Lawsuit Challenges Ariz. Law on Abortions Based on Sex, Race of Fetus

May 30, 2013 — The American Civil Liberties Union of Arizona on Wednesday filed a lawsuit in federal court to challenge a 2011 Arizona law (HB 2442) that prohibits abortion based on the sex or race of the fetus, the AP/ABC News reports.

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 (Christie, AP/ABC News, 5/30). The affidavit is then included in a woman's medical records and can be accessed by the state medical board and prosecutors.

No one has been prosecuted under the Arizona law (Fischer, Capitol Media Services/Arizona Daily Star, 5/30). North Dakota and Kansas have enacted similar laws, but they have not yet been enforced.

Details of ACLU Suit

ACLU of Arizona filed the suit on behalf of two not-for-profit organizations, 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 argues that the law is unconstitutional because it violates the 14th Amendment's equal protection clause. Dan Pochoda -- an ACLU lawyer -- explained that the "long history of jurisprudence ... says laws passed with a discriminatory intent and racial stereotypes cannot stand, period." He added that "it is clear from the legislative history that that was the basis for the decision-making by the Legislature and the governor in this case" (AP/ABC News, 5/30).

ACLU pinpointed arguments made by state Rep. Steve Montenegro (R) when he proposed the law. According to ACLU, Montenegro claimed that abortion rates among black women are higher than among other groups and that women in Asian countries are far more likely to abort a female fetus than a male fetus.

ACLU said no evidence was presented during legislative hearings or floor debate that women in Arizona had abortions because of racial motivations or sex preference. The organization also pointed out that the majority of abortions performed in the state are completed before the sex of the fetus can be determined.

According to the suit, the law's "purpose is to reduce the rate or number of black and API (Asian and Pacific Islander) women who have abortions, but not women of any other race" (Capitol Media Services/Arizona Daily Star, 5/30).

Montenegro, NAPAWF Respond to Lawsuit

Montenegro said, "This [law] has to do with protecting the dignity of life and not allowing abortions to be performed based on the sex of the baby or the race of the baby" (AP/ABC News, 5/30). He added that it is "unfortunate" that people consider the law to be racist and that the law is not based on a belief that women of any particular group are not intelligent enough to make their own decisions.

Meanwhile, NAPAWF Executive Director Miriam Yeung in a statement said that the legislation "turns Asian-American women in Arizona into suspects" (Capitol Media Services/Arizona Daily Star, 5/30). She added, "This law is clearly a wolf in sheep's clothing that purports to be about achieving equality for women when in reality it's an attempt to control our reproductive decisio[n]-making" (AP/ABC News, 5/30).