In short, no it doesn’t.
On February first, the Virginia Senate passed the resolved version of a new bill requiring women considering an abortion to get an ultrasound before going forward with it. They were the eighth such chamber to do so.
Last week, objections to what seemed like an eminently sensible policy to a majority to both houses of the General Assembly began appearing in earnest from liberal bloggers generally in favor of regulations of all sorts except when it comes to curtailing the gestation of people. In a failure of nerve, the House of Delegates has postponed voting on the final bill yesterday and today.
Echoing the line of Delegate Charniele Herring (D), that the bill amounted to “state-sponsored rape,” the headline of a piece by Slate’s Dahlia Lithwick called the new bill an “abomination,” asking “Where’s the outrage?” from women that, under the new law, would apparently be subject to coerced penetration by ultrasound wand should they choose to have an abortion. That assumption became conventional wisdom so quickly that the bill was ridiculed by Saturday Night Live last weekend.
Their concerns arise from the fact that an ordinary sonogram can’t provide the level of detail that the bill supposedly mandates, meaning the doctor would be required to perform a more invasive transvaginal ultrasound. But the way the bill is written seems to allow for a woman to get an abdominal sonogram even if it results in a muddy picture. Here’s the relevant chunk of text:
“The ultrasound image shall be made pursuant to standard medical practice in the community, contain the dimensions of the fetus, and accurately portray the presence of external members and internal organs of the fetus, if present or viewable. Determination of gestational age shall be based upon measurement of the fetus in a manner consistent with standard medical practice in the community in determining gestational age. When only the gestational sac is visible during ultrasound imaging, gestational age may be based upon measurement of the gestational sac.”
In other words there’s a lot of room for the doctor’s discretion, and nowhere does the state mandate a doctor root around with a camera in a pregnant lady’s hoo-ha. Still, some Democratic legislators appear ready to take that line of attack in court, arguing the ‘forcible-penetration mandate’ violates sex crime statutes.
The bill’s critics are correct that civil liberties protection isn’t the first concern of its supporters. Phil Puckett, a Democratic State Senator from southwest Virginia voted for the bill (one of two Democrats who did, the other being Chuck Colgan of Manassas who has a consistently pro-life record. Republican John Watkins also voted against the bill.), and while he couldn’t say whether or not it mandates transvaginal ultrasounds, the effort to discourage abortions was more important anyway.
“I’m not too concerned with what the procedure is,” Puckett told TAC. “I’m more concerned with pro-life policies that give the unborn the chance to be born. My guess is that it is invasive, for a woman to go through that. It’s not as simple as someone would like to make it sound. That’s not the issue for me. The issue for me is that I believe in life beginning at conception. Whether it’s an ultrasound or whatever the issue is, anything that would enhance the opportunity for an unborn to be born, I would support.”
However, dubious claims of medicalized rape are not the only civil liberties issue raised by the new abortion restrictions. The bill sets a precedent of the government being able to mandate medically unnecessary ancillary procedures to major surgery. More troubling is the provision that requires the doctor to place a photo of the ultrasound in the patient’s file for seven years, with a little note about whether or not they declined to view it.
As for the constitutionality of the law, the standard is that the mandate must not place an “undue burden” on a woman’s right to abort a pregnancy. Since an ultrasound is performed before most abortions already, and even a transvaginal ultrasound is far less invasive than the actual abortion – which the woman has elected to undergo – the Virginia bill seems, to my untrained legal eye, to be alright.
Whether the bill will actually reduce the number of abortions per its clear intent is still an open question. What if women in the first six weeks of pregnancy who decide to have an abortion understandably opt for the less invasive ultrasound option? Even if they decide to look at the resulting images (they don’t have to under the Virginia bill, unlike in some other states), wouldn’t it just be a grainy, amneotic blur? Would this ever actually accomplish the moment of clarity the bill’s supporters seem to have in mind, of a woman who’s decided to have an abortion suddenly realizing the error of her ways? I’m skeptical. In that light, the abortion rights boosters have a point about the bill being another example of government overreach.
But to Puckett, the civil liberties question cuts both ways: ”The unborn have civil liberties too, and some people may disagree with that, but it’s just the way I feel. I don’t put legislation like that in, but when I am faced with voting on it, that’s how I feel.”
The two abortion-related bills in the General Assembly this session are likely to land on Governor McDonnell’s desk soon, and two statehouse sources have told TAC that the Governor’s office is looking into their constitutionality.