PHOENIX -- Saying the interests of Attorney General Tom Horne may not align with theirs, Maricopa County Attorney Bill Montgomery and a religious-based law firm want federal court permission to defend a state law that bans abortion to select the gender or race of a child.
In legal filings Monday, the lawyers told a federal judge that they have a perspective about why the 2-year-old law is legal that Horne may not share. More to the point, they contend that the interests of Montgomery and state Rep. Steve Montenegro, R-Litchfield Park "might not be adequately represented' if Horne defends the case.
Horne said he has not decided whether he will allow others to take the lead in defending the law. But he has been reticent to be at the fore in defending other recent legally questionable changes in abortion laws that have wound up in court.
He let Montgomery defend a ban on abortion at 20 weeks, a move struck down by the 9th Circuit Court of Appeals. And the Alliance Defending Freedom, a privately financed anti-abortion group, is defending a law allowing Arizona to cut Medicaid family planning funds to Planned Parenthood because that organization also offers privately funded abortions, a contention already rejected by a trial judge.
The 2011 law makes it a felony, punishable by up to 7 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.' Challengers, including the NAACP and the National Asian Pacific Women's Forum, contend the law, believed to be unique in the country, is an unconstitutional infringement on the right of minority women to terminate their pregnancy without being questioned about the reason why.
Montgomery and attorney Casey Mattox say of the ADF the law is "race and gender neutral' and does not violate constitutional equal protection provisions. They also said lawmakers "have the right and the duty to enact laws that protect all citizens, born and unborn, from invidious discrimination based on race or gender.'
But to make that case in court, they first must convince a judge they should be allowed to defend the law.
Montgomery said allowing him to intervene in the case for Maricopa County residents will allow him to "protect and preserve a statute pass for their protection.' He said that, as the person who would be prosecuting doctors who violate the law, his approach to defending the law "is sometimes different' than Horne who does not have that role.
And Mattox said there is a "difference of interests' between Horne, representing the state, and what he and Montgomery believe is the best way to do that.
He said Horne might simply try to defend the law as a permissible state regulation of abortion. That would require addressing the fact that courts, since the landmark 1973 Supreme Court ruling in Roe v. Wade, have said women have an absolute right to terminate a pregnancy prior to viability of the fetus without providing a reason.
But Mattox said there are broader issues, including the motives of Montenegro is sponsoring the measure and why the Frederick Douglass Foundation, an anti-abortion group he also represents, supports the law. Mattox noted that the challengers are making that an issue.
For example, Monica Ennis, past president of the Arizona Black Nurses Association and 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 also says the purpose of the law is to reduce the rate or number of black and Asian women who have abortions, "but not women of any other race.' And it charges the law is "based on racist and discriminatory stereotypes' about both groups.
"The plaintiffs have made virtually their entire case that the motivations for this law were somehow less than honorable,' Mattox said. Mattox said that is of "great concern' to Montenegro and the Fredrick Douglass Foundation whose members "find themselves being told that a law that they advocated for because it would protect African-Americans from discrimination is somehow motivated by discriminatory ideas.'
In pushing the legislation in 2011, Montenegro said there was evidence that blacks have a higher abortion rate than other races. And he said those who perform such procedures are "the people behind genocides.'
He 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.
In the legal papers filed Monday, Montgomery and Mattox contend some of the statements attributed to Montenegro and other supporters were "incomplete, out-of-context and misrepresented' what actually occurred.
Alexa Kolbi-Molinas, an attorney with the American Civil Liberties Union, said when the lawsuit was filed black and Asian-American women have the right to make these decisions "without being cast as villains or as women who the state must monitor because they cannot be trusted to make this decision on their own.'
Montenegro called it "unfortunate' that others would see his legislation as racist, saying nothing in his legislation is based on the premise that women of any particular ethnic group are not intelligent enough to make their own decisions.