Some Reflections on the Texas Pre-Abortion Ultrasound Law, a Year After Its Passage: Part One in a Two-Part Series of Columns
A little over a year ago, Texas Governor Rick Perry signed into law a set of abortion regulations requiring pre-procedure ultrasounds. To simplify a bit, the law—which took the form of amendments to the so-called “Texas Woman’s Right to Know Act”—requires abortion providers to do the following at least 24 hours prior to the procedure: (1) perform an ultrasound on the patient seeking an abortion; (2) expose the patient to the resulting visual ultrasound image, as well as any extant fetal heart sounds; and (3) provide an explanation of the embryo or fetus as pictured on the screen.
In response to the passage of this law (“the Sonogram Law”), a group of abortion providers brought suit, in Texas Medical Providers Performing Abortion Services v. Lakey. The federal district judge in the case then issued a preliminary injunction, blocking enforcement of some parts of the law. The U.S. Court of Appeals for the Fifth Circuit, however, subsequently vacated the preliminary injunction and rejected the various constitutional claims raised by the plaintiffs. On remand, the district court therefore had to dispose of the case, after which the Fifth Circuit denied a petition for rehearing en banc (that is, review by the whole court of appeals). If the plaintiffs now wish to seek U.S. Supreme Court review of the lower court’s decisions, they will need to petition for certiorari (discretionary review) very soon.
The lawsuit and its resolution in the Texas federal courts turned primarily on the alleged rights of medical providers (for example, their rights to free speech and to freedom from criminal prosecution for violating an unconstitutionally vague statute). In contrast, in this two-part series of columns on the Sonogram law, I will focus instead on the women who seek an abortion in Texas, and examine the question whether a law mandating ultrasounds, as the Texas law does, imposes a burden on women that is qualitatively different from the burdens that the U.S. Supreme Court has already approved.
Because a discussion of the physical intrusion of the mandatory ultrasound itself would merit a full column of its own, I will focus on the features of the law that require exposing the woman to the pictures and sounds associated with her ultrasound.
Some More Detail About the Sonogram Law
To begin, I want to elaborate a little on my summary of the Sonogram Law, to help shed light on what the law does regarding women. The law requires Texas abortion providers to perform an ultrasound on each of their patients at least 24 hours prior to her abortion. If the woman certifies that she currently lives 100 miles or more from the nearest abortion provider that meets various statutory criteria, then the doctor (or her sonographer) may instead perform the ultrasound at least two hours before the abortion.
The provider must display the ultrasound image of the embryo or fetus for the patient’s viewing, must make audible to the patient any fetal heart sounds, and must also narrate a detailed description of the pictured embryo or fetus to the woman, along with an explanation of the heartbeat sounds. Though the language of the statute is not entirely clear, the Court of Appeals decision provides the following interpretation of the exceptions to the above requirements: “The woman seeking an abortion may elect not to attend to these images, sounds, or, in some cases, explanations. This election does not obviate the physician’s obligations to display the sonogram images or make audible the heart auscultation [that is, the diagnostician’s listening to fetal heart sounds]; the woman may simply choose not to look or listen.”
In other words, a woman can—based on the Fifth Circuit’s construction of the statute—turn away from the image in front of her face and “choose not to listen” to the sounds of a fetal heartbeat.
In very limited circumstances, the woman may also choose not to listen to the doctor’s explanations of the image and of the heart sounds.
The circumstances are these: if she certifies in writing that (1) she is pregnant as the result of a crime (such as rape or incest) that she either reported to law enforcement authorities or failed to report because she “reasonably believe[s] that doing so would put [her] at risk of retaliation resulting in serious bodily injury”; (2) she is a minor obtaining an abortion under judicial-bypass procedures (i.e., a minor who has a judge’s approval for obtaining an abortion without parental involvement); or (3) her fetus has a documented, irreversible medical condition or abnormality.
The statute also contains other provisions, including criminal penalties for and de-licensure of doctors who fail to comply. The above description, however, provides enough information to consider whether and how this law might or might not deviate from abortion regulations that the Supreme Court has upheld.
How Mandatory Ultrasounds Resemble Supreme-Court-Approved Burdens
The Texas law is in some respects unremarkable. A number of states (including Texas, in 2003) have passed laws that compel abortion providers to give women information, or access to information, about their embryos or fetuses prior to terminating a pregnancy. Such information might include the probable age of the fetus, as well as the means by which the woman could surrender her unwanted child for adoption if she decides to deliver the baby.
In Planned Parenthood v. Casey, the U.S. Supreme Court upheld a provision of Pennsylvania law that required abortion providers to inform each patient of the probable age of her fetus. The Justices concluded that such information would allow the woman to “apprehend the full consequences of her decision.” The Court characterized such disclosure requirements as “ensuring a decision that is mature and informed, even when in doing so the State expresses a preference for childbirth over abortion.”
Through the executive branch, moreover, the federal government has participated in regulating disclosures to women receiving medical care in Title X family-planning clinics. Initiated by the Secretary of Health and Human Services during the Reagan Administration, continued during the Bush I administration, and reinstated (post-Clinton-White-House-repeal) during the reign of George Bush II, the so-called “gag rule” prohibited doctors in such clinics from providing either information about abortion or referrals for abortion services, even when a patient specifically requested such information.
The Supreme Court upheld the gag rule in Rust v. Sullivan, holding that the government may make a policy judgment favoring childbirth over abortion, and may implement that judgment in its allocation of public funds. The Court there rejected both First Amendment and substantive Due Process arguments for striking down the gag rule.
Some readers might wonder why I would bring up the abortion gag rule here, given that the Texas law on which this column is focused mandates disclosure, while the gag order restricted disclosure. Readers could ask, “Aren’t these entirely different sorts of regulations?” I think that they are not, and that we can best understand rules regulating abortion-related disclosures by assessing them as a group.
In doing so, we find that when a disclosure might deter or burden abortion, then mandatory disclosure rules require providers to disclose information. But when a disclosure might facilitate an interested patient’s access to abortion, then the doctor must suppress information. The common denominator is, accordingly, governmental opposition to abortion, rather than a governmental investment in ensuring that patients have as much relevant information about their options as possible.
This fact—perhaps surprisingly—works in favor of the Texas Sonogram Law, because it exposes the degree to which the U.S. Supreme Court’s precedents already countenance governmental efforts to control the flow of information to pregnant women, when those efforts plainly have the objective of persuading the women to decide against abortion. In other words, from the perspective of Supreme Court precedent, Texas does nothing new when it requires abortion providers to give patients one-sided (though accurate) information about embryos, fetuses, abortion, and childbirth.
In addition to approving government efforts to convey a pro-childbirth value judgment through mandating and prohibiting disclosures to patients, the Court has also taken an expansive view of what qualifies as legitimate persuasion, as opposed to undue influence, upon the woman’s choice. In Casey, the Court approved a 24-hour waiting period between the provision of the pro-childbirth information and the abortion, finding reasonable the idea that “important decisions will be more informed and deliberate if they follow some period of reflection.”
As many critics have pointed out, the assumption implicit in the 24-hour waiting period—that women seeking abortions have yet to consider the moral implications of what they have chosen to do—seems quite patronizing and insulting to women in general, and to pregnant women seeking to terminate their pregnancies in particular. As critics have observed, as well, a waiting period can be prohibitively expensive for women who live far from an abortion provider and must therefore take several days away from work just to travel to and from the abortion location. Having to make the trip twice, for a woman who depends on her daily wages to feed herself and her family, might effectively rule out the procedure for her.
Yet the Court upheld the waiting period—at least in the context of a facial challenge (that is, a challenge to the statute itself rather than to a particular application of it)—even on a record that demonstrated the increased costs and risks of delay associated with the waiting period that would most burden women with the fewest financial resources and the greatest difficulty explaining their whereabouts to husbands, employers, and others. The Court considered the waiting period a permissible “persuasive measure” favoring childbirth over abortion.
In the second part in this two-part series of columns, which will appear here on Justia’s Verdict on June 13, Professor Colb will continue her analysis of Texas’s mandatory ultrasound law, drawing upon the Supreme Court precedents and analysis that she has discussed here in Part One, as well as Supreme Court precedents and analysis upon which she will elaborate in Part Two.