Arizona AG Insists Abortion Restriction Based on Racial Stereotypes Is Not Discriminatory

Arizona Attorney General Tom Horne asked a federal court to dismiss a challenge to the state's race- and gender-based abortion ban, because the civil rights groups suing can't show the law hurts women of color.

Arizona Attorney General Tom Horne. Tom Horne / YouTube

On Tuesday lawyers for the State of Arizona asked a federal judge to dismiss a legal challenge to a 2011 law that bans abortions based of the race or gender of the fetus, because the challengers have no standing to sue.

The law is being challenged by the NAACP and the National Asian Pacific American Women’s Forum (NAPAWF) who argue the law is unconstitutional and relies on harmful racial stereotypes to shame and discriminate against Black women and Asian and Pacific Islander (API) women who decide to end their pregnancies.

But Arizona Attorney General Tom Horne defended the law, arguing it does not illegally discriminate against Black or API women because it forbids anyone from aborting because of the race or gender of the fetus. Instead, Horne claims, the law actually protects civil rights, because it is designed to protect minorities and “disfavored genders.”

It is that basic premise though that the NAACP and NAPAWF are challenging as discriminatory and offensive. According to the lawsuit, HB 2443 is premised on improper and illegal stereotypes that Black and API women cannot be trusted to make personal health-care decisions without scrutiny by the state, and therefore it violates the equal protection clause of the 14th Amendment.

According to the challengers and in the materials submitted in support of the complaint, during the law’s passage, proponents of the measure cited higher rates of abortion among Black women as evidence that Black women either were motivated by a discriminatory intent to prevent the birth of Black children, or were being duped into having abortions as part of a racist plot. During passage of the law, proponents also cited reports of sex-selection abortions in parts of Asia as reason for including that provision in the law, even though the state’s own statistics show no difference in birth ratio of boys and girls to Asian women as compared to other women. Both claims, the plaintiffs allege, are baseless and offensive.

The law, which contains criminal penalties, requires every physician providing abortion care to certify that the reason the woman is seeking that care has nothing to do with the race or sex of the embryo or fetus. Horne pointed to those criminal penalties and the fact that women cannot be prosecuted under the law to further the argument that the NAACP and NAPAWF do not have legal standing to challenge the law because there is no evidence that either group, or its members, are harmed by the law or that they intend to have gender or race-based abortions.

The Arizona case is an important one to watch, and not simply because Arizona is the only state to ban both race- gender-based abortions, but because it gets to the heart of the anti-choice movement’s attempts to co-opt the language and framing of civil rights to advance their anti-equality, anti-abortion agenda. As reported in the Arizona Daily Sun, in 2011 when the legislation was first pushed, Rep. Steve Montenegro (R-Litchfield Park) claimed there was evidence the Black population has a higher abortion rate than other races, calling those who perform such procedures “the people behind genocides” and the reason the law was necessary. But he did not present evidence that Black women have abortions to avoid birthing a Black baby or that providers perform abortions on Black women out of some desire to prevent the live births of more Black babies. Remove the racial stereotypes supporters of the law rely on and their logic simply falls apart, which is precisely the point made by the law’s challengers. Should Arizona succeed in convincing the court that these restrictions are necessary despite the lack of evidence and the reliance on racial stereotypes then anti-abortion activists will have successfully codified into law their vision of civil rights which is one where women of color have no agency to make their own health-care decisions.

The NAACP and NAPAWF have asked the law be permanently blocked. A ruling on that request, as well as the state’s request to dismiss the lawsuit are pending.