Supporters of a 2011 Arizona ban on race- and gender-based abortions want a federal appeals court to rule that a woman's right to an abortion can be trumped because of the reason she wants it.
Attorney Teresa Collett acknowledged federal courts have generally slapped down efforts by states to outlaw the procedure entirely prior to viability of a fetus. But in legal papers filed Tuesday, Collett told judges of the 9th U.S. Circuit Court of Appeals state lawmakers had a legal right to determine that some reasons for terminating a pregnancy are improper and should be outlawed — including abortion a fetus because of its race or gender.
Such a ruling would set broad new precedents and give lawmakers more license to restrict — and in some cases outlaw — the procedure.
The 2011 law makes it a felony, punishable by up to seven years in prison, for a doctor to terminate a pregnancy “knowing that the abortion is sought based on the sex or race of the child or the race of the parent of that child.”
There is no record of anyone having been charged under the law.
The National Association for the Advancement of Colored People, working with the National Asian Pacific Women's Forum, sued last year to have the law declared unconstitutional.
In seeking to void the law, Monica Ennis, past president of the Arizona Black Nurses Association and a member of the NAACP called the statute “an insult to the intelligence of African-American and Asian women.” Challengers also cited comments by a sponsor of the law that Asian women abort girls because they prefer boys, and that black women are more likely to be talked into terminating a pregnancy.
But U.S. District Court Judge David Campbell threw the case out, saying they have no legal right to challenge the law. He said there is nothing in the claim that shows any individual has suffered a personal injury because of what the Legislature enacted, beyond psychological consequences.
The groups now have taken their case to the 9th Circuit, arguing that Arizona lawmakers acted “with discriminatory intent” gives them a right to sue. Attorneys for the state are limiting their defense of the law that narrow issue of lack of harm to anyone.
Collett, however, wants to argue the merits of the law.
She said the United States has a “long and unfortunate history of sex discrimination” and that sex-selection abortion “is often an expression of the same tragic and costly devaluing of women.”
And Collett said a ban on race-based abortion protects human beings “from racially-motivated termination of their lives prior to birth.” She also cited statistics showing that 7.3 percent of all abortions performed in Arizona in 2009 were to African Americans despite the fact they comprise only 3.9 percent of the state's population.
That, she said, means lawmakers can legally protect unborn children based on their characteristics.
For example, she said homeowners generally have a right to sell their property, but Collett said courts have upheld laws which preclude a homeowner from making a decision based on the race of the buyer.
The same is true in employment: While a boss can fire a worker for no reason at all, he cannot dismiss someone based solely on a belief that women are inferior.
Collett said the same logic should apply to abortions.
Her legal filings also could undermine claims by challengers that lawmakers acted out of racial bias: Her clients include two black pro-life groups and a niece of slain civil rights leader Martin Luther King Jr.
In pushing the legislation, Rep. Steve Montenegro, R-Litchfield Park, also cited concerns that blacks have a higher abortion rate than other races, at one point calling those who perform such procedures “the people behind genocides.”
No date has been set for a hearing at the appellate court.