Arizona law banning abortion based on race, sex goes before court

The battle over an Arizona law banning abortions based on a fetus' race or sex returned to court Wednesday.

The U.S. Court of Appeals for the 9th Circuit heard arguments in a lawsuit challenging the 2011 law that made it a felony to perform an abortion if the doctor knows it is sought based on the fetus' sex or race.

Arizona is the only state in the country to ban abortions based on race. It is one of seven to ban abortions based on sex.

The focus of Wednesday's court arguments was whether the civil-rights groups that filed the lawsuit have legal standing to challenge the law.

The American Civil Liberties Union of Arizona filed the lawsuit on behalf of the Maricopa County branch of the National Association for the Advancement of Colored People and the National Asian Pacific American Women’s Forum. According to court documents, the groups are not opposing the law because their members want to seek abortions based on the race or sex of their fetuses, but instead allege the law stigmatizes minority groups by making the assumption that they would want to seek abortions for such reasons. They contended the law violates the Equal Protection Clause of the 14th Amendment.

"This law stems from the racist stereotypes that Asian-Americans don't value women and girls and that Black and Asian-American women can't be trusted to make our own reproductive decisions," said Miriam Yeung, executive director of the National Asian Pacific American Women's Forum.

Dianne Post, with the NAACP Maricopa County branch, said the law suggests Black women are "cold bloodedly committing genocide" or somehow being tricked by the abortion industry into committing that genocide.

"We've seen this before: White men controlling the fertility of Black women," she said.

Kathy Nakagawa,  an Arizona State University professor and founding member of the Arizona chapter of the National Asian Pacific American Women's Forum, said Republican lawmakers supporting the legislation provided no evidence proving women in Arizona are seeking abortions based on a fetus' race or sex.

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"Laws based on false accusations that Asian-American women do not value women and girls have no place in Arizona," she said. "This law exploits a false stereotype about Asian-American women to try to chip away at women's right to an abortion."

A federal judge in Arizona dismissed the lawsuit in 2013, saying the groups failed to prove minorities had been unequally denied abortions under the law. Being stigmatized, the judge wrote, is not enough to grant a group or individual legal standing in such a lawsuit. The ruling did not address the constitutionality of the underlying law.

The plaintiffs appealed to the 9th U.S. circuit, and were granted a hearing.

Yeung and Nakagawa said stigma should be sufficient legal injury to grant them legal standing in the case and allow them to move forward with challenging the underlying constitutionality of the law.

"This law denigrates the Asian-American and Pacific Islander communities," Nakagawa said. "That should be enough to challenge the law. We want justice."

Assistant Attorney General David Weinzweig defended the law before the appeals court. The Attorney General's Office declined to comment on the case.

The Scottsdale-based Christian legal group Alliance Defending Freedom has also been involved with the case, filing a brief supporting the law and representing bill sponsor Rep. Steve Montenegro. 

Montenegro, R-Litchfield Park, in the past has said the intent of the law was to protect minority fetuses. “No one should be discriminated against by being subjected to an abortion because they are going to be born the ‘wrong’ gender or the ‘wrong’ race,” he said.

During legislative hearings on the law, Republicans said that statistics show a high percentage of abortions are being sought by minority women and that abortion clinics intentionally locate in minority areas. They said statistics indicate that some populations are increasingly seeking abortions based on the fetus’ sex.

Post, with the NAACP, argued statistics indicating Black women have more abortions reflect issues not of women discriminating against the race of a fetus but about racial economic inequality and access to contraception.