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Civil rights groups say abortion restriction stigmatizes minorities

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An attorney for civil rights groups asked a federal appellate court Wednesday to give them a chance to prove that an abortion restriction they say is aimed at minorities is unconstitutional.

Alexa Kolbi-Molinas of the American Civil Liberties Union told the justices the purpose of the 2011 law “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 given 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 also is 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 claiming that “evidence shows that minorities are targeted for abortion and that sex-selection abortion is also occurring in our country.”

There also were 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 that Asian parents are choosing 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.
Tuesday’s appellate court hearing is a bid by the ACLU to give challengers a chance to present evidence that there are individuals who have been stigmatized by the law. And she said that is a recognized claim under federal discrimination laws.

Clifton, however, said it might be one thing if challengers could show that legislators intended to apply the law only to certain women seeking abortions.
“But there’s no sign of that,” Clifton he said.

“What there’s a sign of is that some people have notions that we might describe as backwards or discriminatory, or having a perception that certain people might do things which we disfavor,” the judge continued. “I’m not sure that’s an intent to discriminate.”

Judge John Owens appeared to agree that feeling stigmatized by a law does not provide a right to use. He said that would be like allowing someone who is Jewish to challenge a vote by a city council to refuse to buy products from Israel based on a conclusion that country was engaging in apartheid.

Judge William Smith suggested there are other — and perhaps better — ways to challenge the law.

For example, he pointed out that the law requires a doctor to sign an affidavit that the abortion is not being performed because of the race or gender of the child. Smith said doctors who are forced to do that could say it illegally interferes with their relationship with their patients.

A woman who is denied an abortion under the law also would have standing to sue, as would a doctor prosecuted for performing the procedure.

The judges gave no indication when they will rule.

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