Appeals court asked to declare Arizona abortion law illegal

PHOENIX — An attorney for civil rights groups asked a federal appellate court Wednesday to give them a chance to prove that a state abortion restriction is aimed at minorities and unconstitutional.

Alexa Kolbi-Molinas of the American Civil Liberties Union told the justices the purpose of the 2011 law banning abortions based on race or sex of the child “was to scrutinize the reasons that black and Asian women in Arizona have abortions.”

She said that makes the law an illegal form of discrimination. And that, she said, “stigmatizes” women from her clients, the NAACP and the National Asian-Pacific American Women’s Forum.

Appellate Judge Richard Clifton said Arizona lawmakers may have adopted the law because of some “backwards” view of why certain women terminate a pregnancy. But he and his colleagues on the three-judge panel indicated they were not convinced any of that makes the law illegal — or even give the groups the right to sue.

The law makes it a felony, punishable by up to seven years in prison, for a doctor to terminate a pregnancy “knowing that the abortion is sought based on the sex or race of the child or the race of the parent of that child.”

There is no record of anyone having been charged under the law or any woman being denied an abortion.

And Clifton said there is also no evidence that the law is being applied in a discriminatory manner targeting only certain groups.

But Kolbi-Molinas argued that does not matter.

She cited language in the bill which claimed that “evidence shows that minorities are targeted for abortion and that sex-selection abortion is also occurring in our country.”

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There were also statements by Rep. Steve Montenegro, R-Litchfield Park, sponsor of the legislation, that he has information “that there are targeted communities that the abortion industry targets.” As proof of targeting, Montenegro said there is a higher rate of abortion among minorities.

And Montenegro cited studies which he said show that Asian parents are choosing to to terminate pregnancies after learning the fetus is female.

All that, Kolbi-Molinas told the judges, proves it was passed with a discriminatory intent.

Clifton, however, questioned whether it was possible for a court to determine the intent of those who proposed and voted for the measure.

He said that would require judges “to go into the heads of legislators who voted in favor of the law — and not necessarily all the legislators.”

Kolbi-Molinas conceded the difficulty of the task. But she said her clients should at least be able to try.

So far they have not had that chance.

In a ruling last year, U.S. District Court Judge David Campbell threw the case out of court after concluding there is nothing in the claim that shows any individual has suffered a personal injury because of what the Legislature enacted, beyond psychological consequences.

And that, he said, means they have no right to challenge the law.