Justice who called abortion 'genocide' won't hear Arizona case after all

PHOENIX — Reversing course, an Arizona Supreme Court justice says he won't take part in deciding whether virtually all abortions are illegal in the state after coming under criticism for past comments.

In a brief order Thursday, Justice William Montgomery cited a provision of the Arizona Code of Judicial Conduct listing the circumstances under which a judge "shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned.''

But he defended his initial Nov. 22 decision to continue to hear the case despite objections from Planned Parenthood Arizona, one of the parties. He said that was based on his belief that an "objective, disinterested observer'' would not question that justice would be done despite his past statements criticizing the national organization.

"Regardless, there exists a continuing duty for a judicial officer to consider whether recusal may be necessary,'' Montgomery wrote Thursday. "Subsequent to the Nov. 22 order, additional information related to the parties and respective counsel has come to my attention warranting that I recuse myself from any further deliberations in this matter."

Montgomery did not spell out that "additional information.'' A spokesman for the court said there would be no further comment.

In 2015 Montgomery said Planned Parenthood "encourages the very behavior that leads to STDs (sexually transmitted disease) and abortions" and "Their business model relies on it.''

And he stated in 2017 that "Planned Parenthood is responsible for the greatest generational genocide known to man.''

The court will hear arguments Dec. 12 about which of two potentially conflicting laws on abortion will be the law in Arizona.

"Personal bias or prejudice"

Within the judicial conduct provision Montgomery cited is a laundry list of factors that require recusal, ranging from a "personal bias or prejudice'' about a party or that person's lawyer, to questions of having a financial interest in the outcome of the case, to whether the judge has received certain campaign contributions.

Montgomery previously said his Planned Parenthood comments were irrelevant, coming when he was Maricopa County attorney, before he was tapped for the high court in 2019 by Republican then-Gov. Doug Ducey.

"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 had said. "My oath of office requires no less.''

That didn't end the matter, with attorneys for Planned Parenthood Arizona, citing a previous Capitol Media Services article, formally asking Montgomery to disqualify himself.

Montgomery responded with a 10-page, single-spaced statement where he explained in detail why he made the earlier comments about Planned Parenthood and why he said he could fairly judge the case.

A spokeswoman for Planned Parenthood Arizona said the organization is pleased Montgomery has recused himself.

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"As we said at that time, we believe 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 public policy and government relations. "We welcome today's (Thursday's) order and believe the information we presented in our motion was more than sufficient for Justice Montgomery to recuse himself.''

What's next

Thursday's action leaves a decision to Chief Justice Robert Brutinel.

He is allowed to name a judge from the state Court of Appeals to sit in and help decide the case. But Brutinel also could opt to have the case heard with just the remaining six justices.

It is not known whether the other justices spoke with Montgomery about his initial decision to remain on the case. But there is no procedure for them to have overridden his initial decision that he could hear the case fairly.

What's at stake  

Then-Attorney General Mark Brnovich, a Republican, said last year that the 2022 decision by the U.S. Supreme Court to overturn Roe v. Wade, and its finding that women had a federal constitutional right to terminate a pregnancy, means each state gets to set its own laws.

He got Pima County Superior Court Judge Kellie Johnson to rule that decision automatically reinstated a territorial-era law that outlaws all abortions in Arizona except to save the life of the mother.

But Planned Parenthood Arizona, along with Pima County Attorney Laura Conover, a Democrat, pointed out that Arizona lawmakers approved a law in 2022 — before the U.S. Supreme Court ruling — 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.

Challengers argued the newer Arizona law still trumps the territorial act.

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

Current Attorney General Kris Mayes, a Democrat, has sided with Planned Parenthood. That has left the task of defending the supremacy of the territorial-era law to Eric Hazelrigg, who was appointed by the courts to represent the interests of unborn children.

Hazelrigg, medical director of the anti-abortion Crisis Pregnancy Center, is being represented by the Scottsdale-based Alliance Defending Freedom.