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National Association for Advancement of Colored People v. Horne

United States District Court, Ninth Circuit

October 3, 2013

National Association for the Advancement of Colored People, et al., Plaintiffs,
v.
Thomas Horne, in his official capacity as Attorney General of the State of Arizona, et al., Defendants.

ORDER

DAVID G. CAMPBELL, District Judge.

Plaintiffs sue the Arizona Attorney General, the Arizona Medical Board, and the Executive Director of the Board, challenging the constitutionality of a statute that prohibits race-based and gender-based abortions and seeking an injunction to prevent its enforcement. Doc. 1. Defendants have filed a motion to dismiss which is fully briefed. Docs. 25, 39, 42. No party has requested oral argument. For the reasons set forth below, the Court will grant the motion and dismiss this case for lack of standing.

I. Background.

In 2011, the Arizona Legislature enacted House Bill 2443 ("the Act"), titled the "Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act of 2011." 2011 Arizona Session Laws, Chapter 9. Governor Janice Brewer signed the Act into law on March 29, 2011. Doc. 1, ¶ 13; Doc. 1-1 at 2-4. The Act amends some sections of the Arizona Revised Statutes by adding A.R.S. §§ 13-3603.02 and 36-2156. Doc. 1, ¶ 14; Doc. 1-1 at 2-4. The new § 13-3603.02 provides:

A. A person who knowingly does any of the following is guilty of a class 3 felony:
1. Performs 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.
2. Uses force or the threat of force to intentionally injure or intimidate any person for the purpose of coercing a sex-selection or race-selection abortion.
3. Solicits or accepts monies to finance a sex-selection or race-selection abortion.
B. The attorney general or the county attorney may bring an action in superior court to enjoin the activity described in subsection A of this section.
C. The father of the unborn child who is married to the mother at the time she receives a sex-selection or race-selection abortion, or, if the mother has not attained eighteen years of age at the time of the abortion, the maternal grandparents of the unborn child, may bring a civil action on behalf of the unborn child to obtain appropriate relief with respect to a violation of subsection A of this section. The court may award reasonable attorney fees as part of the costs in an action brought pursuant to this subsection. For the purposes of this subsection, "appropriate relief" includes monetary damages for all injuries, whether psychological, physical or financial, including loss of companionship and support, resulting from the violation of subsection A of this section.
D. A physician, physician's assistant, nurse, counselor or other medical or mental health professional who knowingly does not report known violations of this section to appropriate law enforcement authorities shall be subject to a civil fine of not more than ten thousand dollars.
E. A woman on whom a sex-selection or race-selection abortion is performed is not subject to criminal prosecution or civil liability for any violation of this section or for a conspiracy to violate this section.
F. For the purposes of this section, "abortion" has the same meaning prescribed in § 36-2151.

Doc. 1-1 at 3.

The new § 36-2156 provides:

A person shall not knowingly perform or induce an abortion before that person ...

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