An Arizona Supreme Court judge with a history of vilifying Planned Parenthood — once going as far as accusing it of orchestrating a genocide — should recuse himself from a case involving the organization, according to the latest court filing.
On Thursday, attorneys for Planned Parenthood Arizona submitted a motion for recusal, arguing that Justice Bill Montgomery should withdraw from a case set to be heard in December that will determine whether abortion is banned outright across the state.
A 2017 Facebook post in which Montgomery — then the Maricopa County attorney — blamed Planned Parenthood for the “greatest generational genocide known to man,” first reported by Phoenix New Times after Montgomery was appointed to the state’s high court in 2019, has elicited skepticism about his ability to remain impartial.
The claims were surfaced last week in a story co-published by the Arizona Mirror and The 19th.
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“Planned Parenthood Arizona believes 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 Kelly Dupps, the organization’s senior director of public policy and government relations in an emailed statement.
Planned Parenthood Arizona runs four of the state’s nine abortion clinics, and has been the main litigant in a lawsuit challenging the legality of a near-total abortion ban that dates back to the Civil War era.
Last year, former Attorney General Mark Brnovich, a Republican, went to court to reinstate an 1864 law that punishes providers with a mandatory 2- to 5-year prison sentence if they perform an abortion for any reason other than saving the patient’s life. Brnovich reasoned that a provision in a 2022 law banning abortions after 15 weeks asserting that it doesn’t repeal past laws meant that the 1864 ban should go back into effect.
But Planned Parenthood Arizona argued that the same provision also protects every other law regulating abortion care, meaning the procedure should continue to exist in some form. A December 2022 ruling from the state’s appeals court upheld the 15-week ban over the 1864 law, but an anti-abortion doctor is hoping to convince the Arizona Supreme Court to reverse that ruling.
Montgomery has said that he will not recuse himself and that he will consider the merits of the case without letting his personal opinions sway him, but Planned Parenthood Arizona said his professed opposition to the organization could jeopardize its right to a fair trial. Montgomery could not be reached for comment on whether his plans to remain on the case have changed.
“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 in this case given that PPAZ is a party,” reads the brief.
Arizona’s Code of Judicial Conduct instructs judges to step aside from cases in which their “impartiality might reasonably be questioned,” including situations in which the judge has a personal bias or prejudice against one of the parties or lawyers involved. Judges are strongly encouraged to avoid any impression of impropriety, defined as behavior that would make a “reasonable mind” doubt the judge’s honesty or impartiality. The code also notes, however, that a judge’s personal views which conflict with the arguments of the involved parties, previous rulings on related cases and general opinions about legal issues don’t require recusal.
But Planned Parenthood Arizona argued that Montgomery’s position and bias against the organization is too blatant to ignore. In 2015, Montgomery attended a protest against the organization and accused it of committing “profit-driven atrocities.”
“There’s no question that ‘reasonable minds’ would perceive Justice 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,” wrote attorneys.
The attorneys added that their argument wasn’t based on Montgomery’s personal views about abortion, but rather on his repeated — and public — opposition to Planned Parenthood Arizona. Refusing to withdraw from the case would amount to a violation of the organization’s due process right to a fair and impartial trial, they claimed.
The decision to recuse is solely Montgomery’s, however, and there is no way for Planned Parenthood Arizona to appeal if he opts not to sit out the case. The Arizona Supreme Court is scheduled to hear oral arguments in the case on Dec. 12.
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