Arizona Abortion Ban: Gender- and Race-Based Abortion Ban Discriminates, But Against Who?

In the past few years, Arizona has developed a reputation as a strongly anti-abortion state, passing a variety of laws meant to restrict funding for abortions and restricting women’s reproductive decisionmaking rights. One such law, banning abortions based on the race or sex of the child, is the subject of a new ACLU lawsuit. While I consider myself a supporter of a woman’s reproductive rights, this particular case troubles me.

The groups suing, the National Association for the Advancement of Colored People's Maricopa County branch and the National Asian Pacific American Women's Forum, argue that the abortion ban is based on a “racial stereotype” and “discriminate[s] against women of color, Asian-American and African-American in particular,” thus violating the Fourteenth Amendment’s equal protection clause. The stereotypes cited in the lawsuit include the risk to female babies born to Asian immigrants whose cultures value male children, and a belief that black couples were aborting black babies to “de-select” their own race.

Initially I was struck by how ridiculous the notion is that African-Americans would “de-select” their own race since, after all, isn’t a black couple bound to have black children almost each and every time? So disregarding that argument, the second stereotype the ACLU believes encouraged the law, that male-preferring Asian cultures will lead to aborted women, is comprehensible but deeply flawed. In fact, a survey by South Korea’s Institute of Child Care and Education found, "Thirty-eight percent of mothers-to-be wanted a daughter, while 31% said they preferred a son,” and “among fathers-to be, 37% wanted a daughter and 29% a son.”

China’s one-child policy, introduced in 1978 and still enforced in some areas, is a significant reason for which giving birth to a male was and continues to be preferred for economic reasons … in China. But in Arizona, where parents have the right to determine the size of their family, there is no reason to suggest that parents would have a preference as to the gender of their child.

Republican Rep. Steve Montenegro, a co-sponsor of the 2011 law, explains that race has nothing to do with this law whose sole purpose is to prevent discrimination: "We don't want to discriminate based on somebody's sex or somebody's race … This has to do with protecting the dignity of life and not allowing abortions to be performed based on the sex of the baby or the race of the baby. That's what this is about."

To boil down both arguments, we are left to decide how we value the fetus not being aborted based on race or gender versus the right of parents not to be discriminated against pursuant to the Fourteenth Amendment. My first instinct was to support the ban, because an abortion coming after a gender is identified — either by ultrasound at the 18-week mark, or by amniocentesis after 16 weeks — should occur only if the mother’s life is in danger and probably only if her odds of survival thanks to an abortion are greater than the child’s odds of surviving birth. By that point in pregnancy, unwanted pregnancies would already have been aborted.

However, implicit in this conclusion that the fetus should not be discriminated against is the belief that the fetus has some basic set of rights. And if that’s the case, then I should be against all abortions at least after the 16th week, but I am not.

It is difficult to reconcile my belief that race and gender are inadequate reasons to allow an abortion with my basic belief in women’s reproductive rights, so let me consider a different approach. It could be argued that even if the legislators had stereotypes in mind when drafting and passing the bill, and the stereotypes are false, then the bill itself is not discriminatory, since all parents will react to the bill the same way.

That a stereotype-based law should not matter if the stereotypes are false seems like a reasonable conclusion. However, here another conflict arises, the Fourteenth Amendment’s equal protection clause. “The long history of jurisprudence ... says laws passed with a discriminatory intent and racial stereotypes cannot stand, period. Cannot stand," said Dan Pochoda, an ACLU lawyer.

It appears that, not surprisingly, there is no easy answer to the question. The ACLU has a strong case and if it can prove that the law was passed with discriminatory intent then it will likely be struck down. Regardless of the outcome of the suit, however, these issues are important in driving us to think critically about how we can reconcile our beliefs and those of our neighbors with the law.

The 2011 Arizona law in question is the only state law in the nation that bans race-based abortions, and only three other states, Illinois, Pennsylvania, and Oklahoma, ban sex-based abortions.

What is your take on the ban and ACLU lawsuit?