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Backers of Arizona’s abortion rights ballot measure are calling for state Supreme Court Justice Bill Montgomery, who previously accused Planned Parenthood of committing “genocide,” to step away from a case that could determine whether the phrase “unborn human being” is used to describe the initiative in a voter information pamphlet.
“Like anyone going before any Arizona court, we are entitled to a fair and impartial hearing. The only way to ensure that can happen is for Justice Montgomery to recuse himself. By doing so, he will protect the integrity of the court in public opinion and allow Arizona voters to feel confident that their right to direct democracy is intact,” Dawn Penich, spokeswoman for the Arizona for Abortion Access campaign, said in an emailed statement.
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Lawyers for the campaign filed a motion on Monday requesting that Montgomery recuse himself from a lawsuit centering around whether a legal summary of the act that includes the phrase “unborn human being” is impartial.
They pointed to Montgomery’s past involvement in a protest against Planned Parenthood and accusations that the organization “kills children and sells their body parts,” and is responsible for the “greatest generational genocide known to man” as proof that he should step down. The organization has been actively involved with the abortion rights initiative, and is one of its top donors.
The Arizona Abortion Access Act seeks to enshrine abortion as a fundamental right in the state constitution. If passed, it would nullify the current 15-week gestational ban and restore access to the procedure up to fetal viability, considered to be between 23 and 24 weeks. The initiative would also allow abortions beyond that point if a health care provider deems one necessary to protect a woman’s life, physical or mental health. The act is widely expected to appear on the November ballot after it turned in twice the number of signatures needed for it to qualify.
The push for Montgomery to recuse himself comes just a week after another member of the Arizona Supreme Court, Justice Clint Bolick, withdrew from the case. One of the eight GOP lawmakers on the legislative panel that OK’d the inclusion of the phrase “unborn human being” in the contested summary is Bolick’s wife, Phoenix Republican state Sen. Shawnna Bolick.
And it’s not the first time Montgomery has been urged to step away from a high profile case revolving around abortion. His controversial statements against Planned Parenthood resurfaced last year, while the state Supreme Court considered whether to weigh in on a lawsuit aiming to reinstate a near-total abortion ban from 1864. Planned Parenthood Arizona was one of the main parties in the case.
An AZ Supreme Court justice openly opposes abortion. He’ll decide its legality anyway.
Initially, Montgomery refused to recuse himself, but he later chose to withdraw, saying “additional information” had come to light.
In the request for recusal, attorneys for the initiative argue that Montgomery’s opposition to Planned Parenthood and his record of using anti-abortion language shows that he can’t be an impartial judge in the case. And, they added, it’s likely that he used similar phrasing to the language that’s at the center of the legal dispute.
“There’s no question that Justice Montgomery used words like the challenged publicity pamphlet summary and the anti-abortion framing of Arizona-based anti-abortion groups,” reads the brief.
A frequently cited argument from opponents of the phrase “unborn human being” is that it mirrors the phrase “unborn child” which has been advanced by several anti-abortion organizations, making it biased and unlawful. Both the Center for Arizona Policy, which is behind many of the state’s restrictive abortion laws, and Alliance Defending Freedom, which sought to reinstate the 1864 near-total abortion ban in court, have repeatedly referenced the phrase on their websites.
According to the campaign, Montgomery should recuse himself from the case to remain consistent with his decision to step away last year, because both lawsuits involved Planned Parenthood. Arizona’s Judicial Code of Conduct advises judges to withdraw from cases in which their “impartiality might be reasonably questioned”, including when a judge holds a personal bias against a specific party. Attorneys for the initiative claimed that Arizonans would have a hard time understanding why Montgomery would recuse himself from last year’s lawsuit and not the one over the voter publicity pamphlet summary.
“As a citizen, Justice Montgomery is of course free to have these views about pro-abortion rights advocates,” they wrote. “But asking the public to believe that a judicial officer who said such things publicly will be able to fairly adjudicate a case involving whether the phrase ‘unborn human being’ is impartial strains credulity.”
Alberto Rodriguez, a spokesman for the state Supreme Court declined to say whether Montgomery would choose to recuse himself, saying only that the Court isn’t able to comment on pending cases.
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