*1 ARKANSAS WOMEN’S POLITICAL CAUCUS RIVIERE, State, Honorable Paul Secretary Arkansas; State of THE STATE BOARD OF ELECTION Arkansas; of COMMISSIONERS State THE COUNTY BOARDS OF ELECTION COMMISSIONERS OF THE STATE OF ARKANSAS
The UNBORN CHILD
COMMITTEE,
AMENDMENT
Intervenor
84-215
Supreme Opinion delivered October *2 Firm, Mays by: & Crutcher Law Richard L. Mays Tara Levy, petitioner. *3 Clark, Gen., Nebben,
Steve Att’y by: Curtis Att’y Dep. Gen., for respondent. Holmes, S. Robert and Leon for interven- Shafer
or/respondent. Robert H. Dudley, In this action the original Justice. Caucus, petitioner, Arkansas Women’s Political asks this court to declare invalid proposed Constitutional 65, Amendment No. “The Unborn Child Amendment.’’ We hold that the popular name proposed partisan constitutes a of the ballot and coloring declare the measure ineligible consideration at the November 1984, election. cases,
In two historic Supreme Court of United States decided that the Constitution a protects woman’s right to decide whether to terminate her pregnancy and that a state may burden the exercise a unduly of woman’s fundamental right to obtain an abortion. Roe 410 (1973) Bolton, U.S. 113 and Doe 410 U.S. These (1973). 179 two cases did 1973 not resolve all of the issues complex involved the abortion In in a controversy. trilogy cases, the Court ruled that neither the Constitution nor federal statutes required public of elective abortions funding for poverty Doe, stricken women. Beal v. U.S. 438 (1977); 432 Roe, Maher v. Doe, U.S. 464 and Poelker v. (1977); U.S. 519 (1977). The did not address the trilogy validly prohibit could laws state of whether question abortions. necessary medically funding governmental now before us is a continuation action original side, the at the state level. On one controversy abortion Committee, intervenor, Amendment The Unborn Child to a adоpt policy to amend the desires Arkansas Constitution abortion, but from viability, from limiting would also the use of prohibit intervenor conception. abortion, it was indirectly, unless directly funds for public side, life. the other for the woman’s On purpose saving Caucus, the Arkansas Women’s Political petitioners, to silence of the Constitution desires maintain the present on the That silence allows a statute Arkansas subject. make the may that a woman and her provide physician Ann. 41- under certain See Ark. Stat. choice circumstances. § chooses, state, if it treat abortion as an It allows 2554. type programs. medical under Medicaid procedure accepted Amendment of Arkansas all gives Constitution citizens of state the to initiate constitutional right intervenor, amendments. The Child Amendment Unborn Committee, right. They seeks to have drafted a exercise and a proposed proposed popular submitted the They proposed title. have *4 Attorney name and title to the for ballot General popular See Ark. Ann. and (Repl. Supp. Stat. 1976 approval. 2-208 § that popular The has ruled 1983). Attorney General and and them for approved title are not has misleading initiative They petitions circulation. have circulated obtained they of State has determined that had Secretary sufficient in order to have the initiated signatures 1984, 6, amendment on the ballot. November title and that the ballot contends petitioner The that to thе extent misleading partial name are popular review for standard of deceived. Our be will the electorate to see this court duty is of It is clear. actions these intelligible, are (1) names and popular titles that ballot 558, 339 Hall, Ark. honest, v. 232 Leigh (3) impartial. (2) 104 (1960). S.W.2d
467 for name are not as requirements for is stringent as those the ballot title. It a simply legislative device which is voters to useful for discuss a measure before Hall, an election. v. Ark. 233 72 Pafford However, (1950). names which contain popular ballot catch phrases tend mislead or slogans give partisan a rejected. Moore colorings to the merit of will be proposal Hall, (1958). S.W.2d 207 name, “The Unborn Child Amendment” is mis- leading.
An unborn child cannot exist life before but begins, law, medicine, in those trained disciplines philosophy and theology are unable to arrive at a consensus of when life A Roe begins. in synopsis thought fоund at U.S. 160-61.
. . . There has always been strong for the view support that life does not live begin until birth. was This belief the Stoics. It appears predominant, unanimous, though attitude the Jewish It faith. bemay taken to represent also the position of large segment the Protestant insofar as community, ascertained; that can be organized that have groups taken a formal on position the abortion issue have generally regarded abortion as a matter conscience of the individual and her As we have family. noted, the common law found greater significance quickening. Physiciаns and their scientific colleagues have regarded that event with less interest and have tended to focus either upon live conception, upon birth, or the interim upon point at which the fetus “viable,” is, becomes potentially able to live womb, outside the mother’s albeit with artificial aid. Viability at usually placed about seven months (28 earlier, but weeks) may occur even at weeks. The animation,” Aristotelian theory “mediate that held sway throughout Middle and the Renaissance Ages *5 in Europe, continued to be official Roman Catholic until Dogma 19th century, despitе opposition this “ensoulmén t” in from those the Church theory who would recognize the existence of life from the now, course, the of The latter is
moment of conception. brief As one belief of the Catholic Church. official discloses, by many a held strongly this is view amicus well, by many physicians. аs and non-Catholics view definition of this precise for problems Substantial however, data that new by embryological are posed, a over conception "process” to indicate that purport event, time, new medical by rather than an extraction, the "Morn- as menstrual such techniques of artificial embryos, ing-after” pill, implantations insemination, and even artificial wombs. three it can seen that there are
From this synopsis of life at begins; of on the issue when thought schools birth, which live or at the upon upon point conception, committee follows that viable. The intervenor fetus becomes believes life at thought begins school of which child,” standing The ballot name “unborn conception. alone, follow an tend to mislead those voters who would and do think of fetuses alternate school thought children. voters as unborn Those gestational ages certain a one-second old well make a distinction between could which a fetus of months eight gestation conceptus More acknowledge. does not significantly, name two amendment would do the enactment the proposed prohibit it immediately would еqually far-reaching: things, abortion, a female including funds for use public incest, life of the mother unless by impregnated rape two, empower in it would General were danger; circumstances any tó abortion under Assembly prohibit under the Constitution United extent permitted Yet, no reference whatsоever name makes States. the popular Instead, the ballot name charged subject. to this emotionally child,” words "unborn catch only inviting contains the voters impression proponents which gives few would vote them to have. Very the amendment want child, unborn, for even are a though thеy born or against paying to have an abortion or for state woman’s right the partisan is a example it. The clear-cut condemned uniformly of ballots which we have coloring be fair and a ballot name must our decisions holding impartial.
areWe aware this overshadowing particular are the of initiative and proposed rights voting. We are all this keenly aware that citizens of state are being denied those even after the rights by opinion, sponsors However, have been process. through long expensive kind, in a case of this the Constitution plainly places on this responsibility court see that the result of an election represents the objective judgment of the voters. The popular ballot title a biased view of the merits conveys of the It is our proposal. duty to declare it plainly misleading.- granted. Petition
Hubbell, Hickman, C.J., dissent. J., Purtle, J., participating Hubbell,
Webb Chief Justice, dissenting. issue before us is whether Amendment 65’s title and name are honest, (1) intelligible, (2) im- (3) Hall, Leigh partial. 104 (1960). The petitioner does not raise the constitutionality so that issue cannot be considered.
The ballot title anis almost verbatim reproduction the amendment and is not misleading.
“Unborn Child Amendment” need not have same detailed information as is required for the ballot title. Although many people oppose use the term “unborn child,” since Roe U.S. the term (1973), understood and widely used. Several of our surrounding states use “unborn child” in their abortion statutes and define unborn child as the from entity conception to birth. 188.015; Mo. Rev. Stat. Okla. Stat. The popular § 6351-730. name, although emotion, used to certainly provoke intelligible.
We should always heistate to remove any initiated act from the fracture, ballot. Our function is to set unify, limits and define boundaries within which the political process can operate. We cannot ordain specific solutions vexatious, divisive, and perhaps insoluble problems the bounds beyond the people stray Unless
public policy. hurl we should not constitutional interpretation, reasonable thunderbolts. our constitutional *7 the Because of Hickman, dissenting. Justice, Darrell this the subject surrounding emotionalism nationwide for at this time: case, only issue us easy is to lose the sight it or dishonest. misleading, deceptive the ballot title is whether on a national debate in there is country this Presently the two major It hаs polarized of abortion. the question president. and candidates for Various their parties political and on the issue gauntlet have thrown down the groups is in action. It in this them are this some of represented us comes to to change that atmosphere proposal in the machinery provided through Arkansas Constitution 7, directly remaining vestige power Amendment the last with this can interfere retained court by people. Only or do so in cases of deceptive and we should right, only on the ballot. misleading statements is the legal sufficiency sole concern at this time Our found, has that the As the I majority agree the ballot title. and is no sugars phrases title itself no pulls punches, amendment. statement of the proposed an honest Amendment,” however, name, “The Unborn Child colored.” I dissent is to be by majority “politically found is since that deceptive in no is nаme way because is The popular what the amendment about. precisely voter, be cannot, if it any purpose serve useful matter of statement the subject more than a children that is about and this not contain have not been born. It not and should yet does of a law. every provision if and child” is a catch phrase partisan “Unborn social ideological, this between join fray one is persuaded Hall, and In legal opposites. Pafford “A a ballot title called we reviewed (1950), if phrase Act.” Prohibition a catch Statewide Prohibition is not an offensive is. Thе word any “prohibition” word itself, found to in and its use was not word persuasive if would excite the hearts Yet word any quickly misleading. the days advocates opponents during temperance it that word. had no difficulty was We prohibition, title, it did act was what the explain approving about. “unborn
I will discuss all uses of phrase child” in books. I occur dictionaries law routinely that it is an that has use ordinary note been merely phrase Railroad Union Co. 141 U.S. years. Botsford, Pacific Webster’s New (1891); Collegiate (1980); Dictionary Index, 1B, 577; Arkansas Digest, p. Word Vol. Descriptive 2nd, West’s Modern Federal Practice Descriptive Digest, Index, Word Vol. p. 476.
Most of centers petitioner’s argument phrase on *8 and the fact that the attempts amendment to alter or change Wade, what was said Roe v. U.S. It 410 113 is (1973). the argued that “unborn phrase child” is meaningless fetus, because a the first three months of during pregnancy, therefore, is “person;” unborn child is not accurate true, either or legally scientifically. Assuming that to be how many know Should people that? the amendment be called the it conceptus because defines an unborn child as from being That would conception? be nonsense. Whatever the United States Court held in Supreme Roe v. in terms supra, what a defining person is consti- is the tutionally, irrelevant to before question us at this time. In the my judgment, title is what actually not is to objectionable the it petitioner; is the whole amendment that it finds repulsive. I appreciate respect the peti- tioner’s and moral legal objeсtions to amend- ment. All or of the part but may illegal, that is not the issue before us. We cannot into the inject ourselves and, differences of the ideological parties so by doing, interfere with constitutional to right vote people on the amendment. Amendment is the means only by 7 want, which the can choose the people they law rather than be governed by a law the governor may or want. legislature Our role to only is see that the meets the minimum proposal requirement is sufficiency. duty Our clear. must We 472 to in order to reserve Amendment construe 7
liberally right disapprove proposed approve the people legislation. Riviere, Becker v. Ark. 555 S.W.2d 385, 540 Ark. Jernigan, Mason (1980); until we must wait legal battle ideological The (1976). of whether the amendment with the question are presented States contrary to United and not legal itself Constitution. However, the doеs not law is an emotional issue.
This deep on issues that involve voting from prohibit people diametrically rise to always give These issues feelings. opposed viewpoints. last we
I
mention that
measure
cannot
fail
changed
ballot
Amendment 60 which
allowed on the
was
usuary provisiоn of
Riviere,
the constitution. Becker v.
was to allow
The amendment
(1982).
I no and would deception find