Groups lack standing to challenge Arizona abortion law, Ninth Circuit rules

NAACP v. Horne, No. 13-17247 (9th Cir. Dec. 15, 2015).

In 2011, Arizona passed a law prohibiting anyone from performing an abortion knowing that the abortion is “sought based on the sex or race of the child or the race of a parent of that child,” and from coercing or accepting pay for a sex- or race-selective abortion. 

African- and Asian-American advocacy groups filed suit against Arizona. These groups assert that Arizona legislators passed this abortion law based on negative racial stereotypes about the reasons that black or Asian women may decide to end a pregnancy. As the plaintiffs see it, the legislators thought that black women are likely to discriminate against black fetuses—or are likely to be manipulated into having race-selective abortions—and that Asian women are likely to discriminate against female fetuses. So, according to the plaintiffs, the legislation is based on invidious stereotypes and is itself discriminatory.

The Ninth Circuit rules that these advocacy groups don’t have standing to pursue their claims. The advocacy groups claim that the Arizona law stigmatizes their members, but the Supreme Court has said that stigma isn’t enough by itself to create standing. The groups’ members must have been personally denied equal treatment, and here, the court says, the groups haven’t alleged that kind of personal injury.