By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Reversing course, Supreme Court Justice William Montgomery said Thursday he won’t take part in deciding whether virtually all abortions are illegal in Arizona after he came under criticism for past comments.

In a brief order, Montgomery 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 statements he has made in the past criticizing the national organization.

“Regardless, there exists a continuing duty for a judicial officer to consider whether recusal may be necessary,” Montgomery said Thursday. And that, he said, includes circumstances set forth in the Arizona Code of Judicial Conduct.

“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,” he wrote in the brief order.

Montgomery did not spell out what was that “additional information.” And a spokesman for the court said there would be no further comment.

But the justice cited a specific provision of the code which lists the circumstances under which a judge “shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.”

Within that provision, however, is a laundry list of factors that require recusal, ranging from a “personal bias or prejudice” about a party or that persons lawyer, to questions of having a financial interest in the outcome of the case or whether the judge has received certain campaign contributions.

The issue of Montgomery’s ability to be fair arose after it was revealed that he had made statements about the national Planned Parenthood organization.

In 2015 he said Planned Parenthood “encourages the very behavior that leads to STDs (sexually transmitted disease) and abortions,” adding that “Their business model relies on it.”

And then there was a 2017 statement saying “Planned Parenthood is responsible for the greatest generational genocide known to man.”

Montgomery, in a statement to Capitol Media Services after the comments were publicized, said they were irrelevant, coming when he was Maricopa County attorney, before being tapped for the high court in 2019 by 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 said. “My oath of office requires no less.”

That didn’t end the matter, with attorneys for Planned Parenthood Arizona, citing the 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 can fairly judge the case.

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 had spoken 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 can hear the case fairly.

A spokeswoman for Planned Parenthood Arizona said the organization is pleased that Montgomery now has acceded to its petition to recuse himself .

“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 order and believe the information we presented in our motion was more than sufficient for Justice Montgomery to recuse himself.”

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

Mark Brnovich, then the state attorney general, claimed last year that the 2022 decision by the U.S. Supreme Court to overturn Roe v. Wade — and its finding there is a federal constitutional right of women to terminate a pregnancy — means each state gets to set its own laws.

More to the point, he got Pima County Superior Court Judge Kellie Johnson to rule that decision automatically reinstated a territorial-era law which outlaws all abortions except to save the life of the mother.

But Planned Parenthood Arizona, along with Pima County Attorney Laura Conover, pointed out that state lawmakers had 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. But challengers argued that newer law still trumps the territorial act.

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

Kris Mayes, the current attorney general, 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.