Abortion rights ballot measure backers win in court, say Supreme Court justice must recuse
A Maricopa County judge on Monday rejected an effort to keep an abortion rights amendment off Arizonans' November ballot on grounds that it was confusing or misleading to voters.
The ruling was a win for Arizona for Abortion Access, the ballot measure campaign organized by a coalition of groups, and comes three months to the day before the November election.
The coming weeks are likely to see additional back-and-forth in the courts related to the high-profile measure, which Democrats hope will mobilize their voters and push their candidates to victories, too.
As of Monday, the legal saga also included a new request: That an Arizona Supreme Court justice who stepped aside in a case that ultimately reinstated a pre-statehood abortion ban should also recuse himself from a separate case involving the ballot measure. Here's where legal matters involving the Arizona Abortion Access Act stand.
Judge keeps measure on ballot
Late last month, Arizona Right to Life filed a lawsuit aiming to keep the amendment off the November ballot. The group contended the 200-word summary that was available to people who signed a petition to help the amendment qualify was misleading, a claim Arizona for Abortion Access denied.
Putting a constitutional amendment on the ballot this year required nearly 384,000 voters to sign on in support. Arizona for Abortion Access gathered over 823,000 signatures on its petition sheets, each of which was required to have the 200-word summary.
Maricopa County Superior Court Judge Melissa Iyer Julian ruled Monday that the description provided to voters met standards set in Arizona law and prior court rulings.
"Here, the description accurately and fully communicated the initiative’s key provisions," Julian wrote, later adding: "This Court will not order its removal from the general statewide election ballot."
Lawyers for Arizona for Abortion Access and Arizona Right to Life argued over the language of the summary in an about 40-minute hearing on Friday.
Arizona Right to Life attorney Jennifer Wright argued the summary was misleading because it did not clearly explain to voters certain provisions, like that measure allows abortions after viability if necessary in certain circumstances as determined in the "good faith judgment" of a "treating" health care provider. The group argued that language would lead to "unrestricted and unregulated" abortion, including through legal challenges that could undo other abortion laws in the state.
Austin Yost, an attorney working for the ballot measure committee, said that argument was better suited for the political sphere, not the courtroom. The 200-word description did not need to include speculative impacts such as court challenges over existing law, he said.
Julian denied a request by Arizona for Abortion Access to order Arizona Right to Life to cover its attorneys fees, but did award the ballot measure group other costs related to the lawsuit. That amount has not yet been determined.
Arizona for Abortion Access said Monday it was not "surprised by this win because our opposition’s arguments had no basis in Arizona law and were nothing more than false political talking points." Arizona Right to Life said it had received "countless" calls from people who were confused about the vague language.
"Unfortunately the judge did not agree and we will continue to educate the court of public opinion about what this initiative truly does," a statement from Arizona Right to Life reads. A spokesperson did not respond to a question about whether the group would appeal.
The Arizona Abortion Access Act would create a fundamental right to an abortion in the Arizona Constitution if it is approved by a majority of voters in November.
Abortion rights advocates seek removal of court justice
Arizona for Abortion Access also Monday filed a motion asking Justice William "Bill" Montgomery to recuse himself from a separate case that challenges a description of the ballot measure that will be mailed to voters before November.
Arizona for Abortion Access previously argued that the description as approved by a Republican-majority legislative committee did not meet the legal requirement to be impartial because it used the term "unborn human being." The group won at the Maricopa County Superior Court. House Speaker Ben Toma and Senate President Warren Petersen, both Republicans who serve on the committee, appealed.
Arizona for Abortion Access argued that Montgomery's reasons for stepping aside in an abortion case earlier this year were "cryptic," and he has made past statements in opposition to abortion that show they cannot get fair consideration.
"Like anyone going before any Arizona court, we are entitled to a fair and impartial hearing," a statement from Arizona for Abortion Access said. "The only way to ensure that can happen is for Justice Montgomery to recuse himself."
A court spokesperson declined to comment on the request on Montgomery's behalf.
"Justices cannot discuss matters pending before the Court or those that are likely to come before the Court," Supreme Court spokesperson Alberto Rodriguez said. "Decisions concerning recusal in any given case will be communicated per the Court’s usual process."
Already one justice on Arizona's seven-member Supreme Court has stepped aside when it comes to considering the description.
Justice Clint Bolick, who faces a retention election this year, has recused himself. Bolick's wife, state Sen. Shawnna Bolick, R-Phoenix, is a member of the legislative committee that approved the description.
A statement provided by Justice Clint Bolick said the justice has worked with ethics counsel to determine guidelines to recuse himself when his wife is a party in a case and "in any challenge to the constitutionality of a law in which he is aware that his wife was a prime sponsor or prominently identified as a supporter or opponent."
The Arizona Supreme Court will not hear oral arguments on the language of the description but set a schedule for them to be filed on paper this week. Legal matters are being considered under an expedited timeline, given looming election deadlines.
Montgomery's previous recusal
Montgomery sat out when the court earlier this year ruled that an abortion ban dating to 1864 could be enforced in Arizona. He initially denied a request from Planned Parenthood to step aside, but later reversed course.
He said at the time, "Additional information related to the parties and respective counsel has come to my attention warranting that I recuse myself from any further deliberations in this matter."
Montgomery’s impartiality was questioned then by Planned Parenthood, which is one of the ballot measure’s major funders. Montgomery attended a protest outside Planned Parenthood's Arizona headquarters in 2015 and said that, among other things, "Planned Parenthood kills children and sells their body parts.”
“There’s no question that Justice Montgomery used words like the challenged publicity pamphlet summary and the anti-abortion framing of Arizona-based anti-abortion groups,” the recusal motion filed by Arizona for Abortion Access says. That similarity is “more than enough” to raise doubt about Montgomery being impartial, the group argues.
Arizona's more than century-old abortion ban will not go into effect, even despite the Supreme Court's ruling.
The court's decision prompted wide backlash, and ultimately, the Arizona Legislature voted to repeal the ban. Democratic Gov. Katie Hobbs signed the repeal in early May, but laws don't go into effect immediately. The repeal still would allow enforcement later this year, if it weren't for legal maneuvering from Arizona Attorney General Kris Mayes, also a Democrat.
Mayes' office successfully asked the court to stay enforcement in the interim while she considers an appeal to the U.S. Supreme Court. State law currently prohibits abortion after 15 weeks of pregnancy except in cases of a medical emergency.
Reach reporter Stacey Barchenger at [email protected] or 480-416-5669.
This article originally appeared on Arizona Republic: Abortion ballot measure backers: Justice Bill Montgomery must recuse
