Fairness in Arizona abortion case possible despite past comments

Howard Fischer 

Capitol Media Services

Supreme Court Justice William Montgomery said he has done or said nothing that would make him unable to fairly judge a pending lawsuit brought by Planned Parenthood Arizona over whether abortion remains legal in Arizona.

In an order he signed late Wednesday, Montgomery does not dispute that he made comments in 2015 about Planned Parenthood saying that “the profit-driven activities must end.” And he said he did post a comment on Facebook in 2017 saying “Planned Parenthood is responsible for the greatest generational genocide known to man.”

But Montgomery said none of that runs afoul of one provision of the Code of Judicial Conduct for a simple reason.

“When each of the statements were made in 2015 and 2017, I was not a member of the judiciary nor was I a candidate for judicial office,” Montgomery wrote. “Therefore, the Code of Judicial Conduct did not apply,” he said, including a rule about avoiding impropriety and the appearance of impropriety.

The justice, a former Maricopa County attorney who was appointed to the state’s high court in 2019, acknowledged there is a separate rule that requires a judge to recuse himself or herself if there is “a personal bias or prejudice concerning a party or a party’s lawyer.”

But he said that any comments he made were not specifically about Planned Parenthood Arizona — the local affiliate that is involved in the lawsuit — or its facilities. And Montgomery said he did not use his position to investigate or prosecute the organization criminally or civilly.

And all that, he said, allows him to be one of the justices deciding the future of abortion law in Arizona.


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November 2023