Saying the law stigmatizes their races, members of two groups asked a federal appeals court Wednesday to block Arizona from banning race- and gender-based abortions.
Attorneys for the American Civil Liberties Union representing both organizations said the 2011 law is based on the Legislature's “brazen and explicit reliance of invidious racial stereotypes about the reasons black and Asian and Pacific Islander women decide to end a pregnancy.” Alexa Kolbi-Molinas, leading the legal team, said that amounts to “intentional government discrimination and endorsement and perpetuation of offensive racial stereotypes.”
That, she said, that not only makes the law unconstitutional, but also gives the NAACP and the National Asian Pacific American Women's Forum the legal right to sue to overturn the law.
But challengers could have an uphill fight: A trial judge in Phoenix rejected those same arguments last year, throwing out their case.
The 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.”
It also requires doctors to sign an affidavit saying they are not knowingly terminating the pregnancy because of the child's sex or race. That affidavit becomes part of the doctor's medical record, which can be accessed by the Arizona Medical Board and, ultimately, by prosecutors.
There is no record of anyone having been charged under the law.
Potentially more significant, though, was the finding last year by U.S. District Court Judge David Campbell there is no record that any woman has been denied an abortion because of the law.
He said only those who have been harmed by the statute having standing to sue, and Campbell said the challenge “rests exclusively on alleged stigma and denigration issues” which he called “generalized and abstract.”
In seeking review by the 9th U.S. Circuit Court of Appeals, Kolbi-Molinas called that “irrelevant.” She said the mere fact that Arizona lawmakers acted “with discriminatory intent” provides the groups a right to sue.
In pushing the legislation, Rep. Steve Montenegro, R-Litchfield Park, said there was evidence that blacks have a higher abortion rate than other races. He called those who perform such procedures “the people behind genocides.”
Montenegro also said women in Asian countries, preferring boys, will abort girls.
There was, however, no testimony any of that is happening in Arizona.
Kolbi-Molinas disputed Campbell's conclusion that stigma, absent something more, is not an injury for which someone can sue. As proof she cited the historic 1954 U.S. Supreme Court ruling which declared the concept of “separate but equal” segregated schools to be illegal.
“The court recognized that stereotypes and race-based classification that carry the imprimatur of the government can have profound damaging psychological effects on a person's identity and ego,” Kolbi-Molinas wrote.
In throwing out the claim last year, Campbell never reached a conclusion about whether the law is constitutional.
He essentially said 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.