Planned Parenthood wants Supreme Court judge Bill Montgomery off abortion case. Here's why
Planned Parenthood Arizona wants state Supreme Court Justice Bill Montgomery, who once referred to abortion as genocide, to remove himself from a case that could revive enforcement of a near-total abortion ban.
Citing what Planned Parenthood Arizona deemed as biased and prejudicial statements Montgomery made about abortion and Planned Parenthood in the past, the organization on Thursday filed a motion for Montgomery to recuse himself from the case, which is set for oral arguments Dec. 12.
"Planned Parenthood Arizona believes that all litigants in Arizona are entitled to have their cases heard by judges who are not biased against them, and that includes Planned Parenthood Arizona," said Kelley Dupps, senior director of public policy and government relations at Planned Parenthood Arizona. "After carefully evaluating the recent reporting showing Justice Montgomery’s bias against Planned Parenthood Arizona as an organization, we believe recusal is necessary in our case.”
The "recent reporting" was in an Oct. 19 story jointly published by The 19th and The Arizona Mirror that questioned Montgomery's ability to serve as an impartial judge in the abortion case. The report found the past statements he'd made that Planned Parenthood Arizona cited in its motion.
The Arizona Supreme Court on Thursday did not immediately respond to The Arizona Republic's question as to whether Montgomery would recuse himself. But Howard Fischer of Capitol Media Services reported Oct. 23 that Montgomery was not planning to disqualify himself from the case.
The Supreme Court in August said it would review an Arizona appellate court panel's Dec. 30 decision that abortions performed in the state by licensed physicians are legal up to 15 weeks of gestation in spite of a near-total abortion ban that dates back to 1864 and remains on the books.
Some abortion opponents do not believe the two laws coexist. Rather, they argue the near-total ban is the current, enforceable state law. Arizona adopted the 1864 law with streamlined language pre-statehood in 1901; it remains on the books today as ARS 13-3603.
In its motion for recusal, Planned Parenthood Arizona lawyers cite as examples of bias a since-deleted Facebook post from 2017 when Montgomery was Maricopa County attorney. The post says Planned Parenthood is "responsible for the greatest genocide known to man," which the Planned Parenthood lawyers say affects Montgomery's impartiality in the case going to the state Supreme Court.
The motion also cites Montgomery's participation in a protest outside of Planned Parenthood Arizona in 2015 when he publicly accused the organization of "profit-driven atrocities," the lawyers write.
The request that Montgomery recuse himself "is in no way based on Justice Montgomery’s personal views about whether abortion is 'good' or 'bad' as a matter of policy," the lawyers write. "That, of course, is insufficient to warrant recusal."
Instead, the motion rests on the "prejudicial public statements" that Montgomery made about Planned Parenthood, the motion says. The motion quotes Arizona's Code of Judicial Conduct, which says that a judge "shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned."
The statute cites as an example of such a circumstance as "the judge has a personal bias or prejudice concerning aparty or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding."
The original court case dates to a lawsuit filed by Planned Parenthood that challenged the pre-statehood near-total abortion ban in the early 1970s, before the U.S. Supreme Court's 1973 Roe v. Wade decision.
After Roe v. Wade, the Arizona Court of Appeals approved a stay on the law that remained in place — allowing legal abortions in the state — until the June 2022 decision by a more conservative U.S. Supreme Court to overturn Roe v. Wade.
The decision put the question of abortion policy back in the hands of states, and the Pima County Superior Court, where the 1973 stay on the pre-statehood law was issued. In September 2022, Pima County Superior Court Judge Kellie Johnson decided to side with Arizona Attorney General Mark Brnovich and reinstate the near-total territorial-era ban, which makes no exceptions for rape or incest, though it does make an exception to save the life of the mother.
The Arizona Court of Appeals paused Johnson's decision on the 19th-century abortion ban pending the outcome of an appeal from Planned Parenthood Arizona. As a result, the near-total ban was only briefly in effect. The appellate court ruled Dec. 30 that physicians wouldn't be prosecuted for performing abortions at 15 weeks or less gestation.
State Attorney General Kris Mayes, a Democrat who was elected along with Democratic Arizona Gov. Katie Hobbs in November, has refused to defend against Planned Parenthood's case. Dr. Eric Hazelrigg, an anti-abortion obstetrician/gynecologist who is listed in court documents as the "guardian ad litem for all Arizona unborn infants," is the intervenor who appealed the case to the Arizona Supreme Court. Yavapai County Attorney Dennis McGrane is listed as a second intervenor.
If the state's highest court rules in Hazelrigg and McGrane's favor, abortions would be illegal in Arizona except in cases to save the life of the mother, and anyone who performs an abortion would face prison time.
Hobbs this month filed an amicus brief in the case that sides with Planned Parenthood Arizona and asks the state Supreme Court to keep abortion legal.
Montgomery is one of seven justices who sits on the Arizona Supreme Court. He was appointed by then-Gov. Doug Ducey in 2019 after he had served as the Maricopa County attorney for nearly a decade. His controversial tenure as county attorney led to an initial rejection by the appellate court appointment commission when he applied for another previously vacant seat on the bench. Montgomery was retained by voters in 2022.
Republic reporters Jimmy Jenkins and Ray Stern contributed to this article.
Reach health care reporter Stephanie Innes at [email protected] or at 602-444-8369. Follow her on X formerly known as Twitter @stephanieinnes.
This article originally appeared on Arizona Republic: Planned Parenthood wants Arizona Supreme Court judge off abortion case
