There is a growing trend among states to try to make abortions more difficult to access, and a law passed in Oklahoma provides the latest example of this trend. In April, Oklahoma passed a law that requires women seeking an abortion to undergo an ultrasound, and during the ultrasound, the woman must be shown a fetal image and hear a verbal description of fetal characteristics, such as heartbeat and size. The hope is that if women view a sonogram and hear details about the embryo or fetus they will change their minds and decide to preserve the pregnancy.
Supporters of these "mandatory ultrasound" laws try to justify them on "informed consent" grounds - they claim that this is necessary to ensure that women have all the information they need to make an informed choice about abortion. However, a closer look at the Oklahoma law reveals a much more insidious purpose and strategy to undermine informed consent and interfere with women's reproductive choice. The law is an unethical invasion into the physician-patient relationship and an unconstitutional burden on a woman's reproductive rights.
The Supreme Court established the current test for determining when government regulation of abortion is unconstitutional in Planned Parenthood v. Casey. Under Casey, states can enact laws that ensure a thoughtful and informed choice and provide a "reasonable framework" for a woman to make a decision about abortion. The state may also enact rules and regulations designed to "encourage [the woman] to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuiung the pregnancy to full term." On the other hand, regulation that "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus" would be considered an undue burden, and therefore unconstitutional. In short, while the state can express a preference for childbirth through its laws, it can only do so in a way that is reasonable and respects the woman's right to make an informed choice.
As written, the Oklahoma law violates both of these constitutional requirements. One problem with the law is the obligatory nature of the ultrasound and the manner in which both the ultrasound and information is being forced on women. A woman seeking an abortion must undergo an ultrasound despite the fact the medical standard of care does not require this to determine fetal age in the first trimester. (Some providers use ultrasound to determine age and check for abnormalities, but others use a less expensive and less intrusive means for gathering this information.) The law expressly requires the ultrasound to be performed using a vaginal or abdominal transducer, "whichever displays a clearer image." This essentially requires women to undergo an ultrasound using the more intrusive vaginal probe as a condition for obtaining an abortion, with no medical justification.
Moreover, during this intrusive and unnecessary procedure, the law requires the ultrasound screen to be positioned so that the woman can see it, and the physician or ultrasound technician is supposed to describe characteristics of the fetus or embryo, such as its heartbeat and dimensions, in detail. The woman is forced to avert her eyes to avoid seeing the screen (which the law allows), but there is no provision in the law permitting the woman to opt-out of the ultrasound itself or from hearing this information.
Forcing women to receive information in this manner is not really designed to ensure that women have the medically or other relevant information they need to make their decision. Indeed, Oklahoma, like many states, already has a comprehensive regulatory scheme that requires physicians to make such information available to women. By the state and supporters' own admissions, the image is being used to try to elicit an emotional response that will cause the woman to change her mind. While I have not yet seen reports of women changing their minds, women subjected to these kinds of laws so far have described the experience as "intrusive," "very cruel," and "emotional torture." They have been offended at the implicit assumption by the state that they somehow have not adequately considered the impact of their decision. And the worst part is that their health care provider - the one they are turning to at this vulnerable and scary time, they one they must trust to see them through an already traumatic medical procedure - is the one required to do the torturing.
Proponents of the law claim that this is simply designed to give women more information and thus is the "ultimate example of informed consent." However, this is a perversion of the ethical and legal doctrine of informed consent. Informed consent is a doctrine used to ensure that patients have relevant information to be able make an informed decision about medical treatment. But there are important corollaries to this duty. Physicians must respect the patients' autonomy, including whatever social or moral values guide the patient's decision. Physicians should not use their position of power or greater knowledge to trick or coerce a patient into a course of treatment based on the physicians' own moral values. More specifically, physicians should not provide information that distorts or unduly influences a patient to choose a particular course of action; information used in this way denies patients' real choice and thus undermines their autonomy. Finally, in addition to promoting autonomy, informed consent is supposed to promote rational decision making by patients. But information designed to elicit an emotional response that subverts or overwhelms the patients' ability to think through her decision does not further this goal.
Another problem with the law is a licensing requirement that has not gotten as much media attention, but which demonstrates even more clearly the real intent of this law: that's the requirement that the ultrasound be performed by a physician or "certified ultrasound technician." This is problematic for two reasons. First, it establishes a special licensing requirement for personnel performing ultrasounds in cases of abortion only; this requirement does not apply to ultrasounds performed on pregnant women carrying a pregnancy to term or on men or women getting ultrasounds to diagnose or monitor other medical conditions. Currently, ultrasounds can be and are safely performed by other medical professionals, such as licensed practical nurses who are trained and supervised by physicians. Indeed safety and qualification are clearly is not the motivating concerns if this heightened licensing requirement isn't being applied to women actually carrying their pregnancy to term given the state's express interest in protecting fetal health.
So why single out abortion for this requirement? The answer is clear when one considers the law's practical effect, detailed in a recent legal challenge to the Oklahoma law filed by the Center for Reproductive Rights. It describes the difficulty providers already face trying to recruit physicians to provide abortions due to the added legal burdens, stigma, and danger involved. The heightened licensing requirement would significantly increase the cost and practical difficulty providers face in recruiting physicians and certified ultrasound technicians to do ultrasounds, which, in turn, would create significant barriers for women seeking an abortion. This different regulatory standard for abortion ultrasound is not related to any medical or other legitimate government interest; it is a transparent attempt to make accessing abortion more difficult, if not impossible.
In short, the Oklahma law is an unconstitutional attempt to unduly burden women's attempts to access abortion by placing additional emotional, physical, financial, and legal barriers in their path. And by comandeering physicians in this "war on abortion" and using ultrasound as its latest weapon of choice, the law is also an unethical invasion into the physician-patient relationship.
