The Supreme Court on Monday declined to review North Carolina’s forced ultrasound law, rendering it unenforceable and marking a rare bit of good news about reproductive freedom to come out of the high court. (This time last year, I was in the midst of a prolonged Charlie Brown sad walk over Hobby Lobby and buffer zones.)
This is the end of the road for the state’s condescendingly-titled A Woman’s Right to Know Act, which was challenged by a coalition of groups on First Amendment grounds. The law required doctors to give patients seeking abortion care detailed descriptions of their ultrasounds and follow a script that, according to a lower court ruling striking down the law, had an "ideological message in favor of carrying a pregnancy to term."
A woman could avert her eyes from the ultrasound screen or plug up her ears to avoid hearing the script, but doctors were legally required to keep going or risk losing their license.
It was a particularly draconian bit of compelled speech forced on patients in a particularly vulnerable position (half naked on an exam table, hours before a medical procedure), which is why it was blocked last year by a panel of judges on the Fourth Circuit. That court's ruling gives some useful context for the severity of the law as it compares to other informed consent laws, so it’s worth including here:
Informed consent frequently consists of a fully-clothed conversation between the patient and physician, often in the physician’s office. It is driven by the “patient’s particular needs and circumstances” … so that the patient receives the information he or she wants in a setting that promotes an informed and thoughtful choice. This provision, however, finds the patient half-naked or disrobed on her back on an examination table, with an ultrasound probe either on her belly or inserted into her vagina… Informed consent has not generally been thought to require a patient to view images from his or her own body much less in a setting in which personal judgment may be altered or impaired. Yet this provision requires that she do so or “avert her eyes.”
Rather than engaging in a conversation calculated to inform, the physician must continue talking regardless of whether the patient is listening... The information is provided irrespective of the needs or wants of the patient, in direct contravention of medical ethics and the principle of patient autonomy. Forcing this experience on a patient over her objections in this manner interferes with the decision of a patient not to receive information that could make an indescribably difficult decision even more traumatic and could “actually cause harm to the patient.” … And it is intended to convey not the risks and benefits of the medical procedure to the patient’s own health, but rather the full weight of the state’s moral condemnation.
There are currently 10 states with mandatory ultrasound laws. One of them is Wisconsin. Here's how rumored Republican presidential hopeful Scott Walker described his own state's forced ultrasound law:
I'll give you an example. I'm pro-life, I've passed pro-life legislation. We defunded Planned Parenthood, we signed a law that requires an ultrasound. Which, the thing about that, the media tried to make that sound like that was a crazy idea. Most people I talk to, whether they're pro-life or not, I find people all the time who'll get out their iPhone and show me a picture of their grandkids' ultrasound and how excited they are, so that's a lovely thing. I think about my sons are 19 and 20, you know we still have their first ultrasound picture. It's just a cool thing out there.
We just knew if we signed that law, if we provided the information, that more people if they saw that unborn child would, would make a decision to protect and keep the life of that unborn child.
Walker may think forced ultrasounds are "cool," but he's wrong about the impact of such laws. As I've written before, forced ultrasound laws don't change women's minds about abortion, they just make the procedure more expensive -- and potentially more traumatizing as women feel judged and condemned by a script the state forced into their doctors' mouths.
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