ACLU, NAACP Seeking to Overturn Arizona's 'Racist' Ban on Race- and Sex-Based Abortions

July 24, 2014 - 3:31 PM

9th Circuit Court of Appeals seal
(CNSNews.com) The American Civil Liberties Union (ACLU) asked the Ninth Circuit Court of Appeals last week to reconsider its lawsuit against a 2011 Arizona law - the first of its kind in the U.S. - that bans race- and gender-based abortions, characterizing it as “racist and offensive.”

The ACLU claims that the The Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act of 2011 “relies on harmful racial stereotypes to stigmatize, shame, and discriminate against Black women and Asian American and Pacific Islander (AAPI) women who seek abortions.”

However, Steven Aden, senior legal counsel with the Alliance Defending Freedom (ADF) in Arizona, which has filed an amicus curiae brief on behalf of Dr. Alveda King, the National Black Pro-Life Union and others urging the appellate court to uphold the law, told CNSNews.com that the lower court made the right decision in tossing out the lawsuit.

“An overwhelming amount of documented evidence shows that the problem of sex- and race- based abortion is increasing not only around the world, but also in the U.S.,” Aden said. “This is a just law designed to prevent that horrific practice from taking place in Arizona and the court was right to throw out the challenge to it.”

Signed into law by Arizona Gov. Jan Brewer, the law states that a person may not knowingly perform an abortion “based on the sex or race of the child or the race of a parent of that child.”

This law mainly applies to abortion providers, as it states that “a woman on whom a sex-selection or race-selection abortion is performed is not subject to criminal prosecution or civil liability for any violation of this section.”

The ACLU filed a lawsuit seeking a permanent injunction against enforcement of the Act last May on behalf of the Maricopa County NAACP and the National Asian-Pacific American Women’s Forum (NAPAWF).

The group argued that the law was “based on nothing more than invidious racial stereotypes about the reasons minority women seek abortion care,” adding that “the Act intentionally singles out Black and API women and stigmatizes their abortion decisions.”

The ACLU’s complaint references arguments made during the legislative debate, including a statement by State Sen. Nancy Barto (R-Phoenix) that “we are a multicultural society now and cultures are bringing their traditions to America that really defy the values of America, including cultures that value males over females.”

The group claimed that this and other arguments mirror “the racist and xenophobic language that drove Anti-Asian measures in the late 19th and early 20th century in this country.”

However state Rep. Steve Montenegro (R-Litchfield Park), who introduced the 2011 bill, told Life Site News that the bill does not single out black or Asian mothers.

"The purpose of this bill is to prevent discrimination,” Montenegro said. “We are trying to stop the heinous discrimination that ends with the murder of a baby inside the womb because she is going to be born the wrong gender or the wrong race.”

U.S. District Court Judge David Campbell threw out the case last October, saying that the complaint focused “not on the language or effect of the Act – its language is admittedly race neutral – but on the reasons for the act’s passage.”

He concluded that the ACLU. NAACP and NAPAWF lacked legal standing to sue because they could not prove any harm to individuals beyond “the psychological consequences presumably produced by observation of conduct with which one disagrees.”

The ACLU appealed the decision in March. Last week, it asked the appellate court to remand the case back to the district court.

"When the government passes a law reducing its citizens to ugly racial stereotypes, it inflicts on them one of the most serious constitutional injuries recognized in our legal system," said ACLU staff attorney Alexa Kolbi-Molinas.

"We are hopeful the Ninth Circuit will reverse the lower court’s decision and allow NAACP and NAPAWF to have their day in court."

But Aden said he expects “that that decision will be upheld on appeal and that Arizona will lead the way for the rest of the country in prohibiting this barbaric and discriminatory practice.”

“This is a civil rights law, and it’s sad to see anyone pretend that the international and growing problem of gender and race based abortion doesn’t exist. They should be up in arms about the practice,”  Aden told CNSNews.com.

“When the cover of the Economist magazine has a story about the millions of missing girls in the world due to gender selection abortion, it stuns me that anyone could have their head in the sand on this issue the way that the NAACP and the other groups do in this case. I hope they will reassess and come to the right position.”

“Aborting babies because they’re girls or because of their race is reprehensible and it saddens me that anyone would defend that practice,” Aden added.