PHOENIX — Planned Parenthood Arizona is formally asking state Supreme Court Justice William Montgomery to disqualify himself from sitting on an upcoming case brought by the abortion provider where the state’s high court will decide whether the procedure remains legal here.
The motion filed late Thursday cited a story this week by Capitol Media Services that highlighted the former prosecutor’s disparaging comments about Planned Parenthood. Montgomery said Monday – before the new motion was filed – that he would not step aside from the case over public statements he made that said Planned Parenthood was responsible for “the greatest generational genocide known to man.’’ He said he would decide the case impartially.
The Republican, who at the time was serving as the elected Maricopa County Attorney, made the comments in a since-deleted 2017 social media post. He also made statements to the media criticizing the abortion provider while he was participating in a 2015 protest outside Planned Parenthood Arizona’s Phoenix headquarters.
He wrote in the 2017 Facebook post that “Planned Parenthood’s business model requires abortions. Planned Parenthood is responsible for the greatest generational genocide known to man.” And at the 2015 protest, he told reporters that Planned Parenthood Arizona’s “profit-driven atrocities must end.”
Planned Parent Arizona’s motion seeking Montgomery’s recusal said that the genocide statement shows he has enough prejudice or bias toward the provider to trigger a court rule requiring a judge to step aside when their “impartially might reasonably be questioned.”
And his participation in and comments during the protest “is further evidence of bias,” lawyers for Planned Parenthood Arizona wrote in the court filing. They pointed to another rule requiring judges to “avoid the appearance of impropriety.” Conduct that raises reasonable doubt that a judge can be impartial triggers that rule.
“And here again, there’s no question that “reasonable minds” would perceive Justice Montgomery’s public statement accusing PPAZ of “atrocities” while standing outside PPAZ’s headquarters amid an anti-PPAZ protest as reflecting adversely on his impartiality in a case where PPAZ is a party,” the court filing says.
Asked whether he should step aside on Monday, Montgomery issued a statement saying he would hear the case on the fact and the now, not his view of Planned Parenthood.
“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 wrote. “My oath of office requires no less.”
Montgomery has sat out previous cases since joining the court in 2019, mainly involving criminal defendants prosecuted during his time as county attorney from 2010 until he was appointed to the court.
Unless he steps aside, Montgomery will join the high court’s six other justices in December when they hear arguments on whether abortion remains legal in the state.
The U.S. Supreme Court ruled last year that women do not have a constitutional right to obtain an abortion. That decision overturned Roe v. Wade and its 50 years of precedent that prevented states from banning the procedure before fetal viability, generally about 24 weeks into a pregnancy.
Arizona still has a pre-Roe abortion ban on the books, but a host of other laws enacted since Roe regulate the procedure.
After Roe was struck down, the state went through months of confusion over whether the pre-Roe ban was again in force or if a 2022 law signed by then-Gov. Doug Ducey barring abortion after 15 weeks of pregnancy took precedence. During much of that time, all abortions in the state were halted.
Then-Attorney General Mark Brnovich convinced Pima County Superior Court Judge Kellie Johnson to rule that the U.S. Supreme Court decision automatically reinstated the pre-statehood law banning abortion unless the mother’s life was in peril.
But Planned Parenthood got the state Court of Appeals to decide the old law was superseded by one Ducey signed. The Supreme Court will now decide which court ruling was correct.
Meanwhile, abortion supporters are collecting signatures to get the right to abortion added to the state constitution.
A spokesman for the Arizona Supreme Court said Friday that the new filing was being reviewed, and Montgomery had no additional response.
Planned Parenthood Arizona’s director of public policy and government relations said in a statement announcing the request for Montgomery to step aside that the provider is entitled to have its case heard by unbiased judges just like all other litigants.
“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,” Kelley Dupps said.
