Federal Judge Dismisses Lawsuit Against Ariz. Law Prohibiting Abortion Based on Sex, Race of Fetus

October 7, 2013 — A federal judge on Thursday dismissed a lawsuit challenging a 2011 Arizona law (HB 2442) that prohibits abortion based on the sex or race of the fetus, the Arizona Daily Star reports (Fischer, Arizona Daily Star, 10/4).

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.

Lawsuit Background

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. 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.

In July, Arizona Attorney General Tom Horne (R) asked a federal judge to dismiss the suit, saying it does not illegally discriminate but rather requires the identical treatment of all women.

Horne also argued that the case should be dismissed because the plaintiffs had no legal standing to challenge the law. According to the attorney general, neither group had evidence that its members are harmed by the law or even intend to undergo a race- or sex-based abortion (Women's Health Policy Report, 7/25).

Judge's Ruling

U.S. District Judge David Campbell appeared to agree with Horne's claims, saying the plaintiffs have failed to provide evidence that any individual has suffered a personal injury because of the law and as such have no right to challenge the law.

In his 12-page ruling, Campbell wrote, "Plaintiffs do not claim that their members have been denied abortions because of the act or face prosecution or liability under the act."

Campbell's ruling was made solely on procedural grounds and does not address the constitutionality of the law. Campbell's ruling leaves the constitutionality of the law undetermined until a woman or a doctor who have been affected by the it file a lawsuit against it.


Dan Pochoda, legal director of the American Civil Liberties Union of Arizona, in a prepared statement said his organization remains convinced the statute will be overturned and already is looking for ways to challenge it and "put an end to this unconstitutional, bigoted law."

Meanwhile, supporters of the law -- such as Alliance Defending Freedom -- viewed the ruling as a victory. Casey Mattox -- senior counsel for the antiabortion group -- said, "There is nothing medically necessary or constitutionally protected about an abortion that is committed on the basis of sex or race" (Arizona Daily Star, 10/3).