Judge Suggests Ariz. Tax Credit Law Restricts Free Speech

November 17, 2011 — Federal Judge Roslyn Silver on Wednesday signaled that she might rule against an Arizona law (HB 2384) prohibiting residents from claiming tax credits for donations to charitable organizations that directly or indirectly support abortion rights, the Yuma Sun reports. However, Silver said she would take the state's arguments under advisement and decide at a later date whether to temporarily block the law while the legal case continues (Fischer, Yuma Sun, 11/16).

In October, the American Civil Liberties Union of Arizona and the Arizona Coalition Against Domestic Violence requested a preliminary injunction to stop the law from taking effect at the end of the year. Under the law, Arizona residents cannot claim the state's Working Poor Tax Credit for donations to organizations that "provide, pay for, promote, provide coverage of or provide referrals for abortions," or financially support any entity that does. The tax credit allows claims of up to $200 for individuals and up to $400 for married couples filing jointly. The law also forbids the use of state or federal funds and student tuition to train medical professionals to provide abortion services (Women's Health Policy Report, 10/27).

According to the Sun, although Silver did not indicate how or when she will rule, she said the law appears to discriminate against groups based on what they tell clients and might violate the First Amendment.

Arizona Solicitor General David Cole argued that state lawmakers are allowed to make distinctions on who qualifies for tax credits (Yuma Sun, 11/16). He said the law restricts a group's activities but not its speech, adding that the state Legislature's decision to pass the law was "both reasonable and within the spirit of its authority."

ACLU attorney Alexa Kolbi-Molinas argued, "This law excludes members from participating in the tax credit program based solely on the opinion they express." She added, "Viewpoint discrimination should not be permitted." Kolbi-Molinas said that allowing the law to take effect would harm domestic violence survivors because the Arizona Coalition Against Domestic Violence would not be able to help them locate abortion providers.

"Women in abusive relationships often experience a range of sexually violent behaviors that can lead to unintended pregnancy," and there are many circumstances under which they would decide to seek abortion services, she said (Beard Rau, Tucson Citizen, 11/17).