Federal Court Dismisses Challenge to Arizona’s Race and Sex Selection Abortion Ban

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Federal Court Dismisses Challenge to Arizona’s Race and Sex Selection Abortion Ban

Jessica Mason Pieklo

A federal court ruled civil rights groups did not have standing to challenge the 2011 law that makes it a felony for a doctor to knowingly perform an abortion based on the sex or race of the fetus.

On Thursday, a federal district court in Arizona dismissed a lawsuit filed by the American Civil Liberties Union (ACLU) and the ACLU of Arizona on behalf of the National Association for the Advancement of Colored People (NAACP) of Maricopa County and the National Asian Pacific American Women’s Forum challenging a state anti-abortion law they alleged relies on harmful racial stereotypes to shame and discriminate against Black, Asian-American, and Pacific Islander women who decide to end their pregnancies.

The law makes it a felony for a doctor to terminate a pregnancy if she knows the abortion is “sought based on the sex or race of the child or the race of the parent of that child,” the Arizona Daily Star reports. In order to comply with the law, doctors must sign an affidavit—which must be filed away and made available, when requested, to the Arizona Medical Board and prosecutors—that says, explains the Star, “they are not knowingly terminating the pregnancy because of the child’s gender or race.” If convicted, a doctor faces up to seven years in prison.

Arizona lawmakers passed HB 2443 in 2011, but reproductive rights advocates did not challenge the law until this year.

The ruling, issued by U.S. District Judge David Campbell, dismissed the lawsuit because the court determined the groups did not have standing to challenge the law. According to the court, nothing in their claims showed that any individual had suffered an “actual injury” under the law. Because the basis of the lawsuit “rests exclusively on alleged stigma and denigration issues,” which the court categorized as “generalized and abstract injuries,” the groups did not have a basis for constitutional standing necessary to move the lawsuit forward.

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This dismissal on procedural grounds is not likely the end of the challenges to the law. While the court dismissed the groups’ lawsuit on standing grounds, it did not rule on whether or not the law was constitutional, leaving open the possibility of future challenges. Any future challenge, though, will face its own difficulties. That’s because for such a challenge to move forward, either a pregnant person must first be denied an abortion under the law and then challenge the law or a doctor must be prosecuted for performing an abortion because of the race or sex of the fetus or parents. Until the groups can make such a showing, the court held, they have no right to challenge the law.

Miriam Yeung, executive director of the National Asian Pacific American Women’s Forum discussed the law in August with Rewire and explained how the law is both damaging and unnecessary. “The Asian-American population in Arizona is diverse and growing, yet lawmakers erased all that difference and instead talked about ‘those people’ when debating the bill,” Yeung said in reference to evidence that showed lawmakers relying on sex-selection abortions in parts of Asia for justification for the bill. “If these lawmakers are truly concerned with gender disparities,” Yeung said “they would work with us on issues like equal pay and education.”

In a statement released in response to the district court’s decision, Yeung expressed disappointment in the decision and vowed to push ahead. “We are disappointed the court refused to hear this case, instead choosing to dismiss it on procedural grounds,” Yeung said. “This law unfairly stereotypes Asian-American and African-American women and perpetuates anti-immigrant sentiment. The court’s denial that stigma causes real harm is misguided and frankly false. We, and the millions of women of color who live with bias every day, understand its real-world impact on our health and our livelihood,” Yeung continued. “Racial discrimination is unconstitutional, and we’re working with our legal team to determine next steps for putting an end to this bigoted law.”