Justice: Fairness in Arizona abortion case possible despite past comments

PHOENIX — Supreme Court Justice William Montgomery said he has done or said nothing that would make him unable to fairly judge a pending lawsuit brought by Planned Parenthood Arizona over whether abortion remains legal in Arizona.

In an order he signed late Wednesday, Montgomery does not dispute that he made comments in 2015 about Planned Parenthood saying that “the profit-driven activities must end.” And he said he did post a comment on Facebook in 2017 saying “Planned Parenthood is responsible for the greatest generational genocide known to man.”

But Montgomery said none of that runs afoul of one provision of the Code of Judicial Conduct for a simple reason.

“When each of the statements were made in 2015 and 2017, I was not a member of the judiciary nor was I a candidate for judicial office,” Montgomery wrote. “Therefore, the Code of Judicial Conduct did not apply,” he said, including a rule about avoiding impropriety and the appearance of impropriety.

The justice, a former Maricopa County attorney who was appointed to the state’s high court in 2019, acknowledged there is a separate rule that requires a judge to recuse himself or herself if there is “a personal bias or prejudice concerning a party or a party’s lawyer.”

But he said that any comments he made were not specifically about Planned Parenthood Arizona — the local affiliate that is involved in the lawsuit — or its facilities. And Montgomery said he did not use his position to investigate or prosecute the organization criminally or civilly.

And all that, he said, allows him to be one of the justices deciding the future of abortion law in Arizona.

There was no immediate response late Wednesday from Planned Parenthood, which had asked him to step aside.

His decision, by itself, is not a surprise.

Montgomery told Capitol Media Services last month that he would not step aside. He said then that anything he has said in the past about abortion or Planned Parenthood is irrelevant.

“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,” he said at the time. “My oath of office requires no less.”

What is unusual is the 10-page, single-spaced statement issued Wednesday where Montgomery explains in detail why he made the earlier comments about Planned Parenthood — and why he can fairly judge this case.

Particularly noteworthy is Montgomery even seeks to build a defense against any claim he is biased against Planned Parenthood.

He disclosed for the first time about records about donors and contributions to the organization that found their way to his office as county attorney in 2015. They were discovered by a crew cleaning a building that Planned Parenthood had vacated.

Montgomery said after reviewing the records to look for possible criminal violations, he ordered them destroyed to protect any confidential information. And in handling them that way, he said, he avoided creating public records that could be used to insinuate or suggest Planned Parenthood had engaged in any illegal activity.

“That the records could easily have been used for political gain during 2016 or otherwise used to the detriment of (Planned Parenthood) was never discussed or contemplated,” Montgomery said, saying the organization “was treated fairly and impartially.”

Yet even as he said that he could have used that information, he repeated “there was no evidence of any wrongdoing.”

All that leaves the two statements that Planned Parenthood said undermine his ability to be impartial — and why Montgomery disagrees.

The context for the first about the “profit-driven activities” of Planned Parenthood, he said, was “reporting concerning the sale of body parts from abortion procedures.”

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“Similar events occurred across the valley and around the country,” Montgomery said. “The remarks to the media specifically focused on a call for Congress to end federal funding of Planned Parenthood.”

All this was based on an undercover video by anti-abortion activists from the Center for Medical Progress they said showed that Planned Parenthood officials — not in Arizona — were selling aborted fetal tissue.

Multiple investigations concluded that while Planned Parenthood does provide tissue for medical research, there was no evidence it was making a profit.

A grand jury in Harris County, Texas, indicted two activists from Center for Medical Progress for using fake driver’s licenses to get access. And a federal jury in San Francisco awarded Planned Parenthood more than $2 million in damages after concluding that a leader of that group had broken federal and state laws when he secretly recorded workers for the organization.

Montgomery acknowledged that he could find no reported cases of any court, anywhere, determining that such sales of fetal tissue ever occurred. But he said his statements at the time on the controversy do not disqualify him from judging this case.

“I made not allegations as to (Planned Parenthood Arizona’s) specific facilities,” he said, nor did he call for any investigation or prosecution.

As to the comments about Planned Parenthood being responsible for the “greatest generational genocide known to man,” Montgomery repeated his comments that he never made said anything specifically about Planned Parenthood Arizona, the party to this case. And he called it “misleading” to say the statement was made by him “as a prosecutor.”

What makes all of this relevant is that the court will hear arguments Dec. 12 about which of two potentially conflicting laws on abortion will be the law in Arizona.

Mark Brnovich, then the state attorney general, fired the first legal salvo last year after the U.S. Supreme Court overturned Roe v. Wade and its conclusion there is a constitutional right of women to terminate a pregnancy. He argued — and Pima County Superior Court Judge Kellie Johnson agreed — that automatically reinstates a territorial-era law which outlaws all abortions except to save the life of the mother.

But Planned Parenthood Arizona, along with Pima County Attorney Laura Conover, pointed out that state lawmakers had previously approved a law allowing doctors to perform an abortion through the first 15 weeks of pregnancy. That measure was designed to be ready had the U.S. Supreme Court, rather than overturning Roe, upheld a similar 15-week restriction from Mississippi.

The Court of Appeals agreed, setting the stage for the Supreme Court hearing in December — and prompting Planned Parenthood to ask Montgomery to recuse himself given his prior statements.

Montgomery said there is precedent for an appellate court judge to sit in when a justice is recused, a move that ensures there are seven people on the bench to decide.

But that, he said, is not a path for him.

“I was appointed by the governor of Arizona and retained by the people of Arizona,” he said, the latter a reference to the fact that, like all judges, he had to stand for reelection on a retain-reject basis. He earned a new term in 2022 by a 55-45% margin, the smallest of any of the justices on the ballot that year.

There is no procedure for Montgomery’s decision to be overridden by the other six justices.

While Planned Parenthood asked him to recuse himself, the other parties seeking to preserve the 15-week ban did not.

Kris Mayes, the current state attorney general, has weighed in on the side of Planned Parenthood. She has said recusal in the case is up to Montgomery.

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