The law, officially the “Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act of 2011,” is supposed to “protect unborn children from prenatal discrimination in the form of being subjected to abortion based on the child’s sex or race,” but the ACLU says it’s nothing more than legalized discrimination constructed solely on baseless racial stereotypes that certain "women cannot be trusted to make personal health care decisions without scrutiny by the state."
The law makes it a class 3 felony for any person who “performs an abortion knowing that the abortion is sought based on the sex or race of the child or the race of a parent of that child; uses force or the threat of force to intentionally injure or intimidate any person for the purpose of coercing a sex-selection or race-selection abortion; solicit or accepts monies to finance a sex-selection or race-selection abortion," and stipulates that “a person shall not knowingly perform or induce an abortion before that person completes and signs an affidavit that…states that the child to be aborted is not being aborted because of the child’s sex or race.”
“This law is based on ugly racial stereotypes about black and Asian women,” says Alexa Kolbi-Molinas, an attorney for the ACLU’s Reproductive Freedom Project who argued the case in court this week.
“And it’s entire purpose was to have doctors racially profile their patients based on the [Arizona] Legislature’s beliefs ” — beliefs, she says, that are misguided and baseless.
Sponsors and supporters of the law “were motivated by their conviction that black and [Asian-American and Pacific Islander] women behave a certain way simply because they are black and API women,” the ACLU writes in a legal brief.
“The Legislature looked at the number of abortions among black women, and said this must be evidence that they want to eliminate the black race,” Kolbi-Molinas says. And they looked at problems of female infanticide in certain Asian countries and said that American woman of Asian decent must have the same motivation.
"The entire purpose was to have doctors racially profile their patients based on the [Arizona] legislature’s beliefs”
“To justify the ban on sex-selection abortions, the Legislature invoked reports of such abortions in China and India, the present and future immigration of API women to Arizona, and nothing more,” the ACLU writes, even though “Arizona’s own data—available to the Legislature when it passed the Act—showed that the gender ratio among babies born to API women was no different from the ratio among babies born to other women in Arizona.”
In addition, Kolbi-Molinas says, no discussion ever was had about other reasons non-white women have higher abortion rates, nor was the abortion rate for other races ever discussed.
“Our plaintiffs are being accused of a crime they’re not committing,” she adds. “They don’t [represent women] who want to eliminate their own race.”
Court documents point out the following direct quotations from Arizona legislators during the 2011 session:
The Act’s primary sponsor, Representative [Steve] Montenegro, explained that the ban was necessary “because minority babies are several times more likely to be aborted than white babies,” and that “some abortions are performed because a mother does not want a...minority baby.”
Another Senator read into the legislative record a letter from U.S. Congressman Trent Franks in support of the Act, stating that “African-American babies are now aborted at five times the rate of White babies...We criticize other nations for human right [sic] abuses; at the same time, we look the other way while our own children are being killed simply because [they are] the wrong . . . race.”
“We know that [female infanticide] is pervasive in some areas [like China and India]. We know that people from those countries and from those cultures are moving and immigrating in some reasonable numbers to the United States and to Arizona," said another Senator, explaining his support for the bill.
The ACLU first challenged the case in 2013 on behalf of the Maricopa County National Association for the Advancement of Colored People and the National Asian Pacific American Women’s Forum, but a federal district judge dismissed the case after the state successfully argued that the plaintiffs couldn’t show actual harm from the law.
“The judge said the NAACP and NAPAWF didn’t have the legal injury necessary to even bring the case because they couldn’t show they’d been denied an abortion based on race,” Kolbi-Molinas explains.
She calls the logic “a Catch-22” because no women of color were trying to get abortions as a means of destroying their own race and so the plaintiffs couldn’t produce a witness to prove they’d been harmed by the law.
“The judge said that unless you fall under this law, you can’t challenge it.”
After having the case dismissed in district court, the ACLU appealed to the U.S. 9th Circuit Court of Appeals, which is where the case is now.
“Our appeal is based on the idea that racism hurts and that racial profiling is a harm itself,” she explains. “We argued in court that the harm is that this law perpetuates ugly stereotypes . . . and that the district court got it wrong.”
The defense, she says, made the same argument as before – that the plaintiff’s couldn’t show legal harm and therefore couldn’t bring the case.
“What’s really interesting about the approach that the Arizona Legislature has taken throughout this litigation is that they’ve never attempted to dispute any of the racist things that the Legislature has said," Kolbi-Molinas says. "Instead they just make a purely legal argument,” namely, that unless actual witness can be provided who wanted to get an abortion to end her own race or because she knew the baby would be a female, then the challenge has no merit.
“But the whole point is to say that racist laws designed to stigmatize women for acts they are not doing is the harm,” she says, not to mention a violation of the 14th Amendment.
It’s unclear when the appeals court will decide the case – it could be a few months to a year — but Kolbi-Molinas says she and the ACLU team are hopeful "the court will read the arguments and appreciate the position we're taking."
Watch the court proceedings: