Some Reflections on the Texas Pre-Abortion Ultrasound Law, a Year After Its Passage: Part Two in a Two-Part Series of Columns

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Posted in: Constitutional Law

In Part One of this two-part series of columns, I began my analysis of amendments to a Texas law, the so-called “Texas Woman’s Right to Know Act,” that require abortion providers to do the following at least 24 hours prior to an abortion 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. I have been referring to these amendments as “the Sonogram Law.” In this column, the second in this two-part series, I will continue my analysis of that law and of how it compares to abortion regulations that the Supreme Court has previously considered.

What Kind of Restriction on Abortion Fails the Supreme Court’s Undue Burden Test?

To determine whether the Sonogram Law might violate women’s right to abortion, it is useful to consider a regulation that has failed the Supreme Court’s “undue burden” standard for abortion regulations:  the Pennsylvania statute that required married patients to certify either that they had notified their husbands that they were about to undergo abortion, or that one of the law’s exceptions applied.  The Court held that such a requirement on its face violates the Constitution because it makes a difference only for those women who would not have chosen, on their own, to inform their husbands of their plans, and many of the women in this category keep their plans secret for very good reasons.  The Court stated, “[w]e must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred [by the spousal notification provision] from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases.”

In addition to the objective burden that spousal notification poses, the Court also noted the discriminatory nature of a requirement that women involve their husbands in highly personal decisions about their own bodily integrity.

Are Mandatory Ultrasounds Different?

A mandatory ultrasound differs considerably from the law struck down in Casey.  The Texas Sonogram Law does not require women to consult with, or disclose their pregnancies to, potentially abusive mates.

At the same time, however, the Sonogram Law may be meaningfully distinct from the mandatory information sessions the Court approved in Casey, as I will explain.

The Power of Images

One thing that distinguishes the Pennsylvania informed-consent requirements from the mandatory-ultrasound provision in the Sonogram Law is the difference between words and pictures.  Hearing about or reading information about the fetus’s probable age or the availability of adoption as an alternative can, no doubt, be upsetting to a woman who has made the decision to terminate her pregnancy.  She may have already thought about the different options and experienced her own grief over a choice that she would prefer not to face at all.  She can, however, choose not to read the written materials that the provider makes available, and she can tune out the words that the provider probably wishes she did not have to utter for her patients anyway.  A picture, however, is different.

Indeed, Carol Sanger has argued that by forcing a woman to look at a picture of her fetus, the government is forcibly placing her into the moral role of mother to that fetus, when she has decided not to occupy that role at all.  Whether one agrees with Professor Sanger or not, it is likely that after looking at an image of her own fetus, with its heart beating, inside her body, a woman will have a difficult time forgetting that image, even if she decides to go ahead and have the abortion.  A moving picture of her fetus may engage the woman’s emotions and make the fact of the fetus’s life and death palpable in a manner that words could not do.  To put this differently, the experience of looking at her fetus before the abortion could traumatize a pregnant woman and prove detrimental to her future mental health.

A person who believes that abortion is murder and that it ought to be illegal would likely respond that the picture is traumatic for a woman who has an abortion only because abortion is in fact violent, and the natural response to face-to-face contact with the victim of one’s intended act of violence is trauma.  No one has the right, some might suggest, to act in a manner that inflicts harm on another without—at the very least—experiencing the natural emotional consequences of engaging in such conduct.  From the perspective of those who believe abortion is murder, there is no right, in other words, to remain blissfully unaware of the violence that a person is authorizing.  Those who oppose abortion might believe that such trauma can be an important part of raising people’s consciousness about the choices they are making.

The Supreme Court Has Acknowledged That Listeners Have an Interest in Avoiding Unwanted Speech

Even if the Supreme Court is prepared to acknowledge the psychological trauma involved in unwanted ultrasound viewing, a majority might take the view that the emotional impact of speech—including communication in the form of videography—is an appropriate part of what it means for the government to speak.  Speech need not be sterile to qualify as legitimate speech.

Yet context matters.  The Court has recognized, for example, that targeting a captive audience for unwanted communications can raise concerns sufficient to allow for the regulation of even First-Amendment-protected individual speech.  In Frisby v. Schultz, for example, the U.S. Supreme Court upheld an ordinance making it “unlawful for any person to engage in picketing before or about the residence or dwelling of any individual.”  In the particular case before the Court, the people challenging the ordinance had subjected a doctor and his family to a substantial number of protesters on their doorstep whose protest was aimed at pressuring the doctor to stop performing abortions.

The Court stated in Schultz that “[t]he First Amendment permits the government to prohibit offensive speech as intrusive when the ‘captive’ audience cannot avoid the objectionable speech,” emphasizing the importance of assuring members of the community the ability to “enjoy in their houses a feeling of wellbeing, tranquility, and privacy.”  In several other cases that belong to the group of what have sometimes been called “targeted picketing” cases, including Madsen v. Women’s Health Center and Hill v. Colorado, the Court has also approved of restrictions on speech in limited zones where patients seeking medical care cannot otherwise avoid distressing confrontations with unwanted and disturbing messages.  Both Madsen and Hill happened to involve women seeking abortions and wishing to avail themselves of the government’s protection against the approach of anti-abortion protesters near the entrance to a clinic.

The context of these cases is, of course, plainly distinct from the Sonogram Law context.  In targeted-picketing decisions, the Supreme Court permits—against a First Amendment challenge—but does not require the government to step in and guard women against unwanted and otherwise unavoidable communications from abortion protesters.

It is conceptually coherent to argue that the government may choose to do any of the following:  (a) protect women from unwanted anti-abortion speech in very close proximity to an abortion clinic; (b) decline to protect women from unwanted anti-abortion speech in very close proximity to  an abortion clinic; or (c) itself (the government) engage in anti-abortion speech in very close proximity to (or even, in the case of the Sonogram Law, inside) an abortion clinic.  The Supreme Court’s targeted-picketing cases therefore do not dictate a pro-plaintiff result in Lakey (the Texas Sonogram Law case).

On the other hand, one can draw broader lessons about captive audiences from the targeted-picketing cases discussed above, lessons that might bear on Lakey as well.  The Court, in deciding the targeted-picketing cases as it did, recognized that even though individuals have the right to express themselves, other individuals have the right not to listen to the speakers’ expression, particularly in “captive audience” situations, which include entrances to abortion clinics, through which women have no choice but to pass if they seek an abortion.

In the case of the Sonogram Law, the patient seeking an abortion is a captive audience to her provider’s speech (as mandated by the State of Texas).  One might respond that the woman can choose not to have an abortion and thereby avoid exposure to the unwanted image (and possible heart sounds) of her fetus. But the Supreme Court has held that pregnant women have a constitutional right to have an abortion, so the option of not having one cannot properly represent an escape from “captivity” for the unwilling sonogram audience, any more than the options of not going home or of giving up his abortion practice would be acceptable escapes for the doctor who performs abortions and prefers not to face protesters right outside his home.

In the case of mandatory ultrasounds, as I noted above, it is the government, rather than the individual, that is speaking.  Though the government has an interest in promoting the well-being of unborn life, government speech is—by definition—entitled to no “First Amendment” protection.  At the same time, the woman exposed to images and sounds before obtaining an abortion is not only a captive audience, but also an individual who is exercising a constitutionally-protected liberty, while the “speaker” who exposes her to the unwanted imagery is the government, against which she holds that constitutionally- protected liberty.

Arguably, the interest that permits the government to limit the speech of anti-abortion protesters, notwithstanding their First Amendment rights of free speech, ought to animate the Court’s interpretation of a woman’s rights when she is a captive audience, inside a clinic, and wishes to avoid the emotional distress triggered by an unwanted, government-scripted, ultrasound.

The Use of Traumatic Imagery

I am quite conscious of the traumatic effect of imagery (and sound) in teaching my own course in animal rights.  There are many films, available on the Internet and elsewhere, that expose audiences to a sampling of grotesque and horrifying imagery from the routine practices of animal-using industries.  One such film is called “Earthlings,” and several people have suggested that I show the film to my seminar students.

I have chosen not to show this film, however, and instead to begin the course with a film called “Peaceable Kingdom:  The Journey Home” that has been carefully edited to limit the sorts of images that could cause viewers mental and emotional distress.  The film is gentle in its exposure of what happens to animals whose milk, eggs, and flesh are consumed.  I also arrange a field trip to an animal sanctuary, where visitors can meet rescued and happy versions of the sorts of animals whose flesh and reproductive secretions are typically consumed by humans—cows, pigs, chickens, turkeys, ducks, etc.  The field trip is optional, however, and does not target people who eat animals and animal products.  Every student in the course can choose to go or not to go, regardless of his or her consumption choices.

Does this mean that I would consider it unethical to compel people to watch slaughterhouse footage as a prerequisite to consuming animal products?  I am torn about this question.  If I truly believed that forcing consumers to watch such footage would lead people to become vegan, then I would be tempted to argue—just as pro-life advocates argue—that if you are going to inflict violence on innocent lives, you should not be heard to complain about the trauma of having to be exposed to the images, or the viewed reality, of a small fraction of the violence that you unleash, before you proceed.  Though tempting, however, this argument seems very punitive to me and correspondingly unappealing, from a perspective of non-violence.

I do not favor subjecting people to traumatic imagery.  In my animal rights class, I invite a number of speakers to lecture during the semester. Sometimes, invited speakers have chosen to display such imagery (in small doses), and I have expressed discomfort with that choice, though I have not censored my guests.  From a practical point of view, I also doubt that forcing people to view violent images would inspire them to become vegan, as I implied in an earlier column on a different topic.  I think that traumatizing people instead punishes them and thus generates in them a feeling of resentment at the coercion and manipulation involved.  Women in Texas undergoing abortions may feel the same way about their mandatory ultrasounds—resentful and manipulated.

Forcing unwanted imagery on people is ultimately a kind of violence, and the resulting emotional trauma is, accordingly, the wages of that violence.  It is difficult to imagine that violence will ultimately lead people to become more peaceful.

If a woman chooses to have an abortion, I think that confronting her with an undesired image of her embryo or fetus prior to the procedure is oppressive and unduly burdens her right to have her abortion.  The burden, however, may operate not by deterring her from acting—which I suspect it will not do, in most cases—but by burdening her with an image that she may never forget, as a penalty for terminating her pregnancy:  a moving photograph of what might have been.

  • Karen Bell Eisenberg

    Really thought-provoking, Sherry.

  • KDC

    It does not really matter, though, does it? These things won’t go to the courts because women will just bear up like we always do and The repugs will continue to harass women about their own bodies, until we are considered pregnant all the time because that allows them to dictate what women can and can’t do.

    Because at the end of the day, it’s not about the rights of a bundle of cells, it’s about religious oppression, gender persecution and control by power-hungry megalomaniacs. Notice that the conversation never takes the woman into account. only ever the fetus….and that stops at birth.