Bill Montgomery says his ‘strong feelings’ on abortion don’t make him biased and he won’t recuse

An Arizona Supreme Court Justice who once accused Planned Parenthood of committing genocide has refused to recuse himself from a case that will decide whether “unborn human being” is used to describe the state’s abortion rights initiative in an election information pamphlet sent to every voter in the state. 

“My responsibility to perform my duties with honor and integrity and with fidelity to my oath of office is paramount to any opinion or feeling about any issue that may come before the Court, including this one,” Justice Bill Montgomery wrote. 

Montgomery’s order comes in response to a request from backers of the Arizona Abortion Access Act that he step away from a case involving the initiative, writing that his record of anti-abortion comments undermines his ability to be impartial. 

“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,” wrote attorneys for the campaign behind the initiative. 

Last year, while the Arizona Supreme Court considered taking on a lawsuit on whether to revive a near-total abortion ban from 1864 in which Planned Parenthood was one of the main litigants, statements made by Montgomery on social media and at a protest in front of organization’s headquarters in Arizona resurfaced. In them, he accused the organization of the “greatest generational genocide known to man” and “(killing) children and (selling) their body parts.”

An AZ Supreme Court justice openly opposes abortion. He’ll decide its legality anyway.

After public backlash, Montgomery eventually chose to recuse himself from the case, though he initially stated that he would not. 

Attorneys for the abortion rights measure argued that Montgomery’s anti-abortion stance and his criticism of Planned Parenthood are relevant to a new lawsuit launched by the campaign over a description of the initiative set to be included in a voter information pamphlet. The campaign is aiming to convince the court that a legislative panel controlled by anti-abortion Republicans violated state law when it voted to include the phrase “unborn human being” in the first sentence of a summary of the initiative that will be sent to voters before the November election. 

Arizona law mandates that lawmakers craft “impartial” summaries.  

In his order, Montgomery dismissed concerns that his impartiality is compromised, saying that previous case law has established that judges can have “strong feelings” about litigation, but that doesn’t necessarily mean it makes them biased. And, he added, Planned Parenthood isn’t directly involved in the case over the publicity pamphlet description, nor is the legal question at stake the same. 

“This matter involves different parties and different issues,” Montgomery wrote. 

While Planned Parenthood isn’t a litigant in the case, it is one of the top donors to the plaintiff, and its Arizona branch is part of a coalition of reproductive rights groups that make up the Arizona for Abortion Access campaign.

Attorneys for the abortion rights proposal urged Montgomery to withdraw from the case to remain consistent with last year’s recusal. But Montgomery disagreed with the premise that his previous recusal should inform his future decisions. He noted that he rejected last year’s request to recuse himself, only opting to step away voluntarily after “additional information” came to light. 

To date, he has not clarified what that information is. 

On top of that, he added, existing case law has maintained that judges must base their recusals on outside evidence, not past decisions. 

In their request for Montgomery’s recusal, attorneys also argued that his anti-abortion stance indicates he has likely used language that mirrors that found in the contested voter publicity pamphlet, putting into question whether he can fairly rule on its legality. In their efforts to convince the courts that “unborn human being” is a politicized phrase, attorneys have frequently pointed to its similarity to language employed by anti-abortion groups in phrases like “unborn child.”

Montgomery waved away that concern as speculative and not grounded in any evidence. 

Montgomery’s refusal to step away from the case follows a decision from a fellow state Supreme Court justice to withdraw. Justice Clint Bolick, whose wife, Shawnna Bolick, is one of the eight Republican lawmakers that voted to include the phrase “unborn human being” in the description of the abortion rights measure, said he would recuse himself from the case last week. 

Montgomery’s rejection can’t be appealed. 

Dawn Penich, a spokeswoman for the Arizona for Abortion Access Campaign criticized Montgomery’s decision, but said the group looks forward to winning the case at the high court just as it did in a lower court. Last month, a Maricopa County Superior Court judge ordered lawmakers to remove the phrase “unborn human being” from the summary, writing that it is too “packed with emotional and partisan meaning” to comply with state law. 

In an emailed statement, Penich added that Montgomery’s refusal to step away from the case reflects poorly on the state’s judicial code of conduct.

“Justice Montgomery didn’t deny making any of the inflammatory statements we identified, including referring to reproductive health care like abortion as ‘atrocities’ and ‘genocide,’ claiming health care providers ‘kill children and sell their body parts’ and promising abortion rights advocates 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,’” she said. “Instead, he took less than 24 hours to deny our motion for recusal by saying little more than ‘trust me.’ We think the Code of Judicial Conduct requires more than that and are disappointed, but we will stay vigilant and hold him to his promise to be impartial.” 

The Arizona Code of Judicial Conduct advises judges to recuse themselves from cases in which their “impartiality might be reasonably questioned,” including when a judge holds a personal bias against a party in the case.