Arizonans will get the chance to vote to expand abortion access in the state in November. The Arizona state Supreme Court ruled unanimously on Tuesday to allow the Arizona Abortion Access Act to appear on the ballot — rejecting a bid by abortion opponents to get it thrown off.
Arizona Right to Life challenged the initiative on the grounds that it was overly broad and that the description of it on the petition used by signature-gatherers was misleading to voters. But the justices all disagreed. The initiative will appear on the ballot as Proposition 139.
The decision came as the court is under a lot of public and political scrutiny following months of high stakes decision on abortion that began when the court ruled to revive a 1964 near-total abortion ban in April of this year.
But, Barbara Atwood says the decision is further proof that the court is not politically biased. Atwood is law professor emerita at University of Arizona. The Show spoke with her earlier more about it — beginning with the unanimous nature of the decision and whether or not that was surprising to her.
Full conversation
BARBARA ATWOOD: It was not surprising actually. I think what all seven justices were of the view that their role was pretty limited in assessing the validity of these, of the description and the ballot measure itself. I think they much prefer that it be in the political arena that that's something for the people to decide.
LAUREN GILGER: So let's talk about where politics and the state Supreme Court sort of intersect a similar conversation to what's happening on the federal level right now. Tell us about the makeup of the Supreme Court itself. It's come under increasing scrutiny since it ruled back in April to revive an 1864 near total abortion ban that kind of led us down this road. It outraged a lot of people in the state.
Supreme Court justices in Arizona are appointed by the governor and every justice on the court today was appointed by a Republican governor. Is that right?
ATWOOD: That is right. Two of the justices, Chief Justice Ann Timmer and the former Chief Justice Brutinel were appointed by Governor Jan Brewer, and the rest of the justices were appointed by Doug Ducey, and it was under Doug Ducey administration that the court was expanded from 5 to 7, which was a controversial move itself. So all justices were appointed by Republican governors. That does not mean that they all agree or that they are trying to pursue political ends. I actually respect the members of the court deeply, and I think they are honest when they say what we're doing in this decision, the decision yesterday and what they did in April, was a result of an attempt at analyzing legislative intent and not a result of the justices’ political or moral beliefs.
GILGER: I want to talk about another case that's been in the public discussion about this in recent weeks here. Because they made another decision recently, allowing the state Legislature’s suggested language on this abortion measure to stay in the description of the measure that will go to voters. It uses the phrase “unborn human being.” This was challenged saying that it's political language, but the State Supreme Court overturned the lower court ruling actually in this case and said that they think it's fair and should stay.
What do you make of that decision by the court, especially given, you know, the decision that they made in April that was so controversial.
ATWOOD: Yes, that decision was actually assessing the validity of the brochure that the Arizona Legislative Council, this group of legislators, has come up with that the voters will receive. So it's actually quite important. It's a descriptive measure, but five members of the Arizona Supreme Court viewed it as acceptable and not unduly partisan.
And I think one of the most helpful arguments for the legislative council, the folks who came up with this language. is that that very term unborn human being is used in existing Arizona law. The now, well known 15-week law uses that term on the other side. Of course, The arguments were that fetus is, is the much more commonly used term and is the medical term. And, and is, of course, the term used in the proposed constitutional amendment.
There were two dissenters, two justices including that. Now, Chief Justice Ann Timmer disagreed and would have affirmed the lower court saying this is loaded and partisan and it should not be used. But of course, it's not the language that appears anywhere in the proposed constitutional amendment.
GILGER: Right. Right. OK. So that's two decisions right on this front. And then we get the decision yesterday. That kind of goes the other way. At least if you're looking at it through a political lens and unanimous from the court saying that this measure should go to voters that it's fair. It didn't break these laws. I wonder what you think the totality of these cases in front of the court in the last several months here says about the court itself. Do you think it shows a biased court?
ATWOOD: I do not believe that it shows a biased court. I think it shows a divided court. It shows a court struggling with some uneven and sometimes ambiguous legislative directions and particularly going back to the decision in April that was a 4-2 decision with Justice Montgomery having recused. But that decision I was rereading it today and you can see the justices actually struggling to make sense of what the legislature had done. that of course, produced a huge outcry that the court was biased and had voted its political or moral beliefs that I didn't, I didn't see it doing that then and I, I haven't changed my mind.
I think the approving of the legislative council's terminology of unborn human being last week also angered some people who viewed it as, as very loaded language that might hurt the prospect of the constitutional amendment being approved by the voters. Because that language is in our statutes, you know, so that there's also arguments on both sides, although it was a split court. And then yesterday's decision shows the court, I think looking to stay out of the political arena and saying, look at the petition itself, that is the 200-word description is accurate or accurate enough and the impact of that proposed constitutional amendment, something that belongs in the political arena. So I think the three decisions together show a court struggling, but not one that's trying to accomplish some kind of political.
GILGER: And I want to ask you about recusals which have been a part of this. And you've mentioned a couple of times here. There have been questions about one justice, in particular, former Maricopa County Attorney Bill Montgomery, who has said some very inflammatory things about abortion rights in his past political career. And he did recuse himself back in April as you mentioned. He did not this time despite calls for it. What does that conversation, do you think, to trust in the court? And in fact, all of this, what do you think it does to the public's trust in the court?
ATWOOD: Well, I think Justice Montgomery did recuse when Planned Parenthood was a direct party in the litigation back in April. And because of the statements he had made prior to becoming a justice regarding Planned Parenthood's work, and that I think that was a very, very appropriate and necessary recusal in the couple of recent cases here that the court was dealing with, I know people were calling for his recusal. That is of course, always gonna be up to the justice himself or herself.
And apparently Justice Montgomery felt that he could rule impartially despite some of the comments he had made earlier. So he ended up, of course, not recusing himself and participating in the unanimous decision yesterday of keeping the ballot provision on the ballot. And that maybe shows something about his ability to separate himself from his prior comments and work as Maricopa County attorney.
GILGER: Let me, let me ask you lastly here about the broader picture. There are efforts now at reform, right? Not just on the federal level, but here on the local level as well, there's an effort on the ballot to change the rules and allow judges to serve essentially life terms, not to be up to for retention votes every several years.
There are also efforts on the left to oust two of the justices who are up for regent retention votes from the state Supreme court, two who voted to revive the 1864 near total abortion ban back in April. Do you think the court needs reforms? Do you think the public should trust it?
ATWOOD: I think that the merit selection process that's been in place for a number of decades in Arizona and has actually been a model for a lot of other states is definitely something that we should keep. I think that the ballot initiative that is designed to remove the standard retention vote, the participation of the public and retaining these justices is not something that should be supported. I definitely and deeply hope that those justices are retained.
I am not a fan of voting out justices based on their participation in a single decision. And I think again, as I said earlier, I think the justices are trying to do their job and that we should respect that. And our disagreement with the particular outcome is not something that should be the basis of a vote to throw them off the court.
