Pressure mounts on anti-abortion judge to recuse from abortion case

Arizona’s highest court will decide in December whether to let the state enforce a near-total ban on abortion—but one justice may have made up his mind well before the case is heard.

Planned Parenthood of Arizona (PPAZ) filed a motion Thursday requesting that Arizona Supreme Court Justice Bill Montgomery recuse himself from the case regarding Arizona’s 19th-century abortion ban, after a report published by The 19th detailed Montgomery’s past statements against Planned Parenthood and abortion services in general.

A very public record

Bill Montgomery has served quietly on the Arizona Supreme Court since he was appointed by then-Gov. Doug Ducey in 2019. Before his appointment, Montgomery was the Maricopa County Attorney for nearly a decade, where he was anything but quiet.

In 2012, Republicans in the Arizona Legislature passed a 20-week ban on abortion. Once signed into law by then-Gov. Jan Brewer, it was immediately challenged in court for being in violation of federal laws at the time that guaranteed the right to abortion up to fetal viability. Montgomery was quick to defend the law, arguing in court that state lawmakers had the right to mandate not only a 20-week ban, but a total ban if they saw fit.

While Montgomery supports certain exceptions—if pregnancy results from rape or incest, or if the mother’s life is in danger—he has said exceptions should only be considered on an individual basis. He even went as far as to suggest that any woman seeking an abortion would need to explain her medical circumstance before a judge, present evidence to justify the abortion, and wait for judicial approval before qualifying for the procedure.

Courts rejected his arguments and tossed out the 20-week ban. Montgomery appealed the case to the US Supreme Court, which declined to hear it based on the precedent set in Roe v. Wade.

“The ruling is disappointing in that it permits the [doctors] of the country to continue their grisly operations under legal protection,” Montgomery said at the time. “If the 9th Circuit cannot permit Arizona to act because of Supreme Court precedent, then the Supreme Court must change that precedent.”

From ‘grisly’ to ‘genocide’

Three years after describing abortion care as “grisly procedures,” Montgomery went after Planned Parenthood on social media.

“Planned Parenthood is responsible for the greatest generational genocide known to man,” Montgomery wrote in a now-deleted Facebook post. “They put King Herod to shame.”

Montgomery has never walked back or retracted his unfounded accusations against Planned Parenthood. According to a report by Phoenix New Times, Montgomery also accused the non-profit of selling the remains of embryos and fetuses during a 2015 anti-abortion protest outside Planned Parenthood’s Phoenix office.

Planned Parenthood has pointed to Montgomery’s consistent history of adversarial statements against their organization as justification for recusal.

“There can be no question that ‘reasonable minds’ would perceive Justice Montgomery’s public statement accusing PPAZ of ‘genocide’ as reflecting adversely on his impartiality,” the motion for recusal states. “There’s no question that ‘reasonable minds’ would perceiveJustice 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.”

Court date looms

Prior to Planned Parenthood’s formal request for recusal, Montgomery issued a statement to Capitol Media Services indicating he has no intention to excuse himself from hearing the case.

“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.”

While Planned Parenthood filed the motion for recusal, there is no legal mechanism to force a state supreme court justice to recuse themselves from hearing a case. Should Montgomery ignore their request, he will join the six other judges on Dec. 12 to decide whether to reinstate Arizona’s total abortion ban.

If the ban is enacted, abortion would be illegal in the state of Arizona unless the procedure is necessary to save the life of the mother. The penalty for aiding and abetting an abortion procedure would be a minimum prison sentence of two years.

Alternatively, abortion rights groups have begun collecting signatures for a ballot proposition to amend the Arizona Constitution to make abortion access a protected right in the state, and would restore and expand reproductive rights that were removed when the US Supreme Court overturned Roe v. Wade. Those interested in signing the petition or volunteering with Arizona for Abortion Access can find more information on their website.