By Scott W. Gaylord and Thomas J. Molony
Ultrasound technologist Jeanine G. conducts an abdominal ultrasound at the Idaho Statehouse in Boise, where the state legislature is considering legislation requiring women seeking an abortion to undergo an ultrasound. (AP/Joe Jaszewski, The Idaho Statesman)
The next wave of abortion regulation has arrived. With Virginia’s approving a controversial ultrasound bill recently, 23 states now have laws regulating — and sometimes, as in Alabama, requiring — the use of ultrasounds in connection with abortion procedures. Eight other states are considering similar ultrasound legislation, and the trend shows no sign of stopping.
Across the country, ultrasound laws are being hotly debated in state capitals and roundly criticized in editorial pages. Even the comic strip “Doonesbury” recently ran a storyline lambasting Texas’s law, which requires physicians to conduct an ultrasound, display the fetal images to the woman and explain those images before performing an abortion.
Amid all of the national controversy, Alabama, Kentucky, Pennsylvania and Rhode Island are considering whether to do adopt speech-and-display requirements similar to those enacted in Texas, North Carolina and Oklahoma.
Alabama Senate Bill 12 would amend current law to mandate display of ultrasound images and to require physicians to explain the images in some detail.
Much of the criticism of speech-and-display regulations reflects a passionate disagreement with the legislative policy underlying the Alabama bill. In an editorial, USA Today asserted that the purpose of “such laws has nothing to do with good medicine” but “is to dissuade women from having an abortion.” Moreover, drawing on a University of California-San Francisco study, the editors suggested that these laws are ineffective because, in the study, “[n]ot one [woman] changed her mind and decided against an abortion” after viewing an ultrasound.
Whether ultrasound laws represent good policy or are effective, though, is a separate question from whether such laws are constitutional. Under the Supreme Court’s 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, states have a right “to ensure that a woman apprehend the full consequences of her decision” and can require physicians to provide “truthful and not misleading” information about the abortion procedure and the development of the fetus. As the 5th Circuit noted in upholding the Texas speech-and-display statute, ultrasound images and descriptions of those images “are the epitome of truthful, non-misleading information.”
Those criticizing the growing number of ultrasound laws frequently ignore the fact that the Constitution permits states to try to dissuade women from having an abortion. In Casey, the court expressly acknowledged that a state may “further its legitimate goal of protecting the life of the unborn by enacting legislation aimed at ensuring a decision that is mature and informed, even when in so doing the State expresses a preference for childbirth over abortion.”
Moreover, recent empirical evidence indicates that speech-and-display laws are effective. According to a 2011 Quinnipiac study, “ultrasound requirement laws reduce the odds of a woman having an abortion quite substantially,” which is probably why speech-and-display regulations have elicited such powerful reactions on both sides of the abortion debate.
Under Casey, states have broad authority to pass abortion regulations that are reasonable and do not impose an undue burden on a “woman’s right to make the ultimate decision.” Given that ultrasounds routinely are used prior to an abortion (and, therefore, do not impose an undue burden on a woman’s decision), the recent court challenges to the Texas and North Carolina speech-and-display requirements have focused on the First Amendment rights of physicians. In particular, the physicians have argued that requiring them to display and describe ultrasound images violates their right to be free from compelled speech.
The Supreme Court already has considered — and rejected — this argument. In Casey, providers of abortion services claimed that physicians had a First Amendment right “not to provide information about the risks of abortion, and childbirth, in a manner mandated by the State.” While acknowledging that mandatory disclosures “implicate” physicians’ First Amendment rights, the court held that, in the context of “the practice of medicine,” physicians were “subject to reasonable licensing and regulation by the State” and consequently could be compelled to provide disclosures about childbirth and abortion.
The criticisms of speech-and-display requirements, therefore, must be understood for what they are — critiques of the policy choices that state legislatures across the country are making. To the extent those critical of these policy choices seek a constitutional prohibition on mandatory ultrasounds, they actually are advocating for a return to the standard set forth in Roe v. Wade, under which virtually all abortion regulations were struck down.
But Roe is not the law. Casey is. And under Casey, Alabama has substantial latitude to regulate abortion by requiring the disclosure of truthful, nonmisleading information, such as ultrasound images of the fetus within.
Scott W. Gaylord and Thomas J. Molony teach at the Elon University School of Law in Greensboro, N.C. Both professors are members of The Federalist Society. Emails: sgaylord@juno.com, tommolony@bellsouth.net.
