PHOENIX - A coalition of rights groups filed suit Wednesday to overturn a 2-year-old law banning abortion for race or gender selection, calling the measure racist.
The suit, filed by the American Civil Liberties Union on behalf of the NAACP as well as the National Asian Pacific Women's Forum, asks U.S. District Judge Paul Rosenblatt to declare that the law is an unconstitutional infringement on the right of minority women to terminate their pregnancy without being questioned about the reason why. It also seeks an order to bar both the Attorney General's Office and the Arizona Medical Board from enforcing any part of the law.
Challengers said the 2011 law - which they say is unique in the entire country - was approved based on claims by Rep. Steve Montenegro, R-Litchfield Park, that the rates of abortions for black women were higher than for other groups.
Montenegro also cited evidence, much of it from Asian countries, that women there were far more likely to abort a female child than a male. That got extrapolated to questions about the practices of Asian women in Arizona, even though there was no evidence presented linking abortions here to gender selection.
Monica Ennis, past president of the Arizona Black Nurses Association and a member of the National Association for the Advancement of Colored People, called it "an insult to the intelligence of African-American and Asian women."
The lawsuit charges violations of the Equal Protection Clause of the U.S. Constitution.
"Its purpose is to reduce the rate or number of black and API (Asian and Pacific Islander) women who have abortions, but not women of any other race," the lawsuit says. It also charges that the law is "based on racist and discriminatory stereotypes" about both groups.
Montenegro argued that lawmakers are entitled to protect unborn children from being aborted solely because of their race or gender. He said the civil rights of these fetuses trumps the rights of women to end their pregnancies.
He acknowledged the rulings so far from the U.S. Supreme Court since the landmark 1973 ruling of Roe v. Wade have said women have an absolute right to have an abortion, at least prior to viability, without regard to a reason why - a ruling he disagrees with.
The 2011 law makes it a felony, punishable by up to seven years in prison, for a doctor to perform an abortion "knowing that the abortion is sought based on the sex or race of the child or the race of the parent of that child."
To enforce the law, it requires the woman to sign an affidavit saying she is not terminating the pregnancy because of the child's sex or race. That affidavit becomes part of her medical record, which can be accessed by the Arizona Medical Board and, ultimately, by prosecutors.
There is no record of anyone having been prosecuted under the law.
In pushing the legislation in 2011, Montenegro said there was evidence that blacks have a higher abortion rate than other races, and called those who perform such procedures "the people behind genocides."
But the legal papers filed by Dan Pochoda of the American Civil Liberties Union of Arizona said there was never any evidence during hearings or floor debate of any woman in Arizona who had an abortion with the intent to reduce the number of blacks in Arizona or in the overall national population.
Similarly, challengers said whatever the evidence from Asian countries about gender-based abortion, there was no evidence that is happening here. Further, they argued, most abortions in Arizona are performed before the time when the sex of the fetus can be determined.
Miriam Yeung, executive director of the National Asian Pacific American Women's Forum, said the legislation is based on "offensive generalizations about our community. As a result, it turns Asian-American women in Arizona into suspects."
Montenegro called it "unfortunate" others see his legislation as racist.
"We have never inferred that," he said. "What we're trying to do is to make sure … discrimination like that isn't happening by allowing an abortion, or at least standing by here in Arizona and even letting it get to the point where we allow an abortion to happen based on the baby's race or sex."
And Montenegro said nothing in his legislation is based on a premise that women of any particular ethnic group are not intelligent enough to make their own decisions.
Yeung, however, said restricting the rights of women to have an abortion is not the way to deal with the reasons some parents might want a boy instead of a girl.
"Sex-selective practices are really a symptom of 'son preference' and really a symptom of gender inequity," she said. If lawmakers are concerned about inequity, there are better ways to address the root causes of the issue, like requiring fair pay, Yeung said.