The Arizona Supreme Court could split evenly on a key abortion case. Here's what that means

Ray Stern, USA TODAY NETWORK
·2 min read
14

One of the most awaited decisions by the Arizona Supreme Court could end up in a tie.

The seven-member court has decided not to replace Justice Bill Montgomery in Planned Parenthood vs. Kris Mayes/Hazelrigg, the case that could end nearly all legal abortions in Arizona. The case centers on which law on abortion should govern Arizona: a 2022 measure an Arizona court favored in the most recent ruling in the case that allows the practice up until 15 weeks of gestation, or a 19th-century, Civil War-era near-total ban on abortion.

Montgomery, a former Maricopa County attorney who posted on Facebook in 2017 that Planned Parenthood is "responsible for the greatest genocide known to man," recused himself from the case last week following a motion by the abortion-rights group that he was too biased to participate.

"There will not be a replacement," court spokesman Alberto Rodriguez told The Arizona Republic, part of the USA TODAY Network, on Wednesday in response to a question on the issue. "The court is not required to choose a replacement justice."

The remaining six justices who will make the decision are scheduled to hear oral arguments in the case at 9:30 a.m. Mountain Standard Time on Dec. 12.

A decision is likely to take weeks or months. But if it ends in a 3-3 tie, the September 2022 decision by the Arizona Court of Appeals Division Two would stand, Rodriguez said after consulting with state Supreme Court Chief Justice Robert M. Brutinel.

The appellate court agreed with Planned Parenthood's argument 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 allows an exception to save the life of a mother but has no exceptions for rape or incest. But that's far more permissive than the territorial law, first codified in 1864, that mandates two to five years in prison for anyone providing an abortion except to save the life of a mother.

Ties in state Supreme Court cases are rare, but it could happen. In June, Iowa's Supreme Court deadlocked in a 3-3 decision that denied a new, six-week abortion ban from taking effect.

Reach the reporter at rstern@arizonarepublic.com or 480-276-3237. Follow him on X @raystern.

This article originally appeared on Arizona Republic: Arizona Supreme Court abortion ruling could end in a tie. What's next