By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Arizonans are entitled to vote in November whether they want a right to abortion put into the state constitution, a judge concluded late Monday.

Maricopa County Superior Court Judge Melissa Julian rejected a series of claims by Arizona Right to Life that signers of the petition to put Proposition 139 on the ballot may have been misled.

In an extensive ruling Julian rejected claims that the description of the initiative, which has to be attached to all petitions, was worded in a way that some people signed it not knowing what was in the measure.

And that, attorneys for the challengers argued, meant there is no way to know how many of the more than 820,000 individuals who signed to put it on the ballot might have made a different choice if they had other information.

Monday’s decision does not end the legal dispute. The last word will belong to the Arizona Supreme Court.

But who on that court will get to hear those arguments is now up in the air. Abortion rights advocates on Monday asked Supreme Court Justice William Montgomery to step away from another case involving Proposition 139. That case, already before the court, is over whether the wording of the description of the measure prepared by the Republican-controlled Legislative Council which uses the words “unborn human being” meets the legal requirement for an “impartial” analysis.

Attorney Andrew Gaona said there is more than ample reason to believe Montgomery cannot be unbiased about the whole issue of abortion and those who are involved with Arizona for Abortion Access to get the measure approved.

What brings that into question, he said, are statements and social media posts he made while he was Maricopa County attorney.

In one, Montgomery called Planned Parenthood “responsible for the greatest generational genocide known to man.”

He also said Planned Parenthood “encourages the very behavior that leads to STDs (sexually transmitted diseases) and abortions” and the organization’s “business model” relies on abortions.

What makes all that relevant is the Planned Parenthood Action Fund, the lobbying arm of the organization, is the No. 2 source of funds for the Arizona for Abortion Access initiative, contributing more than $2.2 million of the $23.3 million collected to date. Only Service Employees International Union has put in more at nearly $4.4 million.

Hanging in the balance is how the initiative will be described to the voters.

Proposition 139 would put a right to abortion in the Arizona Constitution. It would prohibit any legislative interference against terminating a pregnancy up until fetal viability, about 22 to 24 weeks. And it would sharply curtail restrictions beyond that point as long as the procedure was performed to save a woman’s life or physical or mental health.

The council’s mandate is to craft an “impartial” summary that goes into brochures mailed to the homes of all 4.1 million registered voters.

Maricopa County Superior Court Judge Christopher Whitten ruled last month that using the phrase “unborn human being” in that summary is not what the law requires. He called it “packed with emotional and partisan meaning both for those who oppose abortion and for those who endorse a woman’s right to choose whether to have an abortion.”

Now the case goes to the Supreme Court which is where the question of Montgomery’s participation arises.

Gaona said there is more than ample reason to ask Montgomery to step aside. He said rules governing the conduct of judges require they disqualify themselves “in any proceeding in which the judge’s impartiality might reasonably be questioned.”

Gaona said that doesn’t mean caving in to the fears of “the most darkly suspicious member of the public.” But he said the standard is “whether an objective, disinterested observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt that justice would be done in the case.”

That, said Gaona, is clearly the case here.

He pointed out Montgomery’s comments became an issue earlier this year when the Supreme Court was deciding whether an 1864 law outlawing virtually all abortions took precedence over a 2022 statute allowing the procedure until 15 weeks.

“Despite his public statements that Planned Parenthood ‘kills children and sells their body parts’ and is ‘responsible for the greatest generational genocide known to man,’ he initially refused to recuse himself,” Gaona said, even though Planned Parenthood actually was a party to that case.

Only later, Gaona said, did Montgomery change his mind, citing “additional information” that the justice never detailed.

“That recusal now speaks volumes,” Gaona said.

Dawn Penich, spokeswoman for Arizona for Abortion Rights, called that second statement “cryptic” as he never disclosed what was new.

“We have no reason to believe those factors aren’t still at play today,” she said in a statement.

Gaona noted this case turns on whether the justices decide the phrase “unborn human being” in impartial and free from advocacy.

“Justice Montgomery’s 2015 declaration that Planned Parenthood ‘kills children’ when it provides abortion care to pregnant people would also raise significant doubt that justice would be done in the mind of a disinterested observer,” Gaona said.

Finally, he also cited statements that Montgomery made in 2015 at an anti-abortion protests held outside Planned Parenthood offices. There, Gaona said, Montgomery made comments — presumably to Planned Parenthood supporters — that “the voice of the Holy Spirit will whisper in your soul” and “you will not be at rest until you reconcile with the truth.”

“Justice Montgomery is of course free to have these views about pro-abortion rights advocates,” Gaona said. “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.”

Montgomery, thorough a court spokesman, declined to comment.

Strictly speaking, this is his decision alone to make. There is no procedure for other justices to disqualify him.

Justice Clint Bolick already has recused himself from those pending arguments about the wording of the ballot summary, albeit for a different reason.

His wife, Shawnna, is a state senator and member of the Legislative Council who voted for the wording at issue. And that also makes her a named defendant in the lawsuit filed by Arizona for Abortion Rights.

Chief Justice Ann Scott Timmer tapped retired Justice John Pelander to replace Bolick in this case “until it is finally determined.”