JURIST Guest Columnist Mailee Smith, Staff Counsel at Americans United for Life, argues that legislation requiring ultrasounds before an abortion are constitutional under Supreme Court precedent and serve an essential medical purpose...
Most abortion regulations are hotly contested before and after enactment, and after sweeping pro-life gains in state legislatures in 2011, state legislators and policy groups expected the 2012 legislative session to be heated. What was not expected, however, was for one basic ultrasound requirement Virginia's House Bill 462, signed into law on Wednesday to garner the attention of the entire nation.
Historically, state ultrasound regulations have not attracted national media attention. In fact, 22 other states maintain varying degrees of ultrasound requirements. Because ultrasounds are medically necessary and routinely performed before abortion, bills mandating their provision before abortion are not usually so controversial.
In this politically-driven election season, HB 462 became the target of an unfortunate misinformation campaign. While the enacted version of HB 462 was amended to remove any doubt as to the bill's intent of protecting women, it could have withstood constitutional scrutiny without amendment because it served an essential medical purpose which has been repeatedly affirmed by the US Supreme Court: the state interest in protecting women's health "from the outset of the pregnancy."
Ultrasound requirements serve an essential medical purpose
Performing an ultrasound before abortion is the gold standard of the abortion industry. For example, Planned Parenthood clinics in Virginia state on their voice message that they perform an ultrasound before an abortion. Quite simply, ultrasound before abortion is standard care.
First, ultrasound technology is utilized to diagnose ectopic pregnancies which, if left undiagnosed, can result in infertility or even fatal blood loss. For example, the Food and Drug Administration (FDA) has reported [PDF] at least two deaths from ruptured ectopic pregnancy following use of the abortion drug RU-486.
Second, ultrasound technology is utilized to determine a more precise gestational age of the pregnancy. Certain abortion procedures are contraindicated at various stages of pregnancy, and having an accurate estimation of the gestational age is essential. For example, RU-486 was approved by the FDA only through 49 days gestation and has no other approved indication for use during pregnancy. For the safety of women utilizing RU-486, it is essential to know the gestational age of pregnancy; providing RU-486 past that point can lead to devastating physical consequences for the woman.
Ultrasound requirements are constitutional
States have a significant interest in protecting the health and welfare of women considering abortion. One need only observe the language in Planned Parenthood of Southeastern Pennsylvania v. Casey and Gonzales v. Carhart the current bedrocks of abortion jurisprudence to understand that the US Supreme Court affirms states' interests in protecting the health and welfare of women through ultrasound requirements.
In Casey, the Supreme Court affirmed the "essential holding" from Roe v. Wade, that "the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman." The Supreme Court ruled that, "[a]s with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion."
The Supreme Court explained that an "undue burden" exists (and, therefore, a provision is invalid) only if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the unborn child attains viability.
Like Casey, Gonzales v. Carhart reaffirmed the holding in Roe that states have "legitimate interests from the outset of pregnancy in protecting the health of the woman." In addition, the Court stated that its precedents make "clear the State has a significant role to play in regulating the medical profession." The state has a legitimate concern for maintaining high standards of conduct in the practice of medicine.
Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life.The Court also declared that "[t]he law need not give abortion doctors unfettered choice in the course of their medical practice."
HB 462 falls squarely within the Court's abortion jurisprudence
HB 462 is Supreme Court jurisprudence in legislative form: it is a valid exercise of the state's interest in protecting women through constitutional ultrasound legislation.
Specifically, the initial version of HB 462 contained three basic components: 1) a requirement that a qualified medical professional perform an ultrasound prior to abortion to determine gestational age; 2) a requirement that the woman be verbally offered the opportunity to view the ultrasound image and hear the heart tones; and 3) a standard of care to ensure that the ultrasound be performed according to community (medical) standards. Five states maintain similar laws; these laws were enacted without much hoopla, and none have been challenged in court.
The bill is aimed at protecting the health and welfare of women. It does not place a substantial obstacle in the path of women. It does not prevent women from obtaining abortions. In fact, it is the "gold standard" of the abortion industry to perform an ultrasound before each and every abortion, even in the first trimester. The Virginia is acting within its regulatory power to further its legitimate interest in regulating the medical profession in order to protect the life of the woman.
Without merit, the bill's opponents claimed that the standard of care provision required a transvaginal ultrasound in the first trimester, comparing the technique to rape. Nothing could be further from the truth.
According to Taber's Cyclopedic Medical Dictionary, a "standard of care" is "a statement of actions consistent with minimum safe professional conduct under specific conditions, as determined by professional peer organizations." In the ultrasound context, this means that abortion providers are to perform an ultrasound in a professional manner consistent with the way ultrasounds are performed across the abortion or obstetrics communities. Likewise, the original language in HB 462 required that the ultrasound "shall be made pursuant to standard medical practice in the community." In other words, abortion providers must follow a basic standard of care. They should not conduct the ultrasound haphazardly. They should not throw an image of the woman's gall bladder on the screen and claim that it is "products of conception."
The original version of the bill simply required abortion providers to perform ultrasound in the way it is performed in the local medical community. Do abortion providers regularly use transvaginal ultrasound in the first trimester? No. Do obstetricians regularly use transvaginal ultrasound in the first trimester? No. The usual procedure is to perform an abdominal ultrasound. In fact, the standard of care language in the original bill allowed abortion providers to use their best medical judgment in determining which procedure was best for the woman.
While opponents of HB 462 may argue that ultrasound is not necessary for all abortions, the Supreme Court made clear in Gonzales that "[t]he Court has given state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty."
Here, there is no uncertainty that determining the precise gestational age and location of a pregnancy is beneficial to the health of the mother. All women considering abortion deserve this basic protection.
Mailee Smith joined Americans United for Life (AUL) in January of 2005. Among her many responsibilities at AUL, Smith consults with legislators on legislation in the areas of parental involvement and informed consent before abortion, bioethics and end-of-life issues. In addition, Smith serves as Associate Editor of AUL's annual publication Defending Life: Proven Strategies for a Pro-Life America.
Suggested citation: Mailee Smith, Pre-Abortion Ultrasounds Serve Essential Purpose, JURIST - Hotline, March 16, 2012, http://jurist.org/hotline/2012/03/mailee-smith-abortion-ultrasound.php.
This article was prepared for publication by Stephen Zumbrun, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at firstname.lastname@example.org