By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Supreme Court Justice Clint Bolick has taken himself off the case of whether the Legislative Council — a panel that includes his wife, Shawnna — acted improperly in using the words “unborn human being” in a description of an abortion ballot measure.

The move was in a footnote in a scheduling order issued by the court Wednesday. That order provided no reason.

But his wife is one of the 11 members of the council being sued over the summary it approved last month for Proposition 139.

It’s even more narrow than that.

The verbiage was approved by a 8-7 vote, with only the Republicans on the panel — including Sen. Bolick of Phoenix — voting in favor. In fact, the Democratic lawmakers on the council filed their own legal briefs arguing the language is biased and that it should be stricken.

Maricopa County Superior Court Judge Christopher Whitten ruled last month the council acted illegally, saying the phrase “is 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.’’ He ordered the council to remove it.

GOP lawmakers on the council disagreed and filed an appeal, sending the case to the Supreme Court.

While Justice Bolick would not discuss his reasoning, his office released a statement about how he looks at whether to recuse himself from any case. That, it said, includes his wife’s involvement as a party to this litigation.

But the statement said it’s not limited to that.

“He will recuse in any challenge to the constitutionality of a law in which he is aware that his wife was a prime sponsor or prominently identified as a supporter or opponent,” the statement reads. “Otherwise, he will not.”

There was no immediate response to Bolick’s decision from either House Speaker Ben Toma, who chairs the council, or Senate President Warren Petersen.

Dawn Penich, spokeswoman for Arizona for Abortion Access, which is challenging the council’s decision, confirmed her organization had not asked for Bolick to step aside. But she said the group behind Proposition 139 was pleased.

“Like anyone else, we want to be able to trust that our arguments are heard in a fair way by an unbiased court, both in this case and the future,’’ she said.

That issue of what happens in the future goes to the issue of another case involving Proposition 139 likely to wind up in front of the high court.
Arizona Right to Life is trying to block the measure to put a right to abortion in the state constitution from even appearing on the November ballot. Its attorneys argue that the wording of the initiative as well as a summary prepared by proponents is too legally flawed to allow it to go to voters.

That case, however, is still before Maricopa County Superior Court Judge Melissa Julian. But whatever she decides is virtually certain to be appealed to the Supreme Court.

What’s in Prop. 139 never was subject to legislative action, having been placed on the ballot through a petition drive by Arizona for Abortion Access. It submitted more than 820,000 signatures on petitions, more than twice as many as need to be found valid.

But there is a link of sorts to the Legislature — and Shawnna Bolick — beyond the wording of the summary.

Foes of the measure are urging voters to defeat the initiative. That would leave the law the way it is now: allowing abortions until the 15th week of pregnancy.

Bolick, a member of the House at that time, co-sponsored that 2022 law about the 15-week limit.

It was crafted and approved before the U.S. Supreme Court overturned Roe v. Wade and its constitutional right to abortion. The idea was to have a law on the books for something less than what Roe allowed if and when the justices finally decided — as they eventually did — that the question of when abortion should no longer be legal should be left to the states.
That all got complicated when the Arizona Supreme Court ruled this year that an even older territorial-era law outlawing virtually all abortions superseded the more recent 15-week law that his wife had co-sponsored.

Justice Bolick voted in the majority.

The issue is even more complicated than that.

Sen. Bolick was one of two Senate Republicans who subsequently joined with Democrats to repeal the territorial-era law, allowing that 15-week limit to remain the law in Arizona.

It is that 15-week law that Proposition 139 would override in favor of a constitutional amendment allowing the procedure without state interference or restriction up until fetal viability, considered between 22 and 24 weeks. The initiative also would permit abortions beyond that in cases where the treating health care professional determines it is “necessary to protect the life or physical or mental health of the pregnant individual.’’

The senator, in explaining her vote, read a long prepared statement detailing her three pregnancies, including one of which that ended in a miscarriage. She said her point was to explain that not all pregnancies are the same.

Beyond that, Bolick said she believes that a 15-week ban is a far preferable choice for voters who will go to the polls in November to consider the more far-reaching initiative,

Chief Justice Ann Scott Timmer announced that retired Justice John Pelander will sit in his place in this case “until it is finally determined.’’
Justice Bolick’s vote to reinstate the territorial-era law has had other political fallout.

He and Justice Kathryn King, who also voted to override the 15-week law, are on the ballot this year where voters will decide whether they are entitled to a six-year term on the high court. Progress Arizona, a political action group, has launched a campaign to urge voters to turn them out of office, a move that, if successful, would allow Democratic Gov. Katie Hobbs to name their replacements on the seven-member court.

At the same time, Republican lawmakers have put Proposition 137 on the ballot to give most justices and judges life terms — at least until retirement age of 70 — without having to face regular retention elections. They crafted it in a way that if voters approve, it would be retroactive, a move that would allow Bolick and King to remain on the bench even if Arizonans vote separately to remove them.

Progress Arizona has since filed suit to knock that measure off the ballot, charging its title is illegally deceptive and violating constitutional requirements limiting such measures to a single subject.

Yavapai County Superior Court Judge John Napper, who is hearing that case, has yet to issue a ruling.

But whichever side loses is likely to seek Supreme Court review. And that, in turn, raises the question of whether Bolick, King — or, for that matter, any sitting justice — has a conflict of interest.
One option would be for Timmer to appoint retired justices, who would be unaffected by the outcome of Proposition 137, to hear and decide the case.