By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — The Arizona Supreme Court will decide whether virtually all abortions are illegal in Arizona with only six justices.

And that leads to the possibility of a 3-3 tie on the issue.

What makes that important is that a tie vote — if it winds up that way — means the decision of the Court of Appeals prevails. And that would leave in place a 2022 law that allows doctors to terminate pregnancies through 15 weeks versus the near outright ban that dates to territorial days.

The unusual situation follows the decision by Justice William Montgomery to recuse himself from the case.

Montgomery said a week ago he made that decision after reviewing what is required of a judge in the Arizona Code of Judicial Conduct, which spells outs situations in which a judge’s impartiality might be questioned. He did not disclose specifics.
It is not unusual for a justice to step aside.

Often these are cases where the justice has a connection with the case, like a former prosecutor whose office worked on getting a conviction, or someone who comes from a law firm that was handling a civil case while that person was still employed there.

It also occurs when a justice knows the parties involved.

The normal procedure, according to court spokesman Alberto Rodriguez, is for the chief justice — in this case, Robert Brutinel — to invite a retired justice to sit in. Alternately, Brutinel could ask Garye Vasquez, who is the chief justice from Division 2 of the Court of Appeals that heard the case, to select someone from that court at random to fill the slot.

But Rodriguez said Brutinel has decided not to do that in this case. Rodriguez said Brutinel has provided no reason for that decision.

All this comes as the court is set to hear arguments this coming Tuesday on what rights women have going forward over their ability to terminate a pregnancy.

In a prepared statement, Jake Warner of the Alliance Defending Freedom, which is trying to overturn the Court of Appeals decision and have the territorial-era law reinstated, said he respects the court’s decision to hear the case with just six justices.

“We remain hopeful that the court will uphold Arizona’s law affirming that life is a human right,” Warner said.

There was no immediate response from Planned Parenthood Arizona, which wants the justices to uphold the appellate court ruling allowing abortions to be performed in the first 15 weeks of pregnancy — and which would benefit by a tie vote among the six justices hearing the case.

There is no simple way to handicap how the remaining six justices might vote.
A majority were appointed by Doug Ducey when he was governor. And Ducey had been an ardent abortion foe.

“I am proud that Arizona has been ranked the most pro-life state in the country,” he said in a 2022 post on Twitter, now X, the day the U.S. Supreme Court overturned Roe v. Wade and its conclusion that women have a constitutional right to abortion. “Here, we will continue to cherish life and protect it in every way possible.’’

But Ducey, in an interview last year before the Supreme Court ruling, said he believed the 15-week law he had signed would take precedence over the territorial-era law even if the 1973 Roe v. Wade ruling were overturned.

“The law of the land today in Arizona is the 15-weeks’ law,” he told Capitol Media Services. “And that will remain law,” Ducey said, regardless of what the U.S. Supreme Court does.

Ducey did not dispute that the territorial-era law remains on the books and never was repealed. But he said that didn’t matter.

“This law was signed this year,” Ducey said. “I think that the law you signed in 2022 supersedes 1973.”

All this is the result of that decision by the U.S. Supreme Court last year to overturn Roe v. Wade. That left the decision on abortions to each state.

Pima County Superior Court Judge Kellie Johnson, acting on a petition by then-Attorney General Mark Brnovich, ruled in September 2022 that the end of Roe v. Wade meant that a territorial-era ban on most abortions is once again in effect.

That law, which never was repealed by lawmakers after the 1973 ruling, makes it a crime to perform abortions except to save the life of the mother. Doctors could face up to five years in state prison.

But Planned Parenthood Arizona, along with Pima County Attorney Laura Conover, pointed out that 2022 state law allowing the procedure through the 15th week of pregnancy.

That law was approved by the Republican-controlled Legislature in anticipation that the U.S. Supreme Court would simply uphold a nearly identical law in Mississippi and not scrap Roe v. Wade entirely.

A three-judge panel of the Court of Appeals, in an opinion late last year authored by Vasquez, acknowledged lawmakers never repealed the territorial-era law. But they said that law and the new one can be “harmonized” so that they do not conflict.

That brings the case to the Supreme Court to sort out.

Planned Parenthood Arizona had asked Montgomery to recuse himself based on statements he had made while Maricopa County attorney, including one that said the national organization “is responsible for the greatest generational genocide known to man.”

He initially refused, saying nothing he said before being appointed to the high court by Ducey in 2019 reflects on his ability to judge the case fairly.

But Montgomery reversed course less than two weeks later, leaving the court with just six justices.

The political and legal landscape also has changed in the past year.

Brnovich, a Republican, left office at the end of last year when his term was up. He was replaced by Democrat Kris Mayes, who has said she believes, regardless of the decision to overturn Roe v. Wade, that women can terminate a pregnancy because there is a provision of the Arizona Constitution guaranteeing a right to privacy.

More to the point, Mayes refused to defend the territorial-era law, siding with Planned Parenthood and Conover.

That leaves defending that law up to Dr. Eric Hazelrigg, who the court appointed to represent the interests of unborn children.

He is the medical director of the Crisis Pregnancy Center, which does not provide abortions. And Hazelrigg is represented by the Scottsdale-based Alliance Defending Freedom which opposes abortion.

The reality of what can happen with a tie vote played out earlier this year in Iowa.

The state Supreme Court was considering a bid by Gov. Kim Reynolds to overturn a decision by a trial judge to void a law he had signed prohibiting abortions after cardiac activity can be detected. That generally occurs around six weeks, and often before a woman knows she is pregnant.

But the 3-3 tie by the court left that lower court ruling intact, meaning abortion remains legal in Iowa through the 20th week of pregnancy.