‘Unborn’ and Other Word Wars Launch Abortion Ballot Campaigns

Language is getting extra scrutiny in states with abortion on the ballot, as courts and election officials decide which wording—such as fetus, embryo or “unborn human being”—belongs in official voter information.

“There’s fights over that language, and I do think it matters,” said Laura Portuondo, a University of Houston Law Center professor who focuses on constitutional law and reproductive rights. People on both sides are going to try to push toward their preferred interpretation, she said in an interview.

Measures seeking to enshrine abortion rights into state constitutions are certified for November ballots in Colorado, Florida, Maryland, Nevada, New York, and South Dakota. Petition signature verification is underway in Arizona, Missouri, Montana, and Nebraska, and an effort in Arkansas is under state Supreme Court review.

It’s the next wave of ballot-box backlash to the 2022 US Supreme Court decision overturning the constitutional right to abortion, Dobbs v. Jackson Women’s Health Organization. Since then, voters in seven states—California, Kansas, Kentucky, Michigan, Montana, Ohio and Vermont—have sided with abortion rights supporters on ballot measures.

Heading toward this year’s election, before getting to the ballot-printing stage, states have to settle multiple disputes about adding, subtracting, or changing words about abortion proposals:

• The Republican-dominated Arizona Legislative Council has appealed a judge’s order to remove “unborn human being” from the ballot question summary in an official voter guide.
• In Florida, an economic impact analysis is being challenged because it addresses paying lawyers, Medicaid-covered abortions, and the loss of state revenue if the right to abortion leads to fewer future taxpayers entering the workforce.
• In New York, a ballot summary might skip the word abortion and instead say “reproductive health care.”

In Arizona, the authors of the proposed voter-guide language said it should stand because it’s modeled on state law, which bans abortion after 15 weeks’ gestation. Arizona for Abortion Access argues the term “fetus” should be used, as it’s more consistent with medical terminology.

The American College of Obstetricians and Gynecologists says in guidance that medical professionals should use “embryo” for pregnancies through 10 weeks and “fetus” afterward.

The legislative council’s position is backed by Susan B. Anthony Pro-Life America. “Babies in the womb are unborn human beings,” Kelsey Pritchard, the group’s director of state public affairs, said in an email.

Sarah Standiford, national campaigns director for the Planned Parenthood Action Fund, said the Arizona ballot summary—which a Superior Court judge ordered changed—was one of the “startling instances of state officials abusing their power” to “promote disinformation in official ballot statements.”

Planned Parenthood has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

Florida Fallout

Florida’s proposal, which has been confirmed for the ballot, seeks to secure access to abortion before fetal viability. The measure states that “no law shall prohibit, penalize, delay, or restrict abortion before viability or when necessary to protect the patient’s health, as determined by the patient’s healthcare provider.”

The campaign behind the ballot petition has asked the state Supreme Court to reject the accompanying fiscal impact statement, which would tell the electorate that a “yes” vote could hurt the state’s bottom line with Medicaid-financed abortions, an unknowable number of fewer taxpayers, and litigation.

Michelle Morton, a staff attorney with the ACLU of Florida, said in an emailed statement that “the integrity of our democratic process depends on providing voters with clear, accurate, and unbiased information,” and the state’s impact statement threatens to “compromise the voter’s ability to make informed decisions.”

Pritchard argued the statement will “provide some clarity on the actual outcomes the measure will cause, including taxpayers footing the bill for abortions.”

Mary Ziegler, a professor at the University of California, Davis School of Law who focuses on reproductive health care, said voters in other states with abortion ballot questions “have been pretty good at essentially differentiating ideology and fact,” though the stakes are higher in Florida, since 60% approval is required rather than a simple majority.

That state bans abortion after six weeks of pregnancy, with limited exceptions like a fatal fetal diagnosis or saving the life of the pregnant person.

New York state’s Board of Elections, which is charged with writing explanations of proposed laws appearing on the ballot, decided against using the word “abortion” in materials given to voters, despite concerns from one board member that Democrats could challenge the description in court.

The proposed amendment would expand the constitution’s anti-discrimination provisions by adding “sex, including sexual orientation, gender identity, gender expression, pregnancy, pregnancy outcomes, and reproductive health care and autonomy.”

Common Cause NY, a good government group, is looking into “possible legal recourse” after criticizing the board’s wording for violating the “spirit and intent” of a state law requiring referenda language be plain spoken, Susan Lerner, the group’s executive director, said in a July 29 statement.

New Yorkers for Equal Rights Campaign Director Sasha Ahuja said in an emailed statement that the measure “was brought about to ensure our fundamental freedoms, including abortion rights.”

“That should be clearly reflected and spelled out in the ballot language,” she said.

Nebraska x Two

In Nebraska, wording could matter double, since two petitions have been submitted for abortion ballot proposals with opposite goals. If both make it onto the ballot, the version with the most votes would be added to the state’s constitution.

The one submitted by Protect Our Rights would allow abortion until viability, and “when needed to protect the life or health of the pregnant patient.”

The other petition is from the group Protect Women and Children. It seeks to amend the state constitution to protect “unborn children” from abortion in the second and third trimesters, “except when a woman seeks an abortion necessitated by a medical emergency or when the pregnancy results from sexual assault or incest.”

Sandy Danek, executive director of Nebraska Right to Life, said enactment would provide “an ability to go back to the Nebraska Legislature when they deem it’s possible to pass further protections.” The state currently bans abortion after 12 weeks of pregnancy.

Arkansas

Backers of an abortion rights ballot proposal in Arkansas may not get to argue about wording. Arkansans for Limited Government and state officials are at odds over unrelated issues being adjudicated by the state Supreme Court.

As for the states where explanatory-document word choice is still being argued, Ziegler noted that one of last year’s abortion ballot questions included “unborn child” in the ballot summary.

Ohio still said yes to the abortion-rights amendment.

“Voters are perfectly capable of deciding for themselves when they think life begins,” Ziegler said.