Anti-abortion state Supreme Court justice recuses himself from Arizona abortion lawsuit

Arizona Supreme Court Justice Bill Montgomery recused himself from the appeal of a lawsuit by Planned Parenthood seeking to stop a 19th-century total ban on abortions from taking effect.

Montgomery previously denied a motion by Planned Parenthood to recuse himself, but reversed his decision due to "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," his Nov. 30 order stated.

He declined through a court spokesman to say what that information was.

Kelley Dupps, senior director of public policy and government relations for Planned Parenthood Arizona, said in a statement the group welcomes his order and that the motion provided sufficient reason for the recusal.

"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," Dupps said.

Planned Parenthood's Oct. 26 motion cited recent reporting about a 2019 Phoenix New Times article about Montgomery's bias against abortion, including his statement in a now-deleted, 2017 Facebook post in which he wrote the practice "is responsible for the greatest generational genocide known to man."

The article followed a Twitter post a few days earlier about his statement by now-state Rep. Analise Ortiz, D-Phoenix.

"Montgomery’s extreme views on reproductive healthcare, the rights of our LGBTQ+ community, and more were a key reason why the community spoke out in force against him being appointed to the state Supreme Court in 2019," Ortiz, who praised his decision to recuse, told The Arizona Republic. "Our freedom to choose for ourselves whether to have a child is too important to leave in the hands of a judge with a clear bias.”

Montgomery was still serving as the elected Maricopa County attorney at the time. He's now one of seven justices on the Arizona Supreme Court. As the 2019 article noted, Montgomery frequently criticized abortion while county attorney from 2010 to 2019. Planned Parenthood's motion also cited his 2015 participation in a protest outside of the liberal group's headquarters "during which he publicly accused PPAZ of engaging in 'profit-driven atrocities.'”

The pre-statehood law, first codified in 1864, mandates two to five years in prison for anyone who facilitates an abortion. It had been quelled by the 1973 Roe v. Wade decision, which settled a lawsuit pending at the time by Planned Parenthood. But it was legally resurrected after the U.S. Supreme Court's June 2022 decision that overturned Roe v. Wade and let states decide how to handle abortion laws.

Former Republican state Attorney General Mark Brnovich convinced a Pima County Superior Court to lift a nearly 50-year-old injunction on the abortion ban, but the state Court of Appeals' Division Two overruled that decision last year. The appellate court's order agreed with Planned Parenthood's argument in new legal proceedings that the old law could be "harmonized" with a 2022 law signed by former Republican Gov. Doug Ducey that allows abortions up to 15 weeks of pregnancy. The newer law provides an exception to save a mother's life, but no exception for rape or incest.

Abortion facilities briefly closed their doors to clients in Arizona before the appellate court decision. The state Supreme Court is scheduled to hear oral arguments in the case on Dec. 12.

Democratic state Attorney General Kris Mayes, a strong defender of abortion rights, refused to defend the case. Yavapai County Attorney Dennis McGrane then joined Dr. Eric Hazelrigg as intervenor-defendants.

Though rare, justices sometimes recuse themselves to abide by court rules that aim to prevent an appearance of prejudice in a case. When that happens, the remaining justices appoint a seventh person to avoid a tie, usually a retired judge or someone from the state court of Appeals.

If the state's high court votes to uphold the law, its decision might soon be challenged by a planned ballot measure in 2024. Abortion advocates need to obtain 383,923 valid signatures from Arizona voters by July 3, 2024, to put the question to voters.

Prominent backer: Gov. Katie Hobbs signs her name to Arizona's abortion access ballot initiative

The planned measure would deem it a "fundamental right" to obtain an abortion before viability, usually considered to be 23 to 24 weeks of gestation. It would stop the state from interfering with a woman's choice to have an abortion after that time if a doctor decided it was "necessary to protect the life or physical or mental health of the pregnant individual."

Democratic Gov. Katie Hobbs — who is nearing the end of her first year in office — signed the petition in a campaign event on Tuesday.

Reach the reporter at or 480-276-3237. Follow him on @raystern.

This article originally appeared on Arizona Republic: Anti-abortion judge recuses himself from Arizona abortion lawsuit