Civil rights groups asked a federal appeals court Monday to let them try to block an Arizona law banning abortions based on race or gender because the statute was passed because of racial stereotypes of – and hostility to – blacks and Asian-Americans.
The groups, represented by the American Civil Liberties Union, acknowledged their members are in no danger of being prosecuted under the law. That 2011 measure applies only to doctors, making it a felony for a doctor to perform an abortion if he or she knows the reason it is being sought is the race or gender of the child.
But Alexa Kolbi-Molinas said that members of the two groups -- the NAACP and the National Asian-Pacific American Women's Forum -- have been harmed nonetheless by the law because they have been “personally and blatantly stereotyped by their own government because of their race.” She said they “must endure the humiliation of living under a government that view them as a threat to American values simply by virtue of alleged character flaws possessed by persons of their race.”
Hanging in the balance is that law which both sides concede has not yet been enforced, but challengers hope to have a court enjoin any possible enforcement now while they seek to have it removed permanently from the books.
To this point, they have failed.
Last year, U.S. District Court Judge David Campbell threw out the case.
He noted there has been no claim by any woman that she has been denied an abortion under the law, nor any doctor prosecuted for a gender- or race-based abortion.
More to the point, Campbell said nothing in the claim shows that any individual has suffered a personal injury because of what the Legislature enacted, beyond psychological consequences. And that, he said, means they have no right to challenge the law.
His ruling does not mean the law is constitutional. That remains an open question until a woman who is denied an abortion under the law, and therefore is directly affected, challenges it. A doctor prosecuted for performing such an abortion also would have legal standing.
Kolbi-Molinas, in Monday's filings with the 9th U.S. Circuit Court of Appeals, argued that her clients also have been injured and therefore have a right to sue.
She said the language used by supporters of the law in pushing for its passage, show the measure was passed on “explicit reliance on the false and invidious stereotypes about, and animus toward, black and Asian Pacific Islander women.” Kolbi-Molinas told Capitol Media Services the motives of the sponsors – and the words they used – gives her clients the legal right to claim they have been harmed.
“The state in no way questions or challenges that any of this sort of rhetoric was used in the legislative history or that it is offensive and stigmatizing and stereotyping of the plaintiffs,” she said. And that, Kolbi-Molinas said, is all her clients need to show to challenge the law.
That “rhetoric” includes various claims by Rep. Steve Montenegro, R-Litchfield Park, sponsor of the measure.
During floor debate, Montenegro called those who perform abortions based on gender or race “the people behind genocides.” And Montenegro said he has information “that there are targeted communities that the abortion industry targets.”
As proof, Montenegro said there is a higher rate of abortion among minorities. He also said women in Asian countries, preferring boys, will abort girls, though there was no testimony any of that is happening in Arizona.
Kolbi-Molinas said her claim of racial bias by lawmakers is unaffected by the fact that at least one African-American organization, the anti-abortion Frederick Douglass Foundation, supports the law.
“The legal standard is not whether you can prove every single black person in the world feels the same way,” she said. The only issue is whether those who have sued “can credibly allege that they have been injured.”