Arizona justice recuses self from abortion case involving his senator wife

PHOENIX — Arizona Supreme Court Justice Clint Bolick has taken himself off the case of whether the Legislative Council — which includes his wife, Shawnna — acted improperly in using the words "unborn human being'' in a description of an abortion initiative.

His recusal was revealed in a footnote in a scheduling order issued by the court Wednesday. No reason was given.

But state Sen. Shawnna Bolick, a Phoenix Republican, is one of the 11 members of the council being sued, by initiative backers, over the summary of Proposition 139 that will appear in a pamphlet being sent to all voters in Arizona. 

The wording's approval came on a narrow 8-7 vote, with only the Republicans on the panel — including Sen. Bolick — voting in favor.

In fact, the Democratic lawmakers on the council filed their own legal briefs arguing the language is biased and should be stricken. They, and the group behind the citizens' initiative, say "fetus" is the medically accurate term. 

Maricopa County Superior Court Judge Christopher Whitten ruled last month the Legislative Council acted illegally. The "unborn human being" phrase "is packed with emotional and partisan meaning both for those who oppose abortion and for those who endorse a woman's right to choose whether to have an abortion,'' the judge said. He ordered the council to remove it. 

GOP lawmakers on the council disagreed and filed an appeal, sending the case to the Supreme Court.

While Justice Bolick would not discuss his reasoning for taking himself off the case, his office released a statement about how he looks at whether to recuse himself from any case. It includes his wife's involvement as a party to this litigation.

"He will recuse in any challenge to the constitutionality of a law in which he is aware that his wife was a prime sponsor or prominently identified as a supporter or opponent,'' the statement said. "Otherwise, he will not.'' 

In 2022, Sen. Bolick, then a member of the House, co-sponsored the legislation that is now Arizona's law on abortions, banning them after the 15th week of pregnancy. The initiative, if approved by voters in November, would override that law and enshrine a constitutional right to abortion in the state Constitution. 

Dawn Penich, spokeswoman for Arizona for Abortion Access, the group suing over the council's wording, confirmed her organization had not asked for Justice Bolick to step aside. But she said the group behind Proposition 139 is pleased. 

"Like anyone else, we want to be able to trust that our arguments are heard in a fair way by an unbiased court, both in this case and the future,'' Penich said.

Indeed, another case involving Proposition 139 is also likely to wind up in front of the high court.

Arizona Right to Life is trying to block the measure from appearing on the November ballot. Its attorneys argue the wording of the initiative, as well as a summary prepared by proponents, are too legally flawed to be allowed to go to voters. That case is still before Maricopa County Superior Court Judge Melissa Julian, but whatever she decides is expected to be appealed to the Supreme Court.

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What's in Prop. 139 never was subject to legislative action, having been placed on the ballot through a petition drive by Arizona for Abortion Access. The group submitted more than 820,000 signatures on petitions, more than twice as many as needed.

But there is a link of sorts to the Legislature, and to Sen. Bolick, beyond the wording of the summary going into the pamphlet for voters. 

If the initiative is defeated, that would leave the 15-week limit on abortions in place that she co-sponsored. 

Complicating the issue is that the Arizona Supreme Court ruled in April that a territorial-era law outlawing virtually all abortions, never wiped from the books, superseded the 15-week limit. Justice Bolick voted in the majority.

Then, Sen. Bolick was one of two Senate Republicans who subsequently joined with Democrats to repeal the territorial-era law, allowing the 15-week limit to remain the law in Arizona.

In explaining her vote, Sen. Bolick read a long prepared statement detailing her three pregnancies, including one that ended in a miscarriage. She said her point was to explain that not all pregnancies are the same.

Beyond that, she said she believes a 15-week ban is a far preferable choice than the more far-reaching ballot measure.

The initiative would replace that law with a constitutional amendment allowing the procedure without state interference or restriction up until fetal viability, considered between 22 and 24 weeks. It also would permit abortions beyond that in cases where the treating health-care professional determined it was "necessary to protect the life or physical or mental health of the pregnant individual.''

Chief Justice Ann Scott Timmer announced that retired Justice John Pelander will sit in Justice Bolick's place in this case "until it is finally determined.''

Justice Bolick's vote to reinstate the territorial-era law has had other political fallout. He and Justice Kathryn King, who also voted to override the 15-week law, are on the ballot this year and voters will decide whether they will get a six-year term to remain on the high court. 

Progress Arizona, a political action group, has launched a campaign to urge voters to turn the two justices out of office, a move that, if successful, would allow Democratic Gov. Katie Hobbs to name their replacements on the seven-member court.

At the same time, Republican lawmakers have put Proposition 137 on the ballot to give most justices and judges life terms — at least until retirement age of 70 — without having to face regular retention elections. And they wrote it in a way that if voters approve, it would be retroactive, allowing Bolick and King to remain on the bench even if Arizonans vote separately to remove them.

Progress Arizona has since filed suit to knock Prop. 137 off the ballot, charging it violates constitutional requirements limiting such measures to a single subject. Yavapai County Superior Court Judge John Napper has yet to issue a ruling.

But whichever side loses is likely to seek Supreme Court review. That, in turn, raises the question of whether Bolick, King — or, for that matter, any sitting justice — has a conflict of interest.

One option would be for Timmer to appoint retired justices, who would be unaffected by the outcome of Proposition 137, to hear and decide that case.