A trans­vagi­nal ultra­sound of a devel­op­ing fetus at 5 weeks, from the Advanced Fer­til­ity Clin­ics of Chicago. The orig­i­nal cap­tion to this image says: “The fetus is too small to be seen this early in preg­nancy”. The black hole is the sac con­tain­ing the devel­op­ing embryo and is 6.25 mm (about 1/​4″) in diam­e­ter, or about the size of a pea.

In pre­vi­ous arti­cles, I’ve dis­cussed how the so-​​called Repub­li­can War on Women got started, how the meme caught fire, and how the Repub­li­can reac­tion to the fight of Chi­nese dis­si­dent Chen Guangcheng crit­i­cizes some of the same behav­iors that Republican-​​controlled state leg­is­la­tors have exhib­ited over the past year.

In par­tic­u­lar, one leg­isla­tive approach that has gained increas­ing pop­u­lar­ity in the last year are laws that man­date an ultra­sound of preg­nant women seek­ing an abor­tion. Before five weeks ges­ta­tion (i.e., about three weeks after the first missed period), abdom­i­nal ultra­sounds are not fea­si­ble. These laws man­date ultra­sounds as early as three weeks ges­ta­tion pur­port­edly to show a woman her child’s “beat­ing heart” (actu­ally a col­lec­tion of rhythmically-​​contracting mus­cle cells that will become a heart in time). Since the only such ultra­sound that can be per­formed at three weeks ges­ta­tion is a trans­vagi­nal ultra­sound, these laws essen­tially require a woman to undergo a med­ically unnec­es­sary inva­sive pro­ce­dure in order to get an abor­tion. North Car­olina, Texas and Okla­homa have the most strin­gent require­ments.

For exam­ple, the North Car­olina law man­dates a trans­vagi­nal ultra­sound such as the one shown here:

The … law pro­hibits a woman from get­ting an abor­tion until 24 hours after the doc­tor who will pro­vide the abor­tion (or a “qual­i­fied tech­ni­cian”) per­forms an ultra­sound on the woman and takes steps to show and describe the ultra­sound images to the preg­nant woman. The law requires the abor­tion provider to place the ultra­sound images where the woman can see them and describe the images to the woman in detail, regard­less of her wishes.

Judge Cather­ine Eagles

The North Car­olina law has been chal­lenged in Stu­art et al. v. Huff which is now before the Dis­trict Court (Mid­dle Dis­trict of North Car­olina). It is likely the case will soon be appealed to the Fourth Cir­cuit Court which has juris­dic­tion over North Carolina.

In the Dis­trict Court case, Judge Cather­ine Eagles doesn’t think much of what she calls “speech-​​and-​​display” require­ments, find­ing “no med­ical pur­pose” in them.

The First Amend­ment gen­er­ally includes the right to refuse to engage in speech com­pelled by the gov­ern­ment. … It is undis­puted that the Act com­pels content-​​based speech by providers; it requires providers to orally and visu­ally con­vey spec­i­fied mate­r­ial about the fetus to their patients. The mes­sage is com­pelled regard­less of a patient’s indi­vid­ual cir­cum­stances or con­di­tion and regard­less of the provider’s med­ical opin­ion. The mes­sage is required even when the provider does not want to deliver the mes­sage and even when the patients affir­ma­tively do not wish to see it or hear it.

(Judge Eagles is also hear­ing John Edwards’ case.)

Mean­while, the U.S. Court of Appeals for the Fifth Cir­cuit has upheld the con­sti­tu­tion­al­ity of a sim­i­lar Texas law.

Judge Edith “Shut Up” Jones

Recall that the ultra­con­ser­v­a­tive Fifth Cir­cuit is the court that required Attor­ney Gen­eral Eric Holder to com­plete a PPACA-​​related home­work require­ment. One might even call the mem­bers of the court “activist judges”. Judge Jones famously told the more lib­eral Judge James Den­nis to “shut up” dur­ing a Sep­tem­ber pro­ceed­ing. Judge Jones thinks the Texas law is jes fine. In the Fifth Circuit’s opin­ion in Texas Med­ical Providers et al. v. Lakey et al., Judge Jones wrote:

The required dis­clo­sures of a sono­gram, the fetal heart­beat, and their med­ical descrip­tions are the epit­ome of truth­ful, non-​​misleading information.

The Fifth Cir­cuit denied an en banc hear­ing for an attempted appeal in Texas Med­ical Providers, so the peti­tion­ers must ask for the Supreme Court to grant cer­tio­rari. If a split devel­ops between the Fourth and Fifth Cir­cuits, then the Court may have to act. They may also choose to act given the national impor­tance of such laws.

Most of the states with these restric­tive laws also man­date a wait­ing period, such as the 24-​​hour North Car­olina wait after the ultra­sound. A Utah law which went into effect Mon­day man­dates a 72 hour wait­ing period for an abor­tion. Let’s exam­ine the time­line. A women misses her period, and then goes to a drug­store and obtains a home preg­nancy test kit. Very few such kits will give an accu­rate read­ing this early in a preg­nancy. Most kits will not detect preg­nancy until about a week after the first missed period. Then she attempts to sched­ule an abor­tion, at the very first sign that she is preg­nant, but is told to wait 72 hours and that because of the wait she is now required to be probed with a vagi­nal ultra­sound and can­not turn away from the ultra­sound dis­play or the ver­bal descrip­tion of the ultra­sound pro­vided by the doc­tor. That is, even with the ear­li­est pos­si­ble visit to an abor­tion provider, a woman will be required to undergo the inser­tion of a vagi­nal probe for no med­ically nec­es­sary pur­pose while she is forced to lis­ten to infor­ma­tion she may or may not want to hear spo­ken by a doc­tor or tech­ni­cian who may or may not want to say the man­dated words.

These new state-​​level laws rep­re­sent, for me, a deeply trou­bling devel­op­ment. The Con­ser­va­pe­dia entry on “Oba­macare” states:

There will be an over­sight board where the gov­ern­ment looks at what should and shouldn’t be given to patients, regard­less of med­ical need.

Yet these same Repub­li­cans sup­port a government-​​mandated pro­ce­dure and accom­pa­ny­ing infor­ma­tion which will be given to patients regard­less of med­ical need.

If the Supreme Court grants cer­tio­rari, it will be an inter­est­ing bat­tle of principles.

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