If Arizona justices tie on abortion, here's which side prevails

PHOENIX — The Arizona Supreme Court will decide with only six justices whether virtually all abortions are illegal in Arizona. That leads to the possibility of a 3-3 tie on the issue.

A tie vote, if it ends up that way, would mean the decision of the Court of Appeals prevails. That would leave in place a 2022 law that allows doctors to terminate pregnancies through 15 weeks versus the near outright ban that dates to the state’s territorial days.

The unusual situation follows the decision by Justice William Montgomery to recuse himself from the case.

Montgomery said a week ago he made that decision after reviewing what is required of a judge in the Arizona Code of Judicial Conduct, which spells outs situations in which a judge’s impartiality might be questioned. He did not disclose specifics, but Planned Parenthood Arizona had asked him to recuse himself based on statements he made while Maricopa County attorney, including that abortion is genocide.

The Supreme Court is set to hear arguments Tuesday, Dec. 12, on the abortion issue.

It is not unusual for a justice to step aside.

Often these are cases where the justice has a connection with the case, such as a justice being a former prosecutor whose office worked on getting a conviction, or one who came from a law firm that was handling a civil case while he or she was still employed there.

It also occurs when a justice knows the parties involved.

The normal procedure, according to court spokesman Alberto Rodriguez, is for the chief justice — in this case, Robert Brutinel — to invite a retired justice to sit in. Alternately, Brutinel could ask the Garye Vasquez, the chief justice from Division 2 of the Court of Appeals which heard the abortion case, to select someone from that court at random to fill the slot.

But Rodriguez said Brutinel has decided not to do that in this case and has provided no reason.

Jake Warner of the Alliance Defending Freedom, which is trying to overturn the Court of Appeals decision and have the territorial-era law reinstated, said he respects the high court’s decision to hear the case with just six justices.

“We remain hopeful that the court will uphold Arizona’s law affirming that life is a human right,” he said.

There was no immediate response from Planned Parenthood Arizona, which wants the justices to uphold the appellate court ruling allowing abortions to be performed in the first 15 weeks of pregnancy — and which would benefit from a tie vote among the six justices hearing the case.

There is no simple way to handicap how the remaining six justices might vote.

A majority were appointed by Republican Doug Ducey, an ardent foe of abortion, when he was governor.

“I am proud that Arizona has been ranked the most pro-life state in the country,’’ Ducey said in a 2022 post on Twitter, now X, the day the U.S. Supreme Court overturned Roe v. Wade and its conclusion that women had a constitutional right to abortion.

But Ducey, in an interview last year before the U.S. Supreme Court ruling, said he believed the 15-week law he signed in 2022 would take precedence over the territorial-era law even if the Roe v. Wade was overturned.

“The law of the land today in Arizona is the 15-weeks’ law. And that will remain law,’’ regardless of what the U.S. Supreme Court did, Ducey said then.

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Ducey did not dispute that the territorial-era law remains on the books and never was repealed. But he said that didn’t matter.

“I think that the law you signed in 2022 supersedes 1973,’’ he said.

The U.S. Supreme Court’s subsequent overturning of Roe left the decision on regulating abortions to each state.

Pima County Superior Court Judge Kellie Johnson, acting on a petition by Republican then-Attorney General Mark Brnovich, ruled in September 2022 that the end of Roe meant Arizona’s territorial-era ban on most abortions is once again in effect.

That law makes it a crime to perform abortions except to save the life of the mother. Doctors could face up to five years in state prison.

But Planned Parenthood Arizona, along with Democratic Pima County Attorney Laura Conover, pointed to the 2022 state law allowing the procedure through the 15th week of pregnancy.

That law was approved by the Republican-controlled Legislature in anticipation that the U.S. high court would simply uphold a nearly identical law in Mississippi and not scrap Roe v. Wade entirely.

A three-judge panel of the Arizona Court of Appeals, in an opinion late last year authored by Vasquez, acknowledged that lawmakers never repealed the territorial-era law. But they said that law and the new one can be “harmonized’’ so they do not conflict.

That brings the case to the Arizona Supreme Court to sort out.

Montgomery initially refused calls that he recuse himself, saying nothing he said before being appointed to the high court by Ducey in 2019 reflects on his ability to judge the case fairly. But he reversed course less than two weeks later.

The political and legal landscape also has changed in the past year.

Brnovich left office at the end of last year when his term was up. He was replaced by Democratic Attorney General Kris Mayes who has said she believes that, regardless of the decision to overturn Roe v. Wade, women can lawfully terminate a pregnancy because there is a provision of the Arizona Constitution guaranteeing a right to privacy.

Mayes refused to defend the territorial-era law, siding with Planned Parenthood and Conover.

That leaves defending that law up to Dr. Eric Hazelrigg, whom the court appointed to represent the interests of unborn children.

He is medical director of the Crisis Pregnancy Center, which does not provide abortions. Hazelrigg is represented by the Scottsdale-based Alliance Defending Freedom, which opposes abortion.

The reality of what can happen with a tie vote played out earlier this year in Iowa.

That state’s Supreme Court was considering a bid by Gov. Kim Reynolds to overturn a trial judge’s decision to void a law prohibiting abortions after cardiac activity can be detected. That generally occurs around six weeks, and often before a woman knows she is pregnant. But the 3-3 tie by the court left the lower court ruling intact, meaning abortion remains legal in Iowa through the 20th week of pregnancy.