U.S. Appeals Court Rejects Arguments Against Ariz. Law Banning Abortion for Race, Sex

December 16, 2015 — The U.S. 9th Circuit Court of Appeals on Tuesday rejected a lawsuit brought by two civil rights groups seeking to challenge a law (HB 2442) banning abortion based on the sex or race of a fetus, the AP/Arizona Republic reports (Christie, AP/Arizona Republic, 12/15).


The 2011 Arizona 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 patients about their reasons for seeking an abortion 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 2013, the American Civil Liberties Union of Arizona challenged the 2011 law on behalf of the National Association for the Advancement of Colored People's Maricopa County branch and National Asian Pacific American Women's Forum. In the lawsuit, ACLU of Arizona argued that the law is unconstitutional because it violates the 14th Amendment's equal protection clause. 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 2013, Arizona Attorney General Tom Horne (R) asked a federal judge to dismiss the suit, saying the law 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 Horne, neither group had evidence that its members are harmed by the law or intend to undergo a race- or sex-based abortion.

U.S. District Court Judge David Campbell ruled in October 2013 that NAACP and NAPAWF did not have legal standing to pursue the lawsuit. The two civil rights organizations appealed that decision in March 2014. In their appeal, the groups argued that they had standing to sue because they had been stigmatized by the state law. They also said state lawmakers had discriminatory intent when they passed the law (Women's Health Policy Report, 12/10).

Details of Ruling

The 9th Circuit upheld Campbell's 2013 ruling that the groups had no standing to file suit because they had not demonstrated that any individual was harmed because of the law.

In the decision Tuesday, the three-judge panel rejected the groups' proposed "alternate basis for standing resulting from being the targets of ... discriminatory intent." The judges wrote, "That theory is a ... repetition of Plaintiffs' stigmatic injury, which does not support standing" (AP/Arizona Republic, 12/15).

The court said that while racial discrimination can be reason to seek legal action, such a right is only available to those "who are personally denied equal treatment" (Howard Fischer Capitol Media Services/Arizona Daily Star, 12/15).

NAPAWF Responds

NAPAWF Executive Director Miriam Yeung said she was "deeply disappointed" by the outcome and noted that her organization's members "remain deeply insulted by the law that triggered our lawsuit."

Yeung said, "We'd like to remind folks that this was not a hearing about the original merits of the case, which we stand by, that so-called prenatal non-discrimination laws are discriminatory." She added, "Our lawyers at the ACLU are going to figure out what our next steps are" (AP/Arizona Republic, 12/15).