Saying challengers have no right to sue, Attorney General Tom Horne asked a federal judge Tuesday to throw out a challenge to Arizona's ban on abortion because of the gender or race of the child.
Horne said the 2011 law does not illegally discriminate. He said the statute, believed to be unique in the entire country, actually requires identical treatment of all women.
“Abortion providers are prohibited from performing sex and race-based abortion on all women — regardless of race or ethnicity,” Horne said.
Horne said the challengers — the NAACP and the National Asian Pacific American Women's Forum — have no legal standing to try to have the law voided. That's because there is no evidence that either group or its members are harmed or even intend to have a gender or race-based abortion.
Anyway, he said, women cannot be prosecuted under the law. The criminal penalty in the measure — up to seven years in prison — applies only to doctors who terminate a pregnancy based on the gender or race of a child.
The legal pleadings make no reference to the fact that federal courts have consistently ruled that women have a right to an abortion prior to viability of a fetus.
But Horne said the challenge to the law is based not on that right to terminate a pregnancy but on claims of discrimination.
So he said that is all that matters. In fact, Horne argued the law actually protects civil rights.
“That's designed to protect minorities and disfavored genders,” Horne said. “For example, women: It's designed to protect women who might end up getting aborted because people want a son rather than a daughter.”
That question of discrimination goes to the heart of the lawsuit.
The law makes it a felony for a doctor to terminate a pregnancy “knowing that the abortion is sought based on the sex or race of the child or the race of the parent of that child.”
In pushing the legislation in 2011, Rep. Steve Montenegro, R-Litchfield Park, said there was evidence blacks have a higher abortion rate than other races, calling those who perform such procedures "the people behind genocides.''
Montenegro also cited studies saying that Asian women have a preference for sons, though he never produced any Arizona-specific evidence.
The lawsuit claims the purpose of the law is to reduce the number of black and Asian women who have abortions. That, the challengers say, is “based on racist and discriminatory stereotypes” about both groups.
Monica Ennis, past president of the Arizona Black Nurses Association and a member of the National Association for the Advancement of Colored People, called it “an insult to the intelligence of African-American and Asian women.”
Horne, in asking the case be dismissed, shows that proves the challenge is based on claims by the two groups that the law stigmatizes their pregnant female members. That, he said, does not give them standing to sue.
“The U.S. Supreme Court has rebuffed stigmatic injuries as too abstract and generalized to meet standing requirements in equal protection litigation,” his pleadings say.
Beyond that, Horne said the challengers are not contending that their members even want race and sex-selective abortions. And since there is no intent to engage in the conduct prohibited by the law, he said they have no right to challenge it.
While the law has been on the books since 2011 there is no evidence anyone has ever been prosecuted for violating it.
The Guttmacher Institute says Arizona is the only state with a ban on both race and gender-based abortions. But several other states have enacted laws making it illegal to perform an abortion based on the gender of the fetus.