Wednesday, June 12, 2013
Guest Blogger Professor Jessie Hill - Regulating Reasons:The ACLU Challenges Arizona’s Ban on Sex- and Race-Selective Abortion (Part I)
In my earlier post on the ACLU lawsuit challenging the Arizona state law that criminalizes performing an abortion for race-selection or sex-selection, I discussed the plaintiffs’ choice to pursue an equality claim, rather than a privacy claim.
There is also second, related issue I wanted to discuss: the plaintiffs’ standing to pursue this claim. The plaintiffs are the Maricopa County Branch of the National Association for the Advancement of Colored People (NAACP) and the National Asian Pacific American Women’s Forum (NAPAWF). Because the theory of the case, as I described in my prior post, is that the law stigmatizes and stereotypes the reproductive choices of black and Asian women based on their race and ethnicity, it makes sense that this challenge would be brought by groups that promote the interests of those racial and ethnic groups.
But what is the plaintiffs’ injury-in-fact? It seems that the stigma itself is the only possible injury that can be claimed, but this is a highly uncertain basis for standing. It is often (though not consistently) considered to lack the concreteness and particularity that must characterize injury-in-fact under the Court’s increasingly strict standing jurisprudence.
It is important, moreover, to note a couple of things. First, the law imposes its prohibitions and penalties only on physicians, not on women seeking race- or sex-selective abortions. Thus, though physicians are subject to the act’s penalties, they are not among the plaintiffs, and so they are not asserting third-party standing on behalf of their patients. Second, the plaintiffs obviously do not indicate any desire to engage in race- or sex-selective practices, and the complaint specifically asserts that the NAPAWF opposes sex-selection bans but also advocates and educates around the issue of sex-selection abortion. Thus, it is clear that no one challenging the law actually seeks to engage in the conduct that is being prohibited. (For obvious reasons, such an individual would not be the most desirable plaintiff.) Nor can the plaintiffs make any argument that their injury-in-fact is that they are being chilled from making certain reproductive choices by the threat of criminal penalties, since they are not subject to such penalties under the law (and in fact are specifically exempted from criminal prosecution).
Essentially, the injury that the plaintiffs are asserting, therefore, is purely an expressive one—that the law expresses a negative stereotype about Asian and black women. Of course, they may also be claiming that their reproductive choices are more likely to be questioned by their physicians—a point that would support the disparate impact required in order to make out an Equal Protection claim. But this harm, too, is probably too speculative to work for standing purposes.
One might claim that the real injury is that the law prohibits women from choosing abortion for whatever reason they believe is appropriate—that it infringes on their reproductive autonomy in the most basic sense. But again, this is a claim that sounds in the right to privacy, not the right to equal protection. The law on its face regulates reasons for all women, not just minority women.
In conclusion, though this is an important and worthy challenge to the law, I suspect it will be an uphill battle.