Oklahoma's ultrasound law for abortions.

The law, lawyers, and the court.
Oct. 22 2008 6:30 AM

Required Viewing

Oklahoma's gallingly paternalistic ultrasound law.

Ultrasound. Click image to expand.
An ultrasound machine

For many pregnant women, ultrasounds are like candy—there can't be too many of those grainy black-and-white images of the fetus napping or kicking in the womb. But if you're pregnant and don't want to be and are considering an abortion, an ultrasound image could be an object of dread. It might force you to think about the fetus as having a separate identity or as the baby it could become.

Dread is the emotion pro-life groups look to instill when they push states to pass laws that make an ultrasound part of the abortion procedure. It should also be said that women may, in fact, react otherwise: They could shrug off the ultrasound as a matter of indifference or even greet it with relief, because an image taken during the first trimester may look much more like a blinking light, or a newt, than a baby. I've never seen a study measuring how many women feel what, but abortion opponents believe that if women see the physical evidence of their pregnancy on the screen, at least some of them will decide not to end it.

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Accordingly, 14 states have passed abortion-related ultrasound laws. Some of these statutes merely instruct clinics to offer an ultrasound to each abortion patient. Since many clinics do this anyway to help determine the week of the pregnancy, these laws don't intrude all that much on the doctor-patient relationship. And as William Saletan has pointed out in Slate, it's hard to argue that women deciding whether to have an abortion should be shielded from accurate scientific information, which is what ultrasounds are, after all.

But what if a woman doesn't want an ultrasound, and there's no pressing clinical reason for her to have it? Four states—Alabama, Louisiana, Mississippi, and Oklahoma—have taken the galling step of requiring her to have one regardless of need. They recently passed laws that go beyond offering ultrasounds to mandating them. Oklahoma's new statute dictates that either the doctor performing the abortion or a "certified technician working in conjunction" with that doctor do the ultrasound, "provide a simultaneous explanation of what the ultrasound is depicting," and also "display the ultrasound images so that the pregnant woman may view them." The law goes so far as to specify the doctor's script: The physician must describe the heartbeat and the presence of internal organs, fingers, and toes. The patient then has to certify in writing that the doctor or technician duly did all of this before the abortion. She can avert her eyes from the screen, the statute allows. Maybe the legislators should have also thought to mention putting her hands over her ears.

The Oklahoma law, scheduled to go into effect on Nov. 1, has other objectionable provisions. Its confusing rules about medical abortions (drugs) would force the clinic bringing suit to stop offering that procedure entirely, says Stephanie Toti, a lawyer for the Center for Reproductive Rights, a public-interest law group that challenged the statute in court earlier this month on behalf of one of the state's abortion providers. Forty percent of the women who come to the clinic choose medical abortions, but the law talks about administering the drugs and follow-up care in a way that doesn't jibe with standard practice, so doctors would be stuck practicing medicine in a way that doesn't make sense to them. The law would also prevent women from recovering damages from any obstetrician-gynecologist whose "act or omission contributed to the mother's not having obtained an abortion"—in other words, women cannot bring suit against a doctor who failed to tell her about a detected birth defect.

This means the law is forcing one kind of information upon women, via ultrasound, while preventing them from successfully suing a doctor who withholds other, possibly more salient information from them, as CRR points out. And this, finally, is what makes Oklahoma's law stand at the top of the heap of paternalism that Justice Anthony Kennedy started climbing two years ago, in his opinion in Gonzales v. Carhart, the decision that banned one method of late-term abortion.

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