(UPDATE, 1:20pm: The article has been updated to reflect that state Sen. Shawnna Bolick is one of the Appellants because she is a member of the Legislative Council.)
Arizona Supreme Court Justice Clint Bolick recused himself yesterday from hearing the expedited appeal on whether the official ballot language for Prop. 139 – the abortion rights measure – should use the phrase “unborn human being” to describe what the proposed constitutional language calls a “fetus”.
The Court also set the expedited briefing schedule for the ballot language case, with all briefing to take place next week and for a subsequent decision without oral argument. (That is standard operating procedure for election appeals to the Supreme Court, especially with a ballot printing deadline looming.)
Bolick is married to one of the defendants appealing the case, and retired Justice John Pelander will take his seat on the bench (for this case).
Bolick did NOT recuse himself from the April 9 Opinion which put Arizona’s 1864 complete abortion ban into place. That controversial decision was handed down two months after his wife, state Sen. Shawnna Bolick, led many of her Republican colleagues to issue a Legislative Proclamation officially urging Arizonans not to sign petitions to put the abortion measure onto this November’s ballot.
Although the checking and challenging process is continuing, the proposed constitutional amendment protecting all abortions before fetal viability and require a healthcare professional to determine that a post-viability abortion is necessary to protect the potential mother’s health turned in more than 800,000 signatures, and is now dubbed Prop. 139.
The Republican-controlled Legislative Council decided to describe the fetus as an “unborn human being” in the Official Description of Prop. 139, and the proponents took the matter to Court.
Last week, Superior Court Judge Christopher Whitten quickly determined that the description was not “an impartial analysis of the provisions” and ordered a summary “that replaces the phrase with a neutral term.” Bolick is one of the six Republican members of the Leg Council; together with House Speaker and Senate President Warren Petersen, the Republicans appealed last week’s decision.
While Justice Bolick has now recused himself, there has been no indication that Justice Bill Montgomery also plans to.
Montgomery was the only Justice to recuse himself from April’s Planned Parenthood v Hazelrigg 1864 abortion ban case. He did so only under pressure from Planned Parenthood for incendiary comments he had made when he was Maricopa County Attorney. (He accused Planned Parenthood of “atrocities” and “genocide”.
Last year, Planned Parenthood filed a Motion for Recusal, which Justice Montgomery initially denied in a lengthy written Order. However, one week later, he reversed himself in light of information that he had also led an investigation into some discovered Planned Parenthood files.
Planned Parenthood is one of the founding members of the Arizona for Abortion Access coalition that has put forward Prop. 139.
Although he could again change his mind, it may be difficult for Justice Montgomery to distinguish his November recusal from a failure to recuse in this expedited case involving the same party. To date, the abortion rights coalition has not filed a new Motion for Recusal in this case.
Disclosure: This article was reported by AZ Law founder Paul Weich. Paul has been an active participant in AAA coalition member Healthcare Rising in promoting this initiative.
>
“AZ Law” includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona’s Politics on the internet.