Calling the measure racist, a coalition of rights groups filed suit Wednesday to overturn a two-year-old law banning abortion for race or gender selection.
The lawsuit, filed by the American Civil Liberties Union on behalf of the NAACP as well as the National Asian Pacific Women's Forum, asks U.S. District Court Judge Paul Rosenblatt to declare the law is an unconstitutional infringement on the right of minority women to terminate their pregnancy without being questioned about the reason why. It also seeks an order to bar both the Attorney General's Office and the Arizona Medical Board from enforcing any part of the law.
Challengers said that the 2011 law -- which they say is unique in the entire country -- was approved based on claims by Rep. Steve Montenegro, R-Litchfield Park, that the rates of abortions for black women were higher than for other groups.
Montenegro also cited evidence, much of it from Asian countries, that women there were far more likely to abort a female child than a male. That got extrapolated to questions about the practices of Asian women in Arizona even though there was no evidence presented linking abortions here to gender selection.
Monica Ennis, past president of the Arizona Black Nurses Association and member of the National Association for the Advancement of Colored People, called it "an insult to the intelligence of African-American and Asian women.''
More to the point that challengers will have to prove in court, the lawsuit charges violations of the Equal Protection Clause of the U.S. Constitution.
"Its purpose is to reduce the rate or number of black and API (Asian and Pacific Islander) women who have abortions, but not women of any other race,'' the lawsuit says. It also charges that the law is "based on racist and discriminatory stereotypes'' about both groups.
Montenegro argued that lawmakers are entitled to protect unborn children from being aborted solely because of their race or gender. And he said that the civil rights of these fetuses trumps the rights of women to terminate their pregnancies.
He acknowledged, though, that the rulings so far from the U.S. Supreme Court since the landmark 1973 ruling of Roe v. Wade have said women have an absolute right to have an abortion, at least prior to viability, without regard to a reason why. Montenegro said, though, he disagrees with that ruling.
The 2011 law makes it a felony, punishable by up to 7 years in prison, for a doctor to perform an abortion "knowing that the abortion is sought based on the sex or race of the child or the race of the parent of that child.''
To enforce the law, it requires the woman to sign an affidavit saying she is not terminating the pregnancy because of the child's sex or race. That affidavit becomes part of her medical record which can be accessed by the Arizona Medical Board and, ultimately, by prosecutors.
There is no record of anyone having been prosecuted since the measure was signed into law by Gov. Jan Brewer.
In pushing the legislation in 2011, Montenegro said there was evidence that blacks have a higher abortion rate than other races. And he said those who perform such procedures are "the people behind genocides.''
But the legal papers filed by Dan Pochoda of the American Civil Liberties Union of Arizona said there was never any evidence during hearings or floor debate of any woman in Arizona who had an abortion with the intent to reduce the number of blacks in Arizona or in the overall national population.
Similarly, challengers said that whatever the evidence from Asian countries about gender-based abortion, there was no evidence that is happening here. Anyway, they argued, most abortions in Arizona are performed before the time when the sex of the fetus can be determined.
Miriam Yeung, executive director of the National Asian Pacific American Women's Forum said the legislation is based on "offensive generalizations about our community.''
"As a result, it turns Asian-American women in Arizona into suspects,'' she said.
And ACLU staff attorney Alexa Kolbi-Molinas said black and Asian-American women have the right to make these decisions "without being cast as villains or as women who the state must monitor because they cannot be trusted to make this decision on their own.''
Montenegro called it "unfortunate'' that others would see his legislation as racist.
"We have never inferred that,'' he said. "What we're trying to do is to make sure that those kinds of things, that discrimination like that, isn't happening by allowing an abortion or at least standing by here in Arizona and even letting it get to the point where we allow an abortion to happen based on the baby's race or sex.''
And Montenegro said nothing in his legislation is based on a premise that women of any particular ethnic group are not intelligent enough to make their own decisions.
Montenegro acknowledged prior court rulings upholding a woman's right to abortion. That includes one just a week ago where the 9th U.S. Circuit Court of Appeals voided an Arizona law banning abortions at or after the 20th week of pregnancy, ruling that a woman's right to terminate her pregnancy up to the time of viability of the fetus is "unalterably clear.''
But he said this is different because there are conflicting rights at issue.
"I think civil rights and making sure we're not discriminating based on somebody's race, sex, gender, nationality, the constitutional rights we have, we're saying that those should not be infringed,'' he said.
Yeung, however, said restricting the rights of women to have an abortion is not the way to deal with the reasons that some parents might want a boy instead of a girl.
"Sex-selective practices are really a symptom of 'son preference' and really a symptom of gender inequity,'' she said. Yeung said if lawmakers are concerned about inequity there are better ways to address the root causes of the issue, like requiring fair pay.
"This bill is not that,'' she said.
Montenegro said Arizona lawmakers are entitled to make these kinds of decisions, citing the bipartisan approval of the measure.
The 35-20 House approval came with two Democrats in support: Albert Hale of Ganado and Catherine Miranda of Phoenix. But two Republicans, Cecil Ash of Mesa and Russ Jones of Yuma, voted against the measure.
Senate approval came on a 21-5 vote strictly along party lines, though four Democrats were absent.
Pochoda acknowledged the lawsuit comes more than two years after the measure was signed by the governor. But he said the ACLU has had its plate full with other issues, both in challenges to other abortion laws and its role in suing the Maricopa County Sheriff's Department on charges of racial discrimination.