¶ 10 (2006) (observing that “just
as the courts may not predetermine the substantive validity of the
legislature’s measures, so too must they refrain from predetermining the
substantive validity of the people’s initiatives, even if the ‘legislation might
conflict with the Arizona Constitution or state law’” (quoting Winkle v. City
of Tucson, 190 Ariz. 413, 415 (1997))). And this case does not address the
merits of the arguments for and against the Initiative. The sole matter this
Court considered was whether the Council substantially complied with
§ 19-124(C).

II

¶61 Section 19-124(C) requires the Council to “prepare and file
with the secretary of state an impartial analysis of the provisions of each
ballot proposal of a measure or proposed amendment,” which “shall
include a description of the measure and shall be written in clear and
concise terms avoiding technical terms wherever possible.” Additionally,
“[t]he analysis may contain background information, including the effect of
the measure on existing law . . . if the measure . . . is approved or rejected.”
§ 19-124(C). In carrying out its duties, the Council may not use argument
or advocacy to present the meaning of a measure, the changes it would
make, or any effect on existing law. Supra ¶ 13. And, as noted, the
Council cannot mislead by amplification, omission, or fallacy, or use
language “tinged with partisan coloring” in presenting the text of a statute
or initiative. See Tobin v. Rea, 231 Ariz. 189, 194 ¶ 13 (2013) (quoting
Fairness & Accountability in Ins. Reform v. Greene, 180 Ariz. 582, 590 (1994)).
Accordingly, in this case, the focus is on the language the Council used to

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Justice Montgomery, Concurring

present the effect the Initiative would have on § 36-2322, not on the
language quoted directly from § 36-2322. 3

¶62 For example, borrowing from the dissent’s hypothetical, infra
¶ 73, if the Analysis accurately quoted the specific language of § 36-2322(B)
but presented it as “protecting the rights of a sweet innocent baby,” the
Analysis would have impermissibly used language “tinged with partisan
coloring.” Or, from a contrasting point of view, if the Analysis presented
§ 36-2322(B) as “restricting abortion rights,” the Council would also violate
§ 19-124(C). However, if § 36-2322(B) used the phrase “sweet innocent
baby,” then accurately quoting the statute without more is insufficient to
conclude the Analysis was not impartial.

¶63 Here, the Analysis does no more and no less than accurately
set forth language in the statute without any characterization. Likewise,
the Analysis permissibly uses the terms “fetus” and “fetal viability” from
the Initiative. Although both are technical terms that § 19-124(C) counsels
to avoid whenever possible, the Analysis is merely setting forth the actual
terms used.

III

¶64 The dissent concludes that because it is hotly contested
“[w]hether an embryo or fetus is a ‘human being,’” the Analysis’s use of the
phrase “unborn human being” is “tinged with partisan coloring.” Infra
¶ 77. The dissent’s conclusion, though, illustrates the problem with this
approach to determining impartiality. And the reliance on cases decided
before Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022), is
misplaced.

¶65 Relying on the nature of an issue to determine impartiality
raises more questions than it answers. How hotly contested does an issue
have to be before simply quoting language from the relevant statute renders
the analysis “tinged with partisan coloring”? Would this require the use

3 Accordingly, the dissent’s concern that impartiality could be determined
by only looking at language quoted from a statute is misplaced. See infra
¶¶ 73–74.

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Justice Montgomery, Concurring

of experts to determine just how contested an issue is? Must we poll the
electorate? Inviting the Council, or this Court in a future case, to censor
language validly enacted by the legislature or proposed by initiative due to
the nature of a controversy opens a Pandora’s box.

¶66 In addition to the other cases cited, the dissent relies on Justice
Scalia’s musing that “[whether] the human fetus is in some critical sense
merely potentially human” is not “a legal matter; it is in fact a value
judgment.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 982 (1992)
(Scalia, J., concurring in part and dissenting in part), overruled by Dobbs, 597
U.S. 215. Infra ¶ 78. This reliance, though, is misplaced. Careful
consideration of Justice Scalia’s concurrence—and an equally careful
reading of the other cases—reflects a disagreement deeper than just
defining the point at which a human life begins. Best understood, the
disagreement concerns where along the continuum of human existence,
and to what degree, legal significance attaches. See, e.g., State v. Merrill,
450 N.W.2d 318 (Minn. 1990) (considering constitutionality of unborn child
homicide statutes). Justice Scalia’s further observation in Casey illustrates
this point.

¶67 In Casey, Justice Scalia also noted that “[s]ome societies have
considered newborn children not yet human, or the incompetent elderly no
longer so.” 505 U.S. at 982. A “value judgment” associated with the
phrase “incompetent elderly people are human beings” arises from
differences in the legal significance some societies attach to that point of
human existence. Regardless, the phrase is objectively accurate:
incompetent elderly people are human beings. “Unborn human being” is
also objectively accurate.

¶68 Aside from any philosophical, theological, or moral point of
view, there is a scientific consensus that human life—versus merely
potential human life—begins at fertilization:

[F]ertilization marks the point at which a male’s
spermatozoon (sperm) and a female’s oocyte (egg) unite to
form a genetically unique organism (zygote) [and at which] a
zygote with a human genome is a human since he or she would
then be biologically classified as a member of the Homo
sapiens species whose life has started on the developmental
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Justice Montgomery, Concurring

path that can continue through the zygotic, embryonic, fetal,
infant, child, adolescent, and adult stages of the human life
cycle.

Steven Andrew Jacobs, J.D., Ph.D., The Scientific Consensus on When a
Human’s Life Begins, 36 Issues L. & Med. 221, 224 (2021) (emphasis added)
(discussing results of a study “designed to assess biologists’ views on the
ontogenetic starting point of a human’s life” given that 80% of surveyed
Americans selected biologists as “most qualified to determine when a
human’s life begins”). Thus, the phrase “unborn human life” has an
objective accuracy independent of any value judgment.

¶69 As explained above, the Analysis uses the phrase solely in the
context of quoting existing statutory language without characterizing the
phrase in any way that renders the Analysis impermissibly partial. The
mere fact that the phrase might also be used in debates concerning the legal
rights and statuses that ought to be afforded (or not) to human
fetuses/unborn human beings does not render this use of the phrase partial.

IV

¶70 Here, the majority has fairly applied the requirements of
§ 19-124(C) to the Analysis. Anything more or less would require the
Court to exercise its own “value judgment” with respect to language
properly left for the people of Arizona, rather than the Court, to pass on.

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ARIZONA FOR ABORTION ACCESS v. MONTENEGRO, ET AL.
Chief Justice Timmer, joined by Justice Beene, Dissenting

TIMMER, C.J., joined by BEENE, J., dissenting.

¶71 Few disputes are more politically, morally, philosophically,
and emotionally divisive than whether and at what stage a pregnant
woman carries an “unborn human being.” See, e.g., Dobbs v. Jackson
Women’s Health Org., 597 U.S. 215, 223–25 (2022) (acknowledging that
“[a]bortion presents a profound moral issue on which Americans hold
sharply conflicting views” and explaining that some people “believe
fervently that a human person comes into being at conception and that
abortion ends an innocent life”); Planned Parenthood Ariz., Inc. v. Mayes, 257
Ariz. 137, 153 ¶ 63 (2024) (“The abortion issue implicates morality and
public policy concerns, and invariably inspires spirited debate and
engenders passionate disagreements among citizens.”). By using the term
“unborn human being” in its analysis of the Arizona Abortion Access Act
Initiative (the “Initiative”), the Legislative Council favored a side in that
dispute, in violation of A.R.S. § 19-124(C)’s impartiality requirement.
Consequently, I would affirm the superior court’s judgment, which
required the Council to redraft the analysis using neutral terminology.

¶72 The majority reaches a different conclusion. It reasons that
the Legislative Council “substantially complied” with § 19-124(C) because
the term “unborn human being” is used in A.R.S. § 36-2322(B), which
restricts abortion rights, and the Council’s analysis accurately describes
how that statute would be affected by the Act. See supra ¶¶ 3, 36. In my
view, we cannot conclude that the Council’s analysis is impartial simply
because “unborn human being” is used in § 36-2322(B). The Legislature is
free—as an independent branch—to choose partial or even inaccurate
statutory language without judicial oversight. But the Legislative
Council—a statutory agency—is not unconstrained in drafting an analysis
for use in the publicity pamphlet. See Fairness & Accountability in Ins.
Reform v. Greene, 180 Ariz. 582, 588–89 (1994) (stating that the Council fulfills
an administrative or ministerial role and does not act in a legislative
capacity). Section 19-124(C) requires the Council to use impartial
language, leaving advocacy to supporters and opponents of the Initiative.
It is for the courts to decide whether the Council complied with that
directive. See Greene, 180 Ariz. at 590. Because that directive is to
produce an impartial analysis, I disagree with my colleagues that
prohibiting the Council from injecting “emotion and controversy” into a
legislative analysis “intrudes upon the prerogative of the legislative branch

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Chief Justice Timmer, joined by Justice Beene, Dissenting

of government, both the legislature and the people” or that this Court “risks
improper judicial interference” by doing so. See supra ¶¶ 53, 55.

¶73 If we conclude that the Council always complies with
§ 19-124(C) when repeating language used in affected statutes, impartiality
would simply mean whatever the majority of legislators had voted to use
in statutes. To illustrate with a far-fetched example, if the legislature had
used the term “sweet, innocent baby” in § 36-2322(B), I doubt anyone
would view that term as “impartial” if used in describing an
abortion-related measure, although it would be accurate to say that the term
is used in the statute. Our job is to determine whether the analysis is
impartial as required by § 19-124(C), meaning we cannot rubberstamp
language as “impartial” merely because the legislature used it in an affected
statute.

¶74 To be fair, the majority states it is not “adopt[ing] a bright-line
rule that an analysis is impartial as a matter of law just because it recites
statutory language.” See supra ¶ 57. But with respect, because the
majority does not rest its determination that the term “unborn human
being” is impartial on anything other than its use in § 36-2322(B), it is
difficult to see how the majority is not relying on such a line here.

¶75 Curiously, the majority concludes that courts have no
business deciding whether language used in a legislative analysis is
“packed with emotional and partisan meaning,” “hotly contested,” or “too
contentious” to comply with § 19-124(C). See supra ¶¶ 46, 50. It criticizes
the Committee and this dissent for failing to suggest a “judicially
manageable standard” for determining whether language falls into such
categories. See id. Of course, if a judicially manageable standard does
not, in fact, exist, compliance with § 19-124(C) would be a nonjusticiable
political question, and we should decline to address it. See Kromko v. Ariz.
Bd. of Regents, 216 Ariz. 190, 192 ¶ 11 (2007) (stating that a controversy is a
“nonjusticiable” political question where there is “a lack of judicially
discoverable and manageable standards for resolving it” (quoting Nixon v.
United States, 506 U.S. 224, 228 (1993))). But the majority conducts a
self-described “lengthy” analysis that belies its no-standards criticism. See
supra ¶ 57. And this Court has assessed compliance with § 19-124(C)
many times. See Greene, 180 Ariz. at 590 (“Section [19-124(C)] would be
meaningless if this court had no power to review the actions of the Council

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Chief Justice Timmer, joined by Justice Beene, Dissenting

and determine whether it carried out its statutory responsibility to prepare
an impartial analysis and description of [an initiative].”).

¶76 To be clear, a judicially manageable standard exists for
assessing compliance with § 19-124(C). In Greene, this Court set out that
standard, holding that the statute “requires the legislative council to
produce a neutral explanation of initiative proposals, avoiding argument or
advocacy, and describing the meaning of the measure, the changes it makes,
and its effect if adopted.” Id. at 591. Later decisions have applied and
augmented this holding. See Tobin v. Rea, 231 Ariz. 189, 194 ¶ 13 (2013)
(stating that language “must be free from any misleading tendency,
whether of amplification, of omission, or of fallacy, and it must not be
tinged with partisan coloring” (quoting Greene, 180 Ariz. at 590)); Citizens
for Growth Mgmt. v. Groscost, 199 Ariz. 71, 72 ¶ 4, 73 ¶ 6 (2000) (“CGM”)
(same and adding that the use of “rhetorical strategy” in phrasing the
analysis “is not impartial”); Ariz. Legis. Council v. Howe, 192 Ariz. 378, 383
¶ 16 (1998) (“Put another way, the language must not mislead, be ‘tinged
with partisan coloring,’ or argue for one side or the other.” (quoting Greene,
180 Ariz. at 590)).

¶77 Turning to the legislative analysis here, I conclude that the
term “unborn human being” is “tinged with partisan coloring” when used
in describing the Initiative’s impact. See Howe, 192 Ariz. at 383 ¶ 16
(quoting Greene, 180 Ariz. at 590). Whether an embryo or fetus is a
“human being” with attendant self-awareness, emotions, and a soul is hotly
contested and ultimately turns on individual beliefs. See, e.g., State v.
Merrill, 450 N.W.2d 318, 324 (Minn. 1990) (“People are free to differ or
abstain on the profound philosophical and moral questions of whether an
embryo is a human being, or on whether or at what stage the embryo or
fetus is ensouled or acquires ‘personhood.’”); Ark. Women’s Pol. Caucus v.
Riviere, 677 S.W.2d 846, 849 (Ark. 1984) (“[T]here are three schools of
thought on the issue of when life begins; at conception, upon live birth, or
at the point upon which the fetus becomes viable.”); Margaret S. v. Treen, 597 F. Supp. 636, 661 (E.D. La. 1984) (finding that the evidence “established
that [the terms ‘fetus’ or ‘conceptus’] are medically accepted terms, unlike
the term ‘unborn child,’ which could . . . imply[] that [the woman] is taking
the life of a person”). The majority implies that this debate ended with
Dobbs and perhaps for that reason does not directly address whether
“unborn human being” is a partial or impartial term. See supra ¶¶ 39–43

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Chief Justice Timmer, joined by Justice Beene, Dissenting

(dismissing the impact of like statements in two cases because they relied
on Roe v. Wade, 410 U.S. 113 (1973), which was overruled by Dobbs). The
debate about when a “human being” comes into existence, however, did
not end with Dobbs and rages today. See State v. Prince, 226 Ariz. 516, 541
¶ 104 (2011) (stating the Court will take judicial notice of facts that are “so
notoriously true as not to be subject to reasonable dispute”).

¶78 As Justice Scalia once put it, “[whether] the human fetus is in
some critical sense merely potentially human” is not “a legal matter; it is in
fact a value judgment.” See Planned Parenthood of Se. Pa. v. Casey, 505 U.S.
833, 982 (1992) (Scalia, J., concurring in part and dissenting in part). In
starting the legislative analysis by using the term “unborn human being”
when paraphrasing the statute that currently prohibits abortions after
fifteen weeks’ gestation, the Council promoted the value judgment that a
fetus is a “human being.” For that reason, I cannot find that the legislative
analysis is impartial.

¶79 Notably, during the Legislative Council’s hearing to adopt the
analysis, Speaker Toma acknowledged that “unborn human being” and
“fetus” are both “charged [terms] depending on which side you’re on” but
concluded they could both be used to balance against each other. We have
rejected this position before. Section 19-124(C) requires the Legislative
Council to use neutral language, not select non-neutral terminology to
balance opposing viewpoints. See CGM, 199 Ariz. at 73 ¶ 11 (rejecting “a
whole-is-greater-than-the-sum-of-its-parts theory,” which would permit
“finding the entire analysis impartial even though certain sentences or
paragraphs are not”); see also Healthy Ariz. Initiative PAC v. Groscost, 199
Ariz. 75, 78 ¶ 9 n.3 (2000) (addressing the similar impartiality requirement
for describing the fiscal impact of ballot measures and rejecting a
framework where “one partisan summary could presumably be
neutralized by the other, similar to offsetting penalties in an athletic
contest”). Such terminology should have been reserved to the “for” and
“against” arguments separately published in the publicity pamphlet. See
§ 19-124(D). Indeed, among the many arguments ultimately published,
only the “against” arguments used terms like “human being,” “unborn
child,” “unborn baby,” and “unborn children.” See Arizona 2024 General
Election Publicity Pamphlet, November 4, 2024, at pp. 161–222.

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Chief Justice Timmer, joined by Justice Beene, Dissenting

¶80 The majority acknowledges the persuasive impact of using
the term “unborn human being.” See supra ¶ 37 (“Certain voters may find
the existing statutory law’s reference to ‘unborn human being’ and the
Initiative’s reference to ‘fetus’ and ‘fetal’ important enough to tip the scale
in favor of voting for or against the Initiative.”). Regardless, it views the
Council’s word choice as merely teeing up for voters a terminology
question the Court should not take sides on: “It is up to the informed voters
of Arizona—not this Court in its impartiality analysis—to decide which
terminology is preferred in Arizona law.” See supra ¶ 42. But word
choice in Arizona law was not the issue in the Initiative. Indisputably, the
Initiative did not give voters the option of inserting the term “unborn
human being” into Arizona law. The issue posed to voters by the
Initiative was whether to enshrine in the Arizona Constitution that “[e]very
individual has a fundamental right to abortion,” and that the state is
prohibited from “enact[ing], adopt[ing] or enforc[ing]” laws that (1) restrict
that right “before fetal viability,” with a limited exception; (2) restrict that
right “after fetal viability,” if “necessary to protect the life or physical or
mental health of the pregnant individual”; or (3) penalize people for
assisting pregnant individuals in exercising this right. Our role was to
decide whether the Council’s analysis of that Initiative was impartial.
§ 19-124(C).

¶81 In Tobin, this Court held that including the phrase “tax
increase” in the first paragraph of an analysis could “persuade the reader
at the very outset” that the initiative runs counter to his or her financial
interests. 231 Ariz. at 195 ¶ 18 (quoting CGM, 199 Ariz. at 72 ¶ 6). Here,
it is just as likely that the phrase “unborn human being” could persuade the
reader from the get-go that the Initiative is contrary to his or her moral
interests. See Riviere, 677 S.W.2d at 848–49 (disallowing use of “The
Unborn Child Amendment” as “a clear-cut example of the partisan coloring
of ballots” because “[v]ery few would vote against a child, born or unborn,
even though they are for a woman’s right to have an abortion”). Using the
term, particularly to start the analysis, put a thumb on the scale favoring
defeat of the Initiative and should not have been permitted under
§ 19-124(C).

¶82 The majority criticizes the superior court and this dissent for
failing to both explore what “neutral terminology” the Council should have
used and explain how the term “fetus” is not similarly “tinged with

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Chief Justice Timmer, joined by Justice Beene, Dissenting

partisan coloring.” See supra ¶ 49. With respect, the majority
misapprehends the courts’ role in assessing compliance with § 19-124(C).
It is not our role to write the legislative analysis. Our only function is to
decide whether the drafted analysis is impartial. See § 19-124(C). If we
find that the Legislative Council did not comply with the statute, we should
explain why and allow the Council to redraft the analysis in an impartial
manner. In my view, courts should resist micromanaging the Council’s
job by suggesting compliant language; that would constitute judicial
interference with the Council’s function. That is particularly so here as no
party has suggested that the terms “unborn human being” and “fetus” or
“fetal” could not have been avoided in drafting an accurate and impartial
analysis.

¶83 As the superior court judge concluded, “[t]he term ‘unborn
human being’ is packed with emotional and partisan meaning, both for
those who oppose abortion and for those who endorse a woman’s right to
choose whether to have an abortion.” Instead of teeing up a neutral
analysis that left voters to decide for themselves the difficult moral,
philosophical, and theological questions raised by the Initiative, the
Legislative Council used adversarial language that favored one side in the
abortion debate. That violated § 19-124(C). With great respect for my
colleagues, I dissent.

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