Arizona Justice: 'Genocide' comment irrelevant to hearing abortion case

PHOENIX — Supreme Court Justice William Montgomery won’t disqualify himself from hearing a pending case brought by Planned Parenthood over whether abortion remains legal in Arizona even though as a prosecutor he said the organization “is responsible for the greatest generational genocide known to man.’’

Montgomery, who was Maricopa County attorney in 2017 when he posted on Facebook, has not disputed the statement which was first disclosed in 2019 by Phoenix New Times when then-Gov. Doug Ducey tapped him for the state’s high court. The newspaper has a screen shot of the posting.

“Planned Parenthood’s business model requires abortions,” Montgomery wrote in the post.

Montgomery, in a statement Monday to Capitol Media Services, said that all parties in the case “are entitled to a fair and impartial adjudication of the legal issues presented.” And he said the “underlying subject matter” — in this case, abortion — is not relevant.

Also not relevant, he said, is what he has said in the past.

“As with any other case involving an issue I may have previously taken a position on while serving as an executive branch official, I will consider the facts and the law to determine the merits of any legal argument presented without regard for any prior position and without passion or prejudice,’’ Montgomery told Capitol Media Services in a statement. “My oath of office requires no less.”

But Montgomery’s statements appear to go far beyond his position on whether women should have a legal right to terminate a pregnancy. Here, he is expressing specific viewpoints about Planned Parenthood, which is one of the litigants in the case.

The Code of Judicial Conduct says a judge “shall disqualify himself” in any proceeding in which impartiality “might reasonably be questioned.” And it specifically mentions any case in which “the judge has a personal bias or prejudice concerning a party.”

Montgomery said he is “mindful” of his role as a judicial officer and the requirements of the code. But he declined to answer additional questions, saying that could call into question whether anything he is doing undermines rules that require a judge to act in a way that “promotes public confidence in the independence, integrity, and impartiality of the judiciary” and says a judge “shall avoid impropriety and the appearance of impropriety.”

“Concerns about my ability to be independent, act with integrity, and decide cases impartially have been addressed in matters I have participated in over the last four years,” he said.

Montgomery’s 2017 post about Planned Parenthood isn’t his only public comment about the organization.

“PP encourages the very behavior that leads to STDs (sexually transmitted disease) and abortions,” he wrote. “Their business model relies on it.”

What makes all this critical is that the Supreme Court is set to hear arguments in December about whether abortion remains legal in Arizona.

All this is in the wake of a decision last year by the U.S. Supreme Court overturning the historic 1973 ruling of Roe v. Wade which said women have a constitutional right to terminate a pregnancy, at least prior to fetal viability. That 2022 decision returned the issue to each state.

Mark Brnovich, who was the state attorney general at the time, convinced Pima County Superior Court Judge Kellie Johnson to rule the Supreme Court decision automatically reinstated a territorial-era law which outlaws all abortions except to save the life of the mother.

But Planned Parenthood got the state Court of Appeals to decide the old law was superseded by a 2022 statute that allow doctors to terminate pregnancies through the 15th week of pregnancy. It is that issue which is before the state’s high court.

Back to homepage

Subscriber Login

Keep reading with a digital access subscription.

Subscribe now

The organization is now taking a closer look at Montgomery.

“Planned Parenthood Arizona believes that all litigants are entitled to have their cases heard by judges who are not biased against them,” said Kelley Dupps, the organization’s senior director of public policy and government relations. “We are evaluating the recent reporting that may impact our case in front of the Arizona Supreme Court.”

But Pima County Attorney Laura Conover, who also is arguing the 15-week law takes precedence, said she is not concerned about Montgomery’s decision.

“We have faith in the strength of our arguments and that the court will view them based on the law, not ideology,” she said.

And Kris Mayes, the current attorney general who has weighed in on the side of Planned Parenthood, took a more nuanced approach.

“I believe that Justice Montgomery can decide for himself whether it is appropriate to recuse himself,” she said.

In the end, the views of the lawyers in the case — or even the other six justices on the court — do not matter. There is no procedure to force a Supreme Court justice to step aside.

Montgomery’s views on abortion are not new.

In 2012 he argued in a court case that Arizona has a legal right to ban abortions, even with the 1973 Supreme Court ruling about a woman’s constitutional rights. He said lawmakers are entitled to “due deference” in making decisions in this area.

“I would recognize the inherent human dignity in a life at the moment of conception,” he told a federal judge, saying the procedure should be outlawed “unless it impacted the health and welfare of the mother.”

The court disagreed. That left Arizona with its laws at the time which allowed abortions through fetal viability, generally considered between 22 and 24 weeks of pregnancy.

While his position on abortion aligned with Ducey, Montgomery was a controversial pick from the start.

Both the American Civil Liberties Union and Lambda Legal fought to keep him from even being nominated for the court amid claims that Montgomery, in his official position as Maricopa County attorney, discriminated against same-sex couples.

One key incident both groups cited dated back to 2015 when Montgomery, whose office was required to provide legal assistance to couples who are adopting, refused to do so for a same-sex couple even after a federal judge ruled that Arizona’s law banning such marriages is unconstitutional. Montgomery contended that decision still did not provide the same rights of gays to adopt.

When that argument faltered, Montgomery pushed the Legislature to repeal the entire requirement for his office to provide free legal help for anyone. It was only a veto by Ducey that blocked the maneuver.