No Cause for Celebration
Pro-choice supporters think they got Virginia's governor to cave on the state’s controversial ultrasound law. But he is about to sign a new law that is just as bad.
Photo by Chip Somodevilla/Getty Images.
Pro-choice supporters are scoring last week’s decision by Virginia Gov. Bob McDonnell to back down from a requirement that women be forced to submit to invasive transvaginal ultrasounds before having an abortion as a big win. In a sense, it was. It proved, as the governor and vice presidential hopeful explained after further reflection, that “mandating an invasive procedure in order to give informed consent is not a proper role for the state. No person should be directed to undergo an invasive procedure by the state, without their consent, as a precondition to another medical procedure." The furor in Virginia over the transvaginal aspect of the bill has now spread to other states considering ultrasound bills.
But while many Virginians—whose silent protest last week proved game-changing—are glad to have been spared the very worst of the proposed ultrasound bill, the truth is that the revised bill that passed the Senate yesterday is not any better. Indeed, many argue that the pitched battle over the type of scan forced on a woman only created a distraction from the real problem. The amended law goes back to the House today for approval and then on to the governor for his signature.
The sponsor of the original Senate ultrasound bill, Sen. Jill Holtzman Vogel, announced she would no longer support it, based on a “moment of conscience” and a misunderstanding of what the bill would have entailed. That has always been the worry. Most state legislators are not doctors, and most haven’t the foggiest notion of either best practices or standards of care. (One has to wonder what else the state’s lawmakers don’t yet understand.) While state Republicans ultimately did agree to add an exception for victims of rape and incest, the fact is that Virginia now joins seven other states in mandating ultrasounds. Women will still have to pay for them out of pocket. (It will cost between $300 to $1,200.) There is still a burdensome 24-hour waiting period that falls most heavily on poor and working women. And there are still reports that have nothing to do with one’s medical choices placed in a woman’s medical record without her consent.
But another of the worst aspects of the new and “improved” ultrasound bill are the implications for women who have experienced a “missed miscarriage,” in which the dead fetus needs to be removed from the uterus. I want you to hear it directly from Del. Jennifer McClellan (D), who gave a floor speech last week about what mandatory ultrasounds mean for women who lose even a wanted pregnancy. McClellan said exactly what some of her colleagues needed to hear about the ostensibly less-invasive ultrasound bill: what happens when—with no authority to do so under the state code—legislators who know nothing about medicine take it into their own hands to interpose themselves between “women, their physicians and God.” McClellan warned that a woman who miscarried later in her pregnancy—and thus already knows the gestational age of the fetus—would still be forced to have an ultrasound, and offered the chance to see it and listen for a heartbeat, before she can fully end the pregnancy.
I spoke to McClellan last week, and she, like many Virginia Democrats, was worried that all the focus on the transvaginal component of the bill distracted from how truly awful the amended ultrasound bill still is. To the argument that many, if not most, providers will order an ultrasound before a termination, her response is that it’s still the physician’s choice to provide it, not the state’s, and that if a provider already knows the fetus’ gestational age, they should be able to opt not to perform one. Forcing a mother to listen to a fetal heartbeat or recording her response has nothing to do with the mother’s health.
Indeed, where last week the supporters of the bill argued that all abortion providers always do ultrasounds anyhow, their new new argument seems to be that since at least Planned Parenthood always does ultrasounds, every other physician should be forced to as well. You see the trick, right? It’s either that all doctors do ultrasounds, thus it’s OK for the state to mandate it. Or that only some doctors do it, so it’s OK for the state to mandate it. Again, the state knows better than the physicians.
State Sen. Ralph Northam, who is a pediatric neurologist, tells me today that the amended bill doesn’t solve the underlying problems of the original ultrasound law. “This will be the first time in the history of the Commonwealth,” he says, “that a group of legislators are telling doctors how to practice medicine.” He adds that by making the transvaginal procedure optional, the bill forces doctors to do a trans-abdominal ultrasound even in the early weeks of a pregnancy, before anything can even be seen. “They are telling us to do a costly and unnecessary procedure that won’t even work,” he explains. In the end, he says, calling it an “informed consent bill” is misleading. “If they just came out and said what their true intent was, I’d have more respect for them.”
There is a debate raging now about whether it was a mistake for critics to focus on the transvaginal aspect of the law, as opposed to the fact that all mandatory ultrasounds represent an impermissible incursion into a doctor’s judgment and a woman’s rights. That, I suspect, depends on what women choose to make of Gov. McDonnell, who said yesterday that he was pleased with the passage of the new ultrasound legislation because "I think women have a right to know all the right medical information before they make an informed choice.” Yet the same McDonnell has loudly objected to TSA body scans and pat-downs in airports as crossing “the line” in regard “to people’s concerns about privacy” and “beneath the dignity” of air travelers. Everyone has a right to privacy and dignity, and if the government seeks to intrude on those rights it should be able to articulate a reason. “Women don’t really know what they’re doing” isn’t a reason. It never was.
Dahlia Lithwick writes about the courts and the law for Slate.