Why Does a New Virginia Law Require Women To Be Forcibly Penetrated for No Medical Reason?

What women really think about news, politics, and culture.
Feb. 16 2012 6:57 PM

Virginia’s Proposed Ultrasound Law Is an Abomination

Under the new legislation, women who want an abortion will be forcibly penetrated for no medical reason. Where’s the outrage?

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A Virginia law would require a woman seeking an abortion to undergo an ultrasound, whether medically necessary or not.

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This week, the Virginia state Legislature passed a bill that would require women to have an ultrasound before they may have an abortion. Because the great majority of abortions occur during the first 12 weeks, that means most women will be forced to have a transvaginal procedure, in which a probe is inserted into the vagina, and then moved around until an ultrasound image is produced. Since a proposed amendment to the bill—a provision that would have had the patient consent to this bodily intrusion or allowed the physician to opt not to do the vaginal ultrasound—failed on 64-34 vote, the law provides that women seeking an abortion in Virginia will be forcibly penetrated for no medical reason. I am not the first person to note that under any other set of facts, that would constitute rape under the federal definition.*

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

What’s more, a provision of the law that has received almost no media attention would ensure that a certification by the doctor that the patient either did or didn’t “avail herself of the opportunity” to view the ultrasound or listen to the fetal heartbeat will go into the woman’s medical record. Whether she wants it there or not. I guess they were all out of scarlet letters in Richmond.

So the problem is not just that the woman and her physician (the core relationship protected in Roe) no longer matter at all in deciding whether an abortion is proper. It is that the physician is being commandeered by the state to perform a medically unnecessary procedure upon a woman, despite clear ethical directives to the contrary. (There is no evidence at all that the ultrasound is a medical necessity, and nobody attempted to defend it on those grounds.) As an editorial in the Virginian-Pilot put it recently, “Under any other circumstances, forcing an unwilling person to submit to a vaginal probing would be a violation beyond imagining. Requiring a doctor to commit such an act, especially when medically unnecessary, and to submit to an arbitrary waiting period, is to demand an abrogation of medical ethics, if not common decency.”*

Evidently the right of conscience for doctors who oppose abortion are a matter of grave national concern. The ethical and professional obligations of physicians who would merely like to perform their jobs without physically violating their own patients are, however, immaterial. Don’t even bother asking whether this law would have passed had it involved physically penetrating a man instead of a woman without consent. Next month the U.S. Supreme Court will hear argument about the obscene government overreach that is the individual mandate in President Obama’s health care law. Yet physical intrusion by government into the vagina of a pregnant woman is so urgently needed that the woman herself should be forced to pay for the privilege.

The bill will undoubtedly be enacted into law by the governor, Bob McDonnell, who is gunning hard for a gig as vice president and has already indicated that he will sign the bill. (Update, Feb. 28, 2012: After an enormous backlash against the bill, McDonnell rescinded his support. The bill was voted down in the Virginia State Senate and shelved until 2013.) “I think it gives full information,” he said this week on WTOP radio’s “Ask the Governor” program. “To be able to have that information before making what most people would say is a very important, serious, life-changing decision, I think is appropriate.”

That’s been the defense of this type of ultrasound law from the outset; it’s merely “more information” for the mother, and, really, what kind of anti-science Neanderthal opposes information? Pretending that this law is just a technological update on Virginia’s informed consent laws has another benefit: You can shame and violate women, while couching it in the language of Justice Anthony Kennedy’s gift that keeps on giving—his opinion in Gonzales v. Carhart. That opinion upheld Congress’ partial-birth abortion ban on the grounds that (although there was no real evidence to support this assumption) some women who have abortions will suffer "severe depression" and “regrets” if they aren’t made to understand the implications of what they have done.*

Never mind that the evidence indicates that women forced to see ultrasound images opt to terminate anyhow. According to the American Independent, a new study by Tracy Weitz, assistant professor in the Department of Obstetrics, Gynecology & Reproductive Sciences at the University of California, San Francisco, shows that “viewing an ultrasound is not an indication that a woman will cancel her scheduled procedure, regardless of what emotional response the sonogram elicits.” Weitz summarized her findings in 2010 when she said that “women do not have abortions because they believe the fetus is not a human or because they don’t know the truth.”

Of course, the bill is unconstitutional. The whole point of the new abortion bans is to force the Supreme Court to reverse Roe v. Wade. It’s unconstitutional to place an “undue burden” on a woman’s right to terminate her pregnancy, although it’s anyone’s guess what, precisely, that means. One would be inclined to suspect, however, that unwanted penetration with a medical device violates either the undue burden test or the right to bodily autonomy. But that’s the other catch in this bill. Proponents seem to be of the view that once a woman has allowed a man to penetrate her body once, her right to bodily autonomy has ended.

During the floor debate on Tuesday, Del. C. Todd Gilbert announced that “in the vast majority of these cases, these [abortions] are matters of lifestyle convenience.” (He has since apologized.) Virginia Democrat Del. David Englin, who opposes the bill, has said Gilbert’s statement “is in line with previous Republican comments on the issue,” recalling one conversation with a GOP lawmaker who told him that women had already made the decision to be "vaginally penetrated when they got pregnant." (I confirmed with Englin that this quote was accurate.)*

That’s the same logic that animates the bill’s sponsor in the House of Delegates, Del. Kathy J. Byron, who insisted this week that, “if we want to talk about invasiveness, there's nothing more invasive than the procedure that she is about to have." Decoded, that means that if you are willing to submit to sex and/or an abortion, the state should be allowed to penetrate your body as well.

I asked Del. Englin what recourse there is for the ultrasound law, and he told me that the governor, while unlikely to veto the bill, still has the power to amend it to require the patient’s consent or say that physicians can opt not to do the vaginal probe. One might hope that even the benign act of giving women “more information” not be allowed to happen by forcing it between her legs. Or is that what we call it these days?

Whatever happens in the commonwealth, it’s fair to say it’s no accident that this week the Legislature also enacted a "personhood" law defining life as beginning at conception—a law that may someday criminalize contraception and some miscarriages as well as abortion. Today was not a good day in the War on Women. Abortion is still legal in America. Physically invading a woman’s body against her will still isn’t. Let’s not casually pass laws that upend both principles in the name of helping women make better choices.

Corrections, Feb. 16, 2012: This article originally misidentified the Virginian-Pilot as the Virginia-Pilot. The article also mistakenly characterized Gonzales v. Carhart as striking down the partial-birth ban. It also misidentified Del. David Englin as a representative. (Return to the corrected sentence.)

Correction, Feb. 21, 2012: This article originally stated that, under normal circumstances, a forced transvaginal ultrasound "would constitute rape under state law." Virginia law considers object sexual penetration a felony separate from rape. (Return to the corrected sentence.)