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Advocates Ask Ninth Circuit to Reinstate Challenge to Arizona Race- and Sex-Selection Abortion Ban

Jessica Mason Pieklo

Two groups have appealed the dismissal of their challenge to an Arizona anti-choice restriction that they argue unconstitutionally relies on harmful racial stereotypes to discriminate against and shame Black and Asian American and Pacific Islander women who decide to end their pregnancies.

On Wednesday, the National Asian Pacific American Women’s Forum (NAPAWF) and the National Association for the Advancement of Colored People (NAACP) of Maricopa County appealed the dismissal of their challenge to an Arizona anti-choice restriction that they argue unconstitutionally relies on harmful racial stereotypes to discriminate against and shame Black and Asian American and Pacific Islander (AAPI) women who decide to end their pregnancies.

Arizona’s HB 2443, passed in 2011, makes it a felony for a doctor to terminate a pregnancy if she knows the abortion is “sought based on the sex or race of the child or the race of the parent of that child.” The law also requires doctors to sign an affidavit to certify that the reason the patient is seeking an abortion has nothing to do with the race or sex of the embryo or fetus. That affidavit must be filed away and made available, when requested, to the Arizona Medical Board and prosecutors. If convicted under HB 2443, a doctor faces up to seven years in prison.

In May 2013, NAPAWF and the NAACP, represented by the American Civil Liberties Union (ACLU) and the ACLU of Arizona, filed suit to challenge the bill arguing the law violated the 14th Amendment. A lower court dismissed the challenge in October of 2013, holding the groups did not have standing to challenge the law. According to the court, the parties had not shown that any individual had suffered an “actual injury” under the law. The court reasoned that because the basis of the lawsuit “rests exclusively on alleged stigma and denigration issues,” which the court categorized as “generalized and abstract injuries,” the parties did not have a basis for constitutional standing necessary to move the lawsuit forward. The lower court did not rule on the merits, but instead dismissed the case on standing. This filing in the U.S. Court of Appeals for the Ninth Circuit appeals that decision.

“This law is a wolf in sheep’s clothing,” Miriam Yeung, NAPAWF executive director and a leading voice on how these laws discriminate against women of color, said in a statement. “This law is not about equality or women’s health. It’s about advancing an anti-abortion agenda by shaming and demeaning Black and AAPI women. The politicians behind this law do not care about improving the lives and health of women and girls. They are just exploiting women’s personal and private health care decisions to score political points.”

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As detailed in the challenge to the law, “race and sex selection abortion bans promote anti-immigrant sentiments, stigmatize and discriminate against women of color by suggesting they can’t be trusted to make their own reproductive health care decisions.” In support of those claims, challengers pointed to the debate at the time the law was passed during which “supporters claimed AAPI women would engage in sex-selective abortion simply because of their race, even though there was no evidence of sex-selective abortions in Arizona.” Supporters of the law also argued “higher rates of abortion among Black women as evidence that Black women were either having abortions to prevent the birth of Black children, or were being duped into having abortions as part of a racist plot.”

“Once again, Arizona’s legislators passed a law based on clearly stated, discriminatory intent,” said Dan Pochoda, ACLU of Arizona legal director. “This opportunistic attempt to actualize racial bias furthers the perception of Arizona officials as bigots and of the state as unwelcoming.”

Supporters of the law argued that it does not illegally discriminate against Black or AAPI women because it forbids anyone from aborting based on the race or gender of the fetus. In fact, Arizona Attorney General Tom Horne argued to the district court that the law actually protects civil rights because it is designed to protect minorities and “disfavored genders.” Civil rights advocates in the state disagree. “Instead of racist laws that demonize women of color, we need policies that make it easier for a woman of color to raise her family in a safe and healthy environment, so she can make her own choices about her life,” said the Rev. Oscar Tillman of the Maricopa NAACP, which has been fighting to eliminate racial and ethnic bias in Arizona for almost a century.

Arizona is not alone in passing specious race- and sex-selection abortion bans. Over the past five years, more than 60 bills like Arizona’s have been introduced both at state and federal levels. Earlier this month, the South Dakota legislature passed an abortion ban targeting AAPI women, which advocates are trying to get vetoed.

“When the government passes a law reducing its citizens to ugly racial stereotypes, it inflicts on them one of the most serious constitutional injuries recognized in our legal system,” said Alexa Kolbi-Molinas, staff attorney for the ACLU’s Reproductive Freedom Project. “We are hopeful the Ninth Circuit will reverse the lower court’s decision and allow NAACP and NAPAWF to have their day in court.”

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