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.
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.
Meanwhile, the U.S. Court of Appeals for the Fifth Circuit has upheld the constitutionality of a similar Texas law.
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.
- The “I Told You So” Laws (bigthink.com)
- Physicians should rise up against mandated transvaginal ultrasounds (kevinmd.com)
- Transvaginal ultrasound and the “War on Babies” (fellowshipofminds.wordpress.com)
- A Doctor’s Manifesto for Fighting Transvaginal Ultrasounds [Roe V. World] (jezebel.com)
- Ballad of the Virginia mandatory transvaginal ultrasound (boingboing.net)
- Supreme Court Watch: FOIA Edition
- Supreme Court Watch: University of Texas Southwestern Medical Center v. Nassar
- The Gosnell Murder Trial
- Cruzin’ for a Bruzin’
- Supreme Court Watch: Association for Molecular Pathology v. Myriad Genetics, Inc.
- Supreme Court Watch: McQuiggin v. Perkins
- Supreme Court Watch: Butt v. Utah
- Supreme Court Watch: Bowman v. Monsanto Co.
- Supreme Court Watch: Genesis Healthcare Corp. v. Symczyk
- Supreme Court Watch: Kirtsaeng v. John Wiley and Sons, Inc.