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After Roe v. Wade, local courts have an outsized role in deciding the future of abortion

The future of abortion in Arizona lies largely in the hands of the state Supreme Court. They will hear a case in December that will determine whether a current 15-week abortion ban should remain state law, or if an 1864 near-total ban on abortions should take precedence.

It’s worth noting this all could be moot if voters approve a potential ballot initiative next fall that would enshrine abortion rights in state law. But, the case heading to our state’s seven justices reflects the outsized role of local courts in determining abortion access since Roe v. Wade was overturned.

All of this was at the center of an investigation that came out last month from independent news outlet The 19th and the Arizona Mirror, questioning the ability of Arizona Supreme Court Justice — and former Republican Maricopa County Attorney — Bill Montgomery. The story, by reporter Shefali Luthra, found old social media posts where Montgomery called Planned Parenthood responsible for “the greatest genocide known to man.”

Now, Planned Parenthood is a party in that case heading to the state Supreme Court — and is formally requesting that Montgomery step down from the case. He says he will not.

Luthra spoke with The Show more about the story, and the role of the courts in determining the future of abortion today.

SHEFALI LUTHRA: We've been following this case for a while because what's happening in Arizona is just so interesting and such a striking example of the role that state supreme courts play and the real unpredictability in terms of what is legal in a post-Roe landscape. Arizona has really been this like striking poster case where we saw legality swing back and forth between this 15 week ban and a mere total ban based on the individual decisions of state courts. And and that just makes this case much, much more important and it makes the State Supreme Court especially important since they have agreed to take on the case and you know, doing due diligence, doing reporting coming across the the remarks that that Justice Montgomery had made, it felt like a really important story in and of itself to think about the role that individual members of the state judiciary now play in determining abortion rights. But also it allows us to think in a bigger picture way about just how important state Supreme Courts have become, not only in Arizona, but around the country where states are litigating what is legal in terms of abortion.

LAUREN GILGER: Right, right. And so much of this, as you say is happening at that level, what did experts tell you in your reporting here about the ethics involved here and how common or uncommon this kind of situation with Bill Montgomery may be?

LUTHRA: I think this is really interesting. I spoke to a variety of ethicists about this and, and they made several really important points. The first is that it is impossible realistically to have state Supreme Courts where people have not weighed in on abortion, right. It is just such a potent, widespread issue and especially in the universe we live in now. Like there's just, it's not realistic to imagine people wouldn't have said anything. But what folks were really struck by was not, not just the remarks about abortion, but the remarks about Planned Parenthood specifically and the idea that Planned Parenthood is this party to the case. And that Justice Montgomery said in that deleted Facebook post that they are responsible for the greatest genocide known to men. That's where this case feels different from potentially other cases where maybe someone just, you know, had strong views about the issue. And that's where there is a real question about what is the line in terms of what someone could perceive as biased, as objectivity and has it been cross?

GILGER: So the line to you that needs to be looked at here is about the specific comment about a specific organization that ends up being involved in this specific case. 

LUTHRA: That is what people highlighted to me when I showed this to them because there are just so many cases where people have different kinds of ties to abortion. But when, when we see something, this granular, it changes things.

GILGER: I want to talk with you for the next few minutes. Just about the broader picture, as you said about how much, first of all courts are involved in these decisions that are so consequential in terms of abortion. Now that Roe v. Wade has been overturned, are you looking at cases like this and Supreme Courts like this around the country? Because the judiciary just ends up being so involved in this state by state.

LUTHRA: A really interesting example in another state that, that I think of often when I think about Arizona is Florida where the state Supreme Court court heard arguments about the 15-week ban that passed there, and they're deciding whether that law would violate the state's constitution, which in 1989 was interpreted to protect abortion rights. And a justice on that court is married to one of the lawmakers who sponsored anti-abortion legislation. That same justice is a former Congress member who put forth anti-abortion bills while in Washington, D.C., in the '90s. And many observers in Florida have faced this and sort of made a similar conversation happen there. Like when you have not only just you know, views about abortion but specific connections to policy and policy making, does that change how you can relate to this case? And in that case as well the implications are just tremendous because this court will decide not only if this 15-week ban stays in effect, but if it does what that means for other more restrictive laws that the state has passed, such as a six-week cut-off for abortion.

GILGER: Interesting. So lots of cases like this, the other side of the story here in terms of Roe and the judiciary, right is just the, the public trust in the Supreme Court at a federal level, of course, but then just courts in general, like the judicial branch in general, public trust has, has really disintegrated in this in recent years for many reasons. But also because and since the over turning of Roe v. Wade, have you seen that happen at a broader scale, and do you see these questions because of this?

LUTHRA: I think these are really important issues to, to consider together and to your point, the polling is pretty unequivocal that confidence in the Supreme Court in particular is at a record low. But there also is data showing that trust in state courts is declining. And that's really interesting to me because I mean, state courts  are something that people usually have much exposure to. They don't think about them very much because they view them often as quite remote from their day-to-day lives. And the idea that they are changing their minds about them, especially after this, you know, major legal constitutional change that has given state Supreme Courts so much more influence and power. That's really striking and that's really important and interesting, especially because in many states, Arizona included, voters play a role in terms of whether state Supreme Courts stay on the bench.

GILGER: Yeah, all right. We'll leave it there for now. Shefali Luthra, a health reporter for the 19th, joining us to talk more about these issues. Shefali, thank you so much for coming on as always, I appreciate it.

LUTHRA: Thank you for having me.

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Lauren Gilger, host of KJZZ's The Show, is an award-winning journalist whose work has impacted communities large and small, exposing injustices and giving a voice to the voiceless and marginalized.