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Arizona abortion measure falls short of signatures to get on ballot

Arizonans will not get a chance to constitutionally protect abortion rights, at least not this year.

Shasta McManus, treasurer of Arizonans for Reproductive Freedom, told Capitol Media Services her organization will not be turning in the petitions for a ballot measure it has been gathering since May.  She said they were able to get only about 176,000 ahead of Thursday's deadline.

Backers needed at least 356,467 valid signatures to put the issue on the November ballot. And it would have taken about 450,000 names to ensure a sufficient margin to account for bad or otherwise disqualified signatures.

McManus said the organization will regroup and start putting together plans to seek a 2024 vote on the issue. She said that starting the signature gathering process in November — the earliest for that election — should provide far more time to reach the goal.

And what that means is that, absent court intervention, Arizona will be able to start enforcing its territorial-era ban on abortion unless and until voters decide otherwise in 2024. And that law contains no exceptions for rape or incest.

Getting the measure on the 2022 ballot always was a long shot.

The petition drive did not start until May 17. That followed the unusual leak of the draft opinion by U.S. Supreme Court Justice Samuel Alito showing that the high court was prepared not only to uphold a Mississippi law banning abortions after 15 weeks but to overturn its historic 1973 decision in Roe v. Wade which said women have a constitutional right to terminate a pregnancy.

With the Thursday deadline, that would have meant having to gather more than 8,800 signatures each day, something being done with an all-volunteer effort. But McManus said the group had to try to put the issue on this year's ballot.

"Women in Arizona, they don't have two years to wait," she said.

The measure would have put a "right to reproductive freedom in the Arizona Constitution. That would cover all matters related to pregnancy.

More to the point, the initiative would have barred state and local governments from interfering with that right. And it would have covered issues ranging from contraception to elective termination of a pre-viable fetus.

It also would have allowed abortions at any stage of pregnancy "if the health or safety of the individual is at risk."

Less clear is the status of abortion rights in Arizona right now.

The Arizona Court of Appeals issued an injunction in 1973 blocking the state and the Pima County Attorney's Office from enforcing the law that was then on the books. That came shortly after the U.S. Supreme Court ruling.

Attorney General Mark Brnovich has said his office plans to ask Pima County Superior Court to dissolve that injunction, with a filing expected this coming week.

And there's something else: That injunction allowing abortion in Arizona may apply only to Pima County, as the lawsuit involved what at the time was Planned Parenthood of Tucson.

And then there's the complicating factor that state lawmakers approved — and Gov. Doug Ducey signed — legislation earlier this year that prohibits abortion after 15 weeks. That was modeled after the Mississippi law in case the Supreme Court simply upheld that statute but left Roe undisturbed.

That law takes effect at the end of September.

Ducey contends that new law will supersede the territorial statute. But Sen. Nancy Barto (R-Phoenix) who crafted that legislation, said it was specifically designed to fall if the Supreme Court overturned Roe.

The governor said he expects the issue to have to be hashed out in court.

Separately, a group of doctors is going to federal court on Friday to ask a judge to decide the legality and applicability of a provision of 2021 legislation that says Arizona law must be interpreted to acknowledge that an unborn child is entitled to the same rights, privileges and immunities available to other citizens and resident of the state.

The Center for Reproductive Rights challenged that language last year. But Judge Douglas Rayes said he saw no reason to rule on that given that Roe v. Wade protected the right to abortion.

Now, the attorneys argue, that language could be used to prosecute doctors even in cases where the pre-1973 law permits abortion such as to save the life of the mother.

The failure of the initiative to qualify comes after Planned Parenthood Arizona declined to support the initiative or work to get the signatures, even though McManus herself was a member of the board of the nonprofit arm of the organization when the petition drive started.

Chris Love, the immediate past president of the Planned Parenthood Action Fund, the lobbying arm of the organization, told Capitol Media Services that it shares the same goal as the initiative supporters, which is to keep abortion legal in Arizona.

"However, we have different ideas about strategy," she said. And that starts with what Love said was the rush to put the issue on the year's ballot.

"With the large signature threshold and lack of time to plan, get data, draft perfect language, and fundraise, it just wasn't an effort we could support for the 2022 ballot," Love said.

"Additionally, we asked for inclusion of reproductive rights and justice organizations in crafting the language and strategy as we are the experts," she said, something that initiative organizers refused to do, "which is their right." But Love said had there been a broader coalition up front — before the initiative drive was launched — some potential problems with the wording of the measure could have been worked out.

McManus, for her part, is not blaming Planned Parenthood even though she said she was forced to leave the board of directors after the organization said it did not want anyone associated with it involved with the initiative. In fact, she said she considers it a success that there were this many signatures gathered in such a short period of time by an all-volunteer organization.

"Where I do put the blame is on the way that the state has made it nearly impossible for ballot measures to get on the ballot," McManus said.

Some of that is based in the Arizona Constitution which says that proposed amendments need to get the signatures of the equivalent of 15% of the people who cast ballots in the last gubernatorial election. That's where the 356,467 figure comes from.

But the Republican-controlled legislature has enacted various other restrictions on ballot circulators and other technical requirement.

They even have amended the statutes to say that petition drives have to be in "strict compliance" with every election law. That overruled court decisions which said that citizen initiatives needed only "substantial compliance."

Andrew Feldman, a spokesman for Planned Parenthood, said the organization's focus nos is "to elect pro-abortion champions up and down the ballot in the midterms and build a broad coalition to address this issue directly in 2024."