Ultrasound politics

By Scott Forsyth The Daily Record Newswire The Virginia legislature received much negative publicity last month when it passed a bill requiring a woman wanting an abortion to undergo a transvaginal ultrasound in some circumstances. The governor rightly sent the bill back to the legislature. Less well known is the fact that this month the legislature passed and the governor signed into law a modified bill that tracks Texas law on the subject. Why Texas? Because in January a federal court of appeals upheld the Texas law against a First Amendment challenge, Texas Medical Providers Performing Abortion Services v. Lakey, 667 F.3d 570 (5th Cir. 2012). We now have a bandwagon developing. Twenty states require a physician to conduct an ultrasound on a pregnant woman seeking an abortion and several more have bills in the hopper. Acting as a brake somewhat on the bandwagon is a decision out of a federal district court last fall that invalidated North Carolina's law, on First Amendment grounds. North Carolina's law is very similar to Texas', Stuart v. Huff, 1:11 CV 804 (MDNC 2011). Promoters of the laws make no secret of their purpose -- to discourage women from obtaining abortions by displaying to them compelling visuals and audio. The promoters wrap up this purpose in the guise of informed consent. To better understand, allegedly, the risks of the abortion procedure to herself and the fetus and the alternatives to abortion, a pregnant woman must undergo an ultrasound. The physician performing the ultrasound must explain the images, "including a description of the dimensions of the fetus, the presence of cardiac activity, and the presence of external members and internal organs." While talking, the physician must display the images to the woman and make audible to her the heartbeat of the fetus. Under the Texas law, the woman may waive the viewing of the images and the transmission of the heartbeat. Not so under the North Carolina law. Government is free to make a statement on a public issue, but it cannot compel a private party to deliver the statement, unless doing so is narrowly tailored to serve a compelling government interest. A mandate to speak is considered a content-based regulation of speech, which is "presumptively invalid," Wooley v. Maynard, 430 U.S. 705 (1977). Strict scrutiny, as previously formulated, is the usual test for compelled speech and the court in Stuart applied it. The North Carolina law compelled the plaintiffs, physicians, to provide orally and visually information about the fetus to their patients. The information was not medically necessary. The plaintiffs would not provide the information but for the law. North Carolina advanced two interests as compelling -- protecting abortion patients from psychological distress and preventing women from being coerced into having abortions. The court rejected both, finding no evidence the information would further the interests. The court in Lakey did not follow the strict scrutiny analysis. Instead, it found in three sentences of Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833 (1992), a Supreme Court intent not to apply strict scrutiny to laws compelling information to be disclosed to a woman before an abortion. The law in Casey required the provider to distribute to the woman information about the health risks of an abortion and to tell her the "probable gestational age of the unborn child." Most of the decision focused on whether the requirement violated the woman's right to privacy. Out of this discussion came a new test. A regulation designed to foster a woman's health is valid if it does not "constitute an undue burden" on the right to choose an abortion. The three sentences disposed of a First Amendment challenge. In the opinion of the circuit court of appeals a state can compel physicians to speak about abortion if the information is "truthful, nonmisleading, and relevant" and relates to the state's regulation of the practice of medicine. While the Texas disclosures were "more graphic" than the Pennsylvania disclosures, the former were still relevant to the decision to terminate a pregnancy. The relationship between the physician and the patient and the type of consent necessary for a procedure were legitimate areas for government regulation. North Carolina made the same argument to no avail. The court in Stuart found it "unlikely" the Supreme Court would overturn "long-established First Amendment law" "by implication" "when speech about abortion is at issue." Which view of the three sentences prevails is anybody's guess. Both laws as applied may be vulnerable to a privacy challenge. Most experts agree a woman less than eight weeks pregnant needs a transvaginal ultrasound. An abdominal ultrasound doesn't produce a clear enough image to enable the physician to meet her statutory duty to display and explain. Sticking a probe into a woman without her true consent sounds like an assault. Will a court find the practice to be undue burden on her right to choose an abortion? ---------- Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com. Published: Fri, Mar 30, 2012