The American Civil Liberties Union must prove in court on Wednesday that race-based abortion bans cause harm.
The case, NAACP & NAPAWF v. Tom Horne, began in 2011, when Arizona passed one such ban. The law requires every abortion provider to complete an affidavit stating that the woman seeking abortion care did not do so out of gender or racial bias. It also makes it a felony for a doctor to knowingly perform an abortion on the basis of race or sex.
Both the NAACP and the National Asian Pacific American Women’s Forum (NAPAWF) oppose the bill, which they say targets Black and Asian-American women and penalizes health-care providers who serve communities of color.
The sponsors of the bill argued for its passage by using racial stereotypes about women of color, said Miriam Yeung, executive director of the NAPAWF, in a press call. Legislators claimed that the high rate of abortion in the Black community proves that Black women are terminating their pregnancies because of racial bias. The anti-choice lawmakers who pushed the law repeatedly warned that Asian-American women will terminate pregnancies if the fetus is a girl.
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“African-American babies are now aborted at five times the rate of White babies to the point that nearly 50 percent of Black babies are aborted,” one state senator claimed, according to the original complaint. Anti-choice activists have often made similar assertions, while erasing broader context and providing little support for policies that would improve Black women and children’s health.
Although statistics show that there’s no discrepancy in gender ratios of births by Asian-American women and women of other races in Arizona, advocates note, anti-choice legislators repeatedly expressed concern that Asian-American women are likely to terminate pregnancies based on the gender of the fetus.
“We know that people from those countries and from those cultures are moving and immigrating in some reasonable numbers to the United States and to Arizona,” state Sen. Rick Murphy (R-Peoria), vice chair of the Senate Committee on Healthcare and Medical Liability Reform, said to explain his vote, according to the complaint. “And so with that in mind, why in good conscience would we want to wait until the problem does develop and bad things are happening and then react when we can be proactive and try to prevent the problem from happening in the first place?”
Arizona is the only state with both a race- and sex-selective abortion ban, although seven states have banned sex-selective abortion, according to the Guttmacher Institute. Similar bills at the federal level have failed to pass.
Advocates at the NAACP and NAPAWF say Arizona’s law, titled the Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act of 2011, employs the language of civil rights but in fact limits the civil rights of women of color.
“We know a wolf in sheep’s clothing when we see one,” Yeung said in the press call.
The ACLU filed suit against Arizona in 2013, asserting that the act violates the Equal Protection Clause of the 14th Amendment by subjecting women of color to increased scrutiny and stigma solely because of their race. The district court dismissed the case on the grounds that stigma doesn’t cause sufficient injury to bring a suit.
The ACLU appealed, and on Wednesday will argue its case in front of a Ninth Circuit judge in San Francisco. The goal is to prove that stigma and discrimination cause actual harm.
A group of social psychologists filed an amicus brief on behalf of the ACLU, claiming that discrimination has real consequences, including “scientifically documented damage to the social, emotional, cognitive, economic, and health-related well-being of the members of stigmatized groups.”
The law operates to “individually target and stigmatize women who have abortions and make abortion seem ugly,” said Alexa Kolbi-Molinas, the lead attorney for the ACLU, in the press call. “That’s what the goal was, and that’s the basis on which we’re suing.”