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.

Emily Bazelon Emily Bazelon

Emily Bazelon is a Slate senior editor and the Truman Capote Fellow at Yale Law School. She is the author of Sticks and Stones.

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.

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.

Kennedy injected into that case the constitutionally novel idea that because some women come to regret their abortions, the court could substitute its judgment for their doctors' by sparing them from a procedure that women would reject as too gruesome if they only knew the details. In Kennedy's opinion, the solution wasn't to give women more information, as Justice Ruth Bader Ginsburg pointed out in dissent. It was to take away one form of abortion entirely. Under the new Oklahoma law, by contrast, doctors are prevailed upon to show and tell about the fetus whether or not women want to see and hear. But the state-knows-best impulse remains the same: Women can't define consent for themselves; they need lawmakers and judges to do that for them and to protect them from their abortion providers.

In this sense, the Oklahoma abortion law is like a South Dakota statute that requires doctors to give patients who come for an abortion a mandatory written statement telling them that an abortion includes "increased risk of suicide ideation and suicide," even though there's no good evidence of such a risk. Both laws leave doctors with an ethical quandary. They can either risk criminal prosecution by breaking the law or follow it and either (in Oklahoma) do an ultrasound against a patient's will or (in South Dakota) read a state-mandated script for which there's no solid medical backing.

For pro-life advocates, the dilemma for doctors is all gravy. If the laws make abortion providers feel like they can't in good conscience perform abortions in light of the statutory straitjacket, maybe already beleaguered state clinics will have to close their doors. Oklahoma currently has only three abortion clinics. South Dakota has one. Also bedeviling the clinics are the time periods set for doctors to carry out the legislature's instructions. The ultrasound must occur at least an hour before the abortion in Oklahoma, and the South Dakota script must be read to a woman at least two hours beforehand. These waiting periods thus mean that clinics must eat into one of their scarcest resources: a doctor's time.

Since the Supreme Court's 1992 decision in Planned Parenthood v. Casey, the test for whether a state abortion regulation can withstand constitutional scrutiny has been whether it imposes an "undue burden" on a woman seeking the procedure. When you think about the time, cost, and doctor-patient interference, Oklahoma's statute should be an easy call. Then again, the U.S. Court of Appeals for the 8th Circuit swept such concerns aside and allowed South Dakota's law to go into effect last summer, lifting a federal district court's preliminary injunction. ('Tis the season for state action on the abortion front: Colorado and South Dakota each have a referendum on the ballot that abortion opponents are campaigning for. South Dakota's would prohibit abortion except in the case of rape and incest or to protect a woman's health. Colorado's would define a "person" to "include any human being from the moment of fertilization.")

The Center for Reproductive Rights is worried enough about an outcome like the one in the 8th Circuit that it based its challenge to the Oklahoma ultrasound statute entirely on state constitutional law. That means no federal court can review the state courts' decisions (because those courts get to interpret their own constitutions). This was a tough decision, Toti says, but Oklahoma's Constitution has been interpreted in the past to give stronger free-speech and due-process protections than the federal Constitution. And so it seemed like a better bet when it comes to the showdown over what constitutes an undue burden or an infringement on a doctor's free speech right. At least with this U.S. Supreme Court.