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Ariz. Attorney General Moves To Dismiss Legal Challenge Against Sex-, Race-Based Abortion Ban

Ariz. Attorney General Moves To Dismiss Legal Challenge Against Sex-, Race-Based Abortion Ban

July 25, 2013 — Arizona Attorney General Tom Horne (R) on Tuesday asked a federal judge to dismiss a lawsuit filed against a 2011 state law (HB 2442) that prohibits abortion based on the sex or race of the fetus, Capitol Media Services/Arizona Daily Sun reports (Fischer, Capital Media Services/Arizona Daily Sun, 7/24).

The law makes it a felony for anyone to knowingly perform or finance an abortion sought because of the fetus' sex or race. It also requires physicians to question abortion patients about their reasons for seeking the procedure and sign an affidavit swearing that the fetus' sex or race is not a factor. The affidavit is then included in a woman's medical records and can be accessed by the state medical board and prosecutors.

In May, the American Civil Liberties Union of Arizona challenged the law on behalf of the National Association for the Advancement of Colored People's Maricopa County branch and the National Asian Pacific American Women's Forum. In the suit, ACLU argued that the law is unconstitutional because it violates the 14th Amendment's equal protection clause (Women's Health Policy Report, 5/30). Specifically, the suit said the law aims to reduce the number of black and Asian women who have abortions and is "based on racist and discriminatory stereotypes" about both groups.

Details of Dismissal Request

In his motion, Horne said the law does not illegally discriminate but rather requires the identical treatment of all women. "Abortion providers are prohibited from performing sex  and race-based abortion on all women -- regardless of race or ethnicity," he stated.

Horne also argued that the case should be dismissed because the plaintiffs have no legal standing to challenge the law. According to the attorney general, neither group has evidence that its members are harmed by the law or even intend to undergo a race- or sex-based abortion. Further, he argued that plaintiffs' claim that the law stigmatizes their pregnant, female members is inadequate. "The U.S. Supreme Court has rebuffed stigmatic injuries as too abstract and generalized to meet standing requirements in equal projection litigation," Horne said.

Horne also noted that the plaintiffs' suit is based on claims of discrimination, not the right to an abortion (Capitol Media Services/Arizona Daily Sun, 7/24).