A federal appeals court dismissed a challenge to Arizona’s race and sex-based abortion law this week.
The decision upholds a lower court’s ruling that the plaintiffs – the National Association for the Advancement of Colored People and the National Asian Pacific American Women’s Forum, as represented by the American Civil Liberties Union – don’t have the proper legal standing to bring the case against the state of Arizona because they cannot prove the law caused them actual harm.
The law in question, “Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act of 2011,” makes it a class-3 felony for a person to perform, obtain, or attempt to obtain an abortion based on the sex or race of the child and law stipulates that doctors must sign an affidavit saying a woman is not terminating her pregnancy because of the race or sex of the child.
Supporters of the law say it will help reduce a disproportionately high abortion rate for certain minorities, while critics say it does little more than institutionalize “racist and sexist” stereotypes.
“On its face it doesn’t look discriminatory,” ACLU Arizona attorney Dan Pochoda says, “but when you look at the debates the Legislature had [while discussing it in 2011], it’s clear that it’s ugly…and based on racist and discriminatory [premises].”
What’s more, he adds, “it only singled out black and Asian women.”
According to plaintiff’s appeal, 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.”
While the law makes it illegal for anyone to make an abortion decision based on race or sex, the ACLU says the reality of it is that it’s asking doctors to racially profile their patients and thus is a violation of the Constitution.
Most importantly, plaintiffs also contend that case-law precedence supports their position: “There are a number of statements in various cases where courts have said, ‘If you can show a bad or unconstitutional motive on the part of the Legislature, we will presume that the law that follows is carrying out that intent, and void it,” Pochoda says.
He says records from the 2011 legislative session clearly show that sponsors of the law were motivated by racist stereotypes:
The law’s primary sponsor explained at the time 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.”
Records collected by the ACLU show that another senator said: “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.”
As Alexa Kolbi-Molinas, an attorney for the ACLU’s Reproductive Freedom Project, told New Times recently: “This law is based on ugly racial stereotypes about black and Asian women.”
“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,” she 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.
Not only is it untrue that Asian women in Arizona have higher-than-average abortion rates, Kolbi-Molinas adds, but supporters did not look at any other factors that could explain why the abortion rate differs between races.
Kolbi-Molinas argued the case to the appeals court last week, and she says the decision this week is surprising because “it was clear…that the court recognized to some extent that this is racially profiling women for a crime they’re not committing. That it’s trying to create a solution for a harm that doesn’t exist.”
But like in the lower courts, the defendants motioned to dismiss the case because the plaintiffs couldn’t show the law was causing actual harm.
“Of course the actual harm doesn’t exist,” Kolbi-Molinas says, because black and Asian women don’t have abortions to destroy their own race or sex. “It’s a Catch-22.”
She calls the judges’ ruling “incredibly disappointing,” but points out that “the court didn’t uphold the law on the merit.” The ACLU could challenge the decision again, though Kolbi-Molinas says the group hasn’t decided to do so yet.
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“Oy vey,” Pochoda says of the decision, adding that he think the ACLU would have won the case had it not “been cut off prematurely.
“But we haven’t been allowed to get to the fact-finding stage of the lawsuit.”
Read the Appellate Court decision: