Academic

[About once every six months, I blog on something completely out-of-the-box, for which I will probably experience regret or remorse.  I can see Gordon wince as I type.  This is one of those times.]

Arizona is no stranger to controversy over passing uncommon laws, and this week is no exception.  Arizona has passed a law criminalizing an otherwise legal abortion if the abortion is motivated by the fetus' gender or race.  (The Susan B. Anthony and Frederick Douglass Prenatal Nondiscrimination Act of 2011 -- a pretty gutsy use of names of the deceased for your own purposes.)  Here is the justification:  "Backers of the measure said the ban is needed to put an end to sex- and race-related discrimination that exists in Arizona and throughout the nation. They insist the issue is about bias rather than any broader stance on abortion."

I am going to throw the flag here.  Not because of any strong feelings I have about a woman's right to an abortion for or against, or any insight I have into the law's constitutionality, but because of strong feelings I have about logic.

1.    The law is obviously about abortion, not about gender bias or racial bias.  I don't see a companion law criminalizing seeking to adopt a child of a particular gender or race.  There doesn't seem to be any mention of use of techniques of either the high-tech or old wives' tale varieties to attempt to influence the gender of a hoped-for fetus.  And of course, we have no laws requiring individuals to be color-blind when choosing a mate, or even a sperm donor.  Therefore, if sex-selection or race-selection is permissible in cases of adoption, artificial insemination or plain old coupling, then this law seems pretty much just about abortion.  (Also, the law doesn't mention an equally troubling scenario of a woman postponing the choice of whether to keep a baby or put it up for adoption depending on what race the child is.)

2.      This law seems impossible to enforce.  How would a prosector prove that a woman had an abortion due to sex-selection or race-selection?  The mere fact that the woman had an ultrasound prior to the abortion?  (Note that in eighteen states, legislators want women to be required to see an ultrasound prior to having an abortion.)  Won't any woman have either a mixed motive or a facially neutral explanation?  Would we have to use circumstantial evidence (Married, well-off, with four boy/girl children and the fetus was the same gender)?  And what about race?  Can race show up on an ultrasound?  (I had a "4-D" ultrasound, and my baby looked gold.  I decided having a gold baby was fine with me.)  I suppose that the situation we are looking for is one where a woman has more than one partner or various races, but possibly prefers to stay in a relationship with one of the partners, who is Race A.  If woman finds out that baby is of Race B, then she jeopardizes the relationship, so she aborts.  I would assume this would require some sort of DNA test whereby she can ascertain the actual father?  Perhaps race was just thrown in here to make the law look more "discrimination-y" than "anti-abortion-y."

3.    This law seems impossible to enforce, Part 2.  Discrimination suits, either in employment or in jury selection or possibly other areas, are hard suits to prove.  Employers always have other reasons for firing/hiring, and attorneys always have other reasons for striking/challenging jurors.  So, to make a claim forceful, the accuser has to point to patterns of discrimination -- out of the last 30 people hired/fired, out of all the jurors you struck in the jury pool, etc.  Hopefully we won't have too many cases of women with multiple abortions, so I'm not sure how a pattern of discrimination could ever be shown.

4.    This law seems impossible to enforce, Part 3.  The law criminalizes the performing of the abortion by the doctor.  The discrimination is on the part of the mother.  I would think the doctor would have to know the reason.  Willful blindness?  Seems like some messy cases on the horizon.

5.    The law encourages frivolous lawsuits.  The father or the maternal grandparents in some cases may bring a civil suit for damages against the doctor, but not the mother.  I try not to be cynical, but there could be some fraud opportunities there.

6.      Is this really a problem in Arizona?  Yes, this type of discrimination may happen in other countries where abortion is easily obtained after the gestational age where gender is apparent and where certain genders are economically preferable.  In the U.S., we have no culture where sons or daughters are uniformly more advantageous.  And, in many states it is more difficult to have later abortions.  Apparently, no statistics of this phenomenon in the U.S. were proffered as evidence.

7.    I'm sure there are Constitutional Law issues here, but I'm already outside my expertise.

An identical bill with the same name was introduced into the U.S. House of Representatives in 2009.

Oh, well, back to corporate law.