Arizona court bans abortions based on race and sex: Do reproductive decisions discriminate?

A federal appeals court refused to hear more on a case against a law that bans race- and sex-motivated abortions in Arizona Tuesday.

The case represented a debate around a whole cluster of modern life's perplexing questions: abortion, race, gender, and social inequality.

The National Asian Pacific American Women’s Forum and an Arizona chapter of the National Association for the Advancement of Colored People (NAACP) brought a suit against the Arizona law passed in 2011, the Associated Press reported.

The law allows felony charges to be filed against anyone who performs, finances, or coerces a woman into receiving a sex- or race-based abortion. A woman's husband or parents may file a civil suit "on behalf of the unborn child to bring appropriate relief," but a woman cannot be charged criminally or civilly for having the abortion.

The law states the legislation is based on "evidence show[ing] that minorities are targeted for abortion" and sex-selective abortion occurs in the United States and refers to such abortions as "discrimination."

The groups bringing the suit wrote in the case that the law itself is race-neutral, but the legislative debate leading to the law's passage invoked false stereotypes that black women abort pregnancies at a higher rate out of racism.

The Arizona Republic reports:

Some Asian cultures value male children, and Republican Arizona lawmakers were concerned that female babies would be aborted as more Asians immigrated to the state, according to legislative history cited in the lawsuit. The high rate of abortions in the African-American community was cited as proof blacks were using abortion to “de-select” their own race, the suit said.

"On its face, it doesn’t look discriminatory, but when you look at the debates the Legislature had [while discussing it in 2011], it’s clear that it’s ugly ... and based on racist and discriminatory [premises]," Dan Pochoda, a lawyer that the American Civil Liberties Union (ACLU), which provided legal counsel on the case, told the Pheonix New Times.

In presenting their case, lawyers with the ACLU used records from the legislature's debates about the law. Some legislators cited statistics on high abortion rates for minorities and the problems of female infanticide in India and China, then assumed Arizona women might have abortions with sexist and racist motivations, reported Miriam Wasser for the Pheonix New Times.

One of the most significant impacts of Arizona's law is that it has no tangible impact so far. This is not just worth noting, it is so significant the court ruled it was grounds to toss out the case. Since the NAACP and ACLU admitted no woman had been denied medical care or was likely to, judges said they could not claim the law's offensive purpose was hurting anyone.

The judges said a woman denied an abortion because of the law or a doctor charged with a felony for performing an abortion would have the right to sue, Howard Fischer Capitol Media Services reported.

To the law's proponents, including Arizona State Rep. Steve Montenegro (R), this is the goal.

"No one should be discriminated against by being subjected to an abortion because they are going to be born the ‘wrong’ gender or the ‘wrong’ race,” he told the Arizona Republic.

The law is "disingenuous" because it purports to stop discrimination while hurting the very women it should serve by limiting their reproductive options and abortion access, Dorothy Roberts, a professor at the University of Pennsylvania Law School who researches issues of bioethics and race, told The Christian Science Monitor.

"It seems to prohibit discrimination on the basis of race and gender, but in fact it would be regulating women's decision-making on the basis of race and gender," she says.

Ms. Roberts says she opposes discrimination that pressures women against having children of certain races, genders, and even disabilities in which "certain women's reproductive decisions are valued more than others and certain children are valued more than others," but she also opposes laws that restrict women's access to abortion.

She said she had not followed the Arizona law specifically but was familiar with others like it. Seven other states have laws banning sex-based abortion, but only Arizona includes a race component.