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Court Rejects Challenge to Arizona GOP’s Race- and Sex-Selective Abortion Ban

Zoe Greenberg

The suit charged that Arizona’s law used stereotypes to increase the stigma surrounding abortion for Black and Asian-American women.

A federal appeals court on Tuesday dismissed a challenge to Arizona’s race- and sex-selective abortion ban.

The suit, brought by the NAACP and the National Asian Pacific American Women’s Forum (NAPAWF), charged that Arizona’s law used stereotypes to increase the stigma surrounding abortion for Black and Asian-American women. An attorney with the ACLU represented the groups.

The Ninth Circuit Court of Appeals upheld a lower court’s ruling: that stigma and discrimination stemming from the law do not amount to legal “injury,” meaning the two civil rights groups do not have standing to sue. Neither court addressed the legality of the abortion ban itself.

In a memo, the judges noted that stigma caused by racial discrimination can provide the grounds to sue, but only to those who are “personally denied equal treatment.” The civil rights groups did not claim that anyone had personally been denied equal treatment, but instead that the law targeted Black and Asian-American women with “discriminatory intent.”

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Lacking an individual who has personally suffered under the law, the case will not move forward.

“We want to remind people that today’s decision was on standing—not on the merits of the case—and denies the NAACP and NAPAWF our chance to be heard on these issues,” Miriam Yeung, the executive director of NAPAWF, said in a press release. “Women of color in Arizona, and women across the country, continue to be deeply insulted by prenatal nondiscrimination laws.”

Arizona’s GOP-majority legislature originally passed the law by claiming the high rate of abortion in the Black community proves that Black women are terminating their pregnancies because of racial bias. It also warned that Asian-American women will terminate pregnancies if the fetus is a girl, despite evidence showing there’s no discrepancy between the gender ratios of births by Asian-American women and women of other races in the United States.

Advocates at the NAACP and NAPAWF called the law a “wolf in sheep’s clothing” that employs the language of civil rights to limit the reproductive rights of Black and Asian-American women.

Alexa Kolbi-Molinas, staff attorney for the ACLU’s Reproductive Freedom project, expressed her frustration after the ruling.

“We are extremely disappointed the court did not recognize that when politicians pass a law reducing their citizens to ugly racial stereotypes, it inflicts one of the most serious constitutional injuries recognized in our legal system,” she said in a statement.

Although the case was dismissed, the law could face another challenge. One of the judges at the hearing in San Francisco this month said a woman who was refused an abortion would have standing to challenge the law, according to the Arizona Capitol Times. Similarly, a doctor who was prosecuted under the law (which makes it a felony to perform an abortion with knowledge that race or sex played into the woman’s decision) would have standing to sue.

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