Judge: Tax credits can’t discriminate - East Valley Tribune: Arizona

Judge: Tax credits can’t discriminate

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Posted: Tuesday, December 27, 2011 5:28 pm | Updated: 12:23 pm, Tue Jan 3, 2012.

A federal judge has blocked the state from cutting off tax credits to those who donate to organizations which suggest their pregnant clients might want to consider an abortion.

Judge Roslyn Silver said the legislation, set to take effect at the end of the month, illegally discriminates among otherwise eligible groups solely because they “express a pro-choice viewpoint.’’ But she said those who counsel people against terminating a pregnancy are unaffected.

That, said Silver, is likely unconstitutional discrimination.

Silver’s ruling is not final. In issuing a preliminary injunction on Friday, she simply blocked the state from implementing the law while the legal dispute makes its way through the legal system.

But the judge, in her nine-page ruling, made it clear she believes that, when all is said and done, the arguments by the state justifying the distinction are likely to fail.

House Majority Whip Debbie Lesko, R-Glendale, who crafted the legislation, vowed an appeal.

She pointed out Arizona law already prohibits the use of state funds for abortions. Lesko called the tax credits available for donations to organizations that espouse abortion a “loophole’’ in that ban.

The state’s Working Poor Tax Credit provides individuals a dollar-for-dollar state income tax credit for donations to charitable organizations that spend half their funds on the poor, chronically ill or physically disabled. The annual cap is $200 for individuals and $400 for couples.

Lesko’s law says credits are available only to a charity that provides a statement that it “does not provide, pay for, promote, provide coverage of or provide referrals for abortions and does not financially support any other entity that provides, pays for, promotes, provides coverage of or provides referrals for abortions.’’

The American Civil Liberties Union sued on behalf of the Arizona Coalition Against Domestic Violence, a group which can currently tell donors they are eligible for the tax credit.

Attorney AlexaKolbi-Molinas said some clients who are pregnant have been raped or are the victims of sabotaged birth control by an abusive spouse or partner. She argued these women need to be told how to get an abortion if they want one.

Silver agreed with attorneys for the state who said the coalition has no constitutional right to tax credits. She said Arizona could repeal the program entirely. Alternately, the judge said, it could impose “viewpoint-neutral’’ criteria.

“But what Arizona very likely cannot do is deny participation in the program solely  on the viewpoint expressed by an organization regarding abortion,’’ Silver wrote. She said it essentially becomes a financial penalty “solely because of the type of abortion-related speech.’’

The judge also said allowing the state to implement the law would cause irreparable harm.

“Individuals and organizations would have to choose between expressing their views regarding abortion and remaining eligible for participation in the program,’’ Silver wrote. “Given the factual context, requiring this choice likely is an infringement of First Amendment freedoms.’’

Silver also pointed out that the law is not balanced. It does not impose a similar loss of tax credit status on organizations which counsel women against terminating a pregnancy.

Lesko said that was by design.

“That’s because I’m pro-life,’’ she said.”If somebody wants to try to pass legislation that says the other way, then they are free to do so.’’

Lesko’s personal beliefs became part of the record -- and part of Silver’s ruling, with the judge quoting from the lawmaker’s testimony before the House Health and Human Services Committee.

“I believe God has put me here for a reason,’’ Lesko testified.”And I truly believe that one of the purposes that I have been put in this position is to protect the lives of innocent children.’’

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