Right-wingers-- keep your laws and sonograms off (and out of) women's bodies!

...................................................................................................................................................................
COMMENT:  They should require that ultra sound probe up the father's reproductive tract.  Here is where all that came from. How about before any sex?  We'll see how well that flies.

...................................................................................................................................................................

Baby talk
December 31, 2014

A NORTH CAROLINA law enacted in 2011 requires every woman seeking an abortion to submit, between four and 72 hours before the procedure, to an ultrasound of her developing foetus. The Woman’s Right to Know Act (which, in less Orwellian terms, might be called the North Carolina Right to Harangue Act) relies on a 1992 Supreme Court decision upholding an "informed consent” rule whereby doctors were required to offer patients a state-issued pamphlet describing the risks of abortion procedures. North Carolina ups the ante considerably with its recent law, adding a so-called “Display of Real-Time View Requirement.” In the words of a judge on the Fourth Circuit Court of Appeals, which issued a ruling against the law on December 22nd, this requirement

obligates doctors (or technicians) to...display the sonogram so that the woman can see it and describe the foetus in detail, “includ[ing] the presence, location, and dimensions of the unborn child within the uterus and the number of unborn children depicted,” as well as “the presence of external members and internal organs, if present and viewable.” The physician also must offer to allow the woman to hear the foetal heart tone. The woman, however, may “avert[] her eyes from the displayed images” and “refus[e] to hear the simultaneous explanation and medical description” by presumably covering her eyes and ears.” 

In his ruling, Judge J. Harvie Wilkinson III—appointed to the Fourth Circuit by Ronald Reagan and considered by George W. Bush as a candidate to replace William Rehnquist after his death in 2005 (in other words, no liberal)—admitted that North Carolina is free to press its case against abortion. “The Supreme Court has forcefully reiterated,” he wrote, “that the state’s interest in protecting foetal life is important and profound.” But dissuading women from having abortions is not an unlimited power. The law in North Carolina violates doctors’ freedom of speech, Judge Wilkinson explained, and “professionals do not leave their speech rights at the office door.” Doctors should not lose their licenses for refusing to point out the fingers and toes of a foetus a woman intends to abort. The requirement also constitutes an “undue burden” on the woman’s constitutional right to choose to have an abortion. He shows in harrowing terms just how burdensome the sonogram can be:

This provision...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. 

Nearly two dozen states have some form of ultrasound law, but North Carolina is one of only three requiring doctors to continue speaking even as women are plugging their ears or averting their gaze from the monitor. The scene would be comical if it weren’t nightmarish. Imagine a doctor prattling on about doomed foetal limbs and kidneys while an exposed woman desperately holds her ears to keep the details at bay. The law puts both parties in a grim position.

As welcome as the Fourth Circuit ruling is, it may not be the last word on the question. As Lyle Denniston of SCOTUSblog reports, it “conflicts directly with a decision in early 2012 by the U.S. Court of Appeals for the Fifth Circuit, upholding a similar Texas law.” Noting the split in the circuits, North Carolina has announced its intention to petition the Supreme Court for a hearing.

If the justices agree to hear the case, the fate of the sonogram law is uncertain. The Court's four reliable conservatives will likely side with the Fifth Circuit and uphold the ultrasounds, while the four liberals will agree with Judge Wilkinson. The purported swing voter on abortion issues, Justice Anthony Kennedy, is a tough call. He authored the Planned Parenthood v Casey decision reaffirming the central holding in Roe v Wade and would presumably be the man to sort out just what constitutes “informed consent”—the nexus of disagreement between the Fourth and Fifth Circuits. But as David Cohen observed last year in a Slate analysis, “rumours of Anthony Kennedy as a moderate on abortion are wildly overblown...The so-called swing justice...has voted to strike down only one of the 21 abortion restrictions that have come before the Supreme Court since he became a justice.”
...................................................................................................................................................................