Calling it a matter of civil rights, a House panel voted Wednesday to make it illegal for a doctor to perform an abortion when a woman says it's because of the child's gender or race.
The 5-3 vote by the Health Committee came after Rep. Steve Montenegro, R-Litchfield Park, said there is evidence that women are choosing to terminate pregnancies after finding out that the fetus is female. He cited two studies, though both relate largely to Asian parents, either in the United States or abroad.
Doctors who knowingly violate that law could be sued by the father of the unborn child, or, in the case of a minor, her parents. The physician also could potentially lose the right to practice in Arizona.
Enforcement, however, could be another matter.
HB 2443 covers only situations where a doctor knowingly or intentionally aborts a child based on gender or race. Montenegro conceded that essentially immunizes a doctor who does not inquire about the reason for the abortion.
"But I'm still going to tell you that's wrong,'' he said.
The provision on race-based abortion deals less with a mother's motives and more with those who Montenegro said have racial reasons to want to limit minority population: It would make it illegal for a clinic to solicit or take money from anyone who says the cash can be used only to perform abortions on minorities.
Wednesday's vote in the House comes as the Senate Committee on Healthcare and Medical Liability Reform approved two related measures.
SB 1246 expands requirements for doctors to perform surgical abortions to also include medical termination of pregnancies. That would end the practice of letting certified nurse practitioners administer RU-486, eliminating non-surgical abortions now performed at clinics in Prescott, Flagstaff and Yuma.
An identical measure was approved by the House Health Committee last week.
The Senate panel also agreed to expand laws that already ban public funding for abortions. SB 1265 would prohibit individuals from getting tax state credits for giving to charities that provide, pay for or refer people for abortions.
It is Montenegro's legislation, however, that could provoke the biggest legal fight.
A 1973 ruling by the U.S. Supreme Court concluded that women have an absolute right to terminate a pregnancy, at least during the first trimester, without state inquiry or intervention. While some restrictions, have since been upheld, such as for late-term abortions, federal courts have rejected outright challenges to the basic premise of that ruling.
Montenegro, however, said his legislation is built on a stronger legal premise.
"We have protections against discrimination for sex, for race, skin color in education, in employment,'' he said, as well as in other areas. Montenegro said the bill would protect the civil rights of unborn children.
Bryan Howard, president of Planned Parenthood Arizona, said he hasn't looked at the legal question. But he called the idea of sex- or race-based abortions "a manufactured issue,'' saying there is no evidence of a need for such a restriction.
"Frankly, we see it as an opportunity by opponents of abortion to stigmatize women and couples who choose that health care,'' Howard said. "We see it as a distraction from the real reasons that women and couples choose to end pregnancy, things like being out of work, things like being pregnant by a partner who you have left, perhaps you're in an abusive relationship.''
Montenegro said while there are no Arizona-specific numbers, there is evidence gender does play a role in abortion.
One 2008 study looking at Census Bureau data found a "male bias'' among U.S.-born children of Chinese, Korean and Asian parents, particularly among third children: Where there was no previous son, males outnumbered females by 50 percent.
Howard said doctors and nurse practitioners at Planned Parenthood don't routinely ask women about why they want to terminate a pregnancy.
"They don't probe unless the patient volunteers what the reasoning is,'' he said. "What we do want to make sure is she's thought through both that choice as well as the alternatives.''
The issue of race and abortion is a bit more historically complex.
Margaret Sanger, who founded Planned Parenthood, was a proponent of eugenics, the idea of improving the race through breeding and promoting birth control among those with less desirable traits. Some of her writings have been interpreted as racist.
"If that existed in an earlier day, it doesn't exist in our organization today,'' Howard said.