New Oklahoma Law Forces Ultrasounds

Amie Newman

New legislation passed in Oklahoma mandates ultrasounds for all women seeking abortion, forces women to view the ultrasound and requires doctors to recite a script describing the ultrasound.

It all started in 2007 in South Carolina — a first-of-its-kind bill was introduced requiring women to view an ultrasound before an abortion. By the time the bill was sent to the governor's desk, it was slightly less pernicious — it didn't require women to view ultrasounds, just that physicians offer them. Since then we've seen similar bills pass like the wind across a total of 12 states, including in South Dakota, Michigan, Utah, Georgia, Idaho and Wisconsin, requiring doctors to offer women an ultrasound and to be "given the opportunity to view the ultrasound."

Now a new round of ultrasound legislation is spreading across the country — it has already hit Louisiana, Alabama and Mississippi — and this time, women are forced to view the ultrasounds. Women must also listen to, in detail as outlined by law, information on the ultrasound and to certify in writing that all this has been done. In Oklahoma a law has just been passed that even some anti-choice advocates don't want to see instituted.

This week, in an override of Oklahoma's Governor Brad Henry's veto, the state Congress passed an omnibus abortion bill that both the Oklahoma State Medical Association and the Oklahoma chapter of the Association for Obstetricians and Gynecologists (ACOG) opposed on the grounds that it is invasive (on both a literal and figurative level) for both patient and physician, paves the way for more lawsuits, punishes physicians with outrageous fines, legislates that the providers post signs and even mandates what the signs must say, and forces the doctors to use certain language when talking to their patients about what they are seeing in the ultrasound.

More specifically, the law requires physicians to perform a vaginal ultrasound (if that option provides the best image, which it almost always does for pregnancies in the first trimester) one hour prior to an abortion on women who seek an abortion and to point out features like the heartbeat as well as fetal development – even if the woman has been a victim of rape. Yes, you read that correctly. The bill kindly allows that a woman may "avert her eyes" while receiving the vagina probe but there is no option, according to Dr. Dana Stone, chair of the state's chapter of ACOG, to "opt out of the procedure."

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Now, not only do we have legislators mandating what kinds of information women receive but also what kinds of medical care they should receive. But the bill goes farther than that – much farther.

The law levies extreme fines against physicians who fail to comply. And also allows for new avenues for doctors to be sued. If a physician fails to send a written explanation of any adverse reaction to a medication abortion a woman experiences to her or his State Board of Medical Licensure the physician can be fined anywhere from $10,000 to more than $100,000. In addition, both the father of the baby and the maternal grandparents are given the right to sue the doctor for violating the new law. Dr. Stone correctly points out that this is not a conservative stance in the slightest.

Dr. Dana Stone knows a lot about this bill — against which she desperately fought. She sent talking points to her Senators prior to the passage of the bill outlining the various problems. She also attempted to get an op-ed published in the largest daily newspaper in the state, The Daily Oklahoman, prior to its passage into law. But she was turned down by the Opinion page editor with this response:

"The bill you reference passed the House by an overwhelming margin on Tuesday, having also gotten overwhelming support in the Senate. It is thus too late to urge readers to contact lawmakers [emphasis mine] to vote against the bill."

In fact, the editor was wrong. It was not "too late to urge readers to contact lawmakers to vote against the bill." The Senate had not yet voted on the legislation — there was an opportunity for readers to act if they so chose. Even more disturbing than the editor's mistake was his decision not to publish commentary from one of their state's leading expert medical voices.

Here is the rejected letter:

The people I admire most stand by their bedrock values, even when those values benefit people with whom they disagree. Republicans have long promoted the conservative principle of limited government. They believe that government intervention is often misguided, and most decisions are best left to the individuals and organizations closest to any issue. I hold that belief as well. I am stunned, then, that a Republican-sponsored bill in the state legislature would take government invasion to the extreme. Senator Todd Lamb has sponsored a bill that mandates an unnecessary, invasive test before a woman can undergo a medical procedure she is paying for herself. The fact that Senate Bill 1878 deals with the controversial issue of abortion and claims to work for informed consent should not make this government intrusion any more acceptable to true conservatives. The bill requires a woman to endure an ultrasound performed by a probe placed in her vagina, even against her wishes, before a pregnancy termination is done. Other simple alternatives exist to educate a woman about the development of an embryo. The state of Oklahoma cannot justify this personal and intimate violation. Pro-choice and pro-life Oklahomans who find this level of government intrusion offensive should contact their state legislators and ask them to vote against this bill.

Dana Stone, M.D, Oklahoma City

In an AP article about the law, Oklahoma Rep. Rebecca Hamilton offered this astoundingly insensitive commentary on the debate: "I've had numerous ultrasounds in my life, and they're not that onerous…It's not that big a deal."

Yes, ladies – just get over it. Being forced by the government to have a vaginal ultrasound, view the ultrasound, listen to a physician go through a government imposed speech about the ultrasound image and then sign a piece of paper so that the government knows you've gone through their imposed ringer is just "not a big deal," okay?

And, really, why listen to the doctors on this one? We've got elected officials who clearly feel they've got a handle on health care provision, as evidenced by this section in the law detailing what physicians must do:

1. Perform an obstetric ultrasound on the pregnant woman, using either a vaginal transducer or an abdominal transducer, whichever would display the embryo or fetus more clearly;

2. Provide a simultaneous explanation of what the ultrasound is depicting;

3. Display the ultrasound images so that the pregnant woman may view them;

4. Provide a medical description of the ultrasound images, which shall include the dimensions of the embryo or fetus, the presence of cardiac activity, if present and viewable, and the presence of external members and internal organs, if present and viewable; and

5. Obtain a written certification from the woman, prior to the abortion, that the requirements of subsection B have been complied with; and

6. Retain a copy of the written certification prescribed by paragraph 5 of this subsection. The certification shall be placed in the medical file of the woman and shall be kept by the abortion provider for a period of not less than seven (7) years. If the woman is a minor, then the certification shall be placed in the medical file of the minor and kept for at least seven (7) years or for five (5) years after the minor reaches the age of majority, whichever is greater.

These kinds of laws are misleading and unnecessary on so many levels it's hard to know where to start. Anti-choice advocates are brilliant at enacting legislation based on invisible claims of wrong-doing, pretending to care about women's health and well-being when in fact they are using precious legislative, human and financial resources that could be funneled towards laws and advocacy that actually help women; laws that expand health care coverage, protect women from domestic violence, provide needed resources for child-care and more.

Here's to hoping that physicians and health care consumers can come together more cohesively to challenge new laws that mandate the way physicians provide care and the way patients receive it.

News Sexual Health

State with Nation’s Highest Chlamydia Rate Enacts New Restrictions on Sex Ed

Nicole Knight Shine

By requiring sexual education instructors to be certified teachers, the Alaska legislature is targeting Planned Parenthood, which is the largest nonprofit provider of such educational services in the state.

Alaska is imposing a new hurdle on comprehensive sexual health education with a law restricting schools to only hiring certificated school teachers to teach or supervise sex ed classes.

The broad and controversial education bill, HB 156, became law Thursday night without the signature of Gov. Bill Walker, a former Republican who switched his party affiliation to Independent in 2014. HB 156 requires school boards to vet and approve sex ed materials and instructors, making sex ed the “most scrutinized subject in the state,” according to reproductive health advocates.

Republicans hold large majorities in both chambers of Alaska’s legislature.

Championing the restrictions was state Sen. Mike Dunleavy (R-Wasilla), who called sexuality a “new concept” during a Senate Education Committee meeting in April. Dunleavy added the restrictions to HB 156 after the failure of an earlier measure that barred abortion providers—meaning Planned Parenthood—from teaching sex ed.

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Dunleavy has long targeted Planned Parenthood, the state’s largest nonprofit provider of sexual health education, calling its instruction “indoctrination.”

Meanwhile, advocates argue that evidence-based health education is sorely needed in a state that reported 787.5 cases of chlamydia per 100,000 people in 2014—the nation’s highest rate, according to the Centers for Disease Control and Prevention’s Surveillance Survey for that year.

Alaska’s teen pregnancy rate is higher than the national average.

The governor in a statement described his decision as a “very close call.”

“Given that this bill will have a broad and wide-ranging effect on education statewide, I have decided to allow HB 156 to become law without my signature,” Walker said.

Teachers, parents, and advocates had urged Walker to veto HB 156. Alaska’s 2016 Teacher of the Year, Amy Jo Meiners, took to Twitter following Walker’s announcement, writing, as reported by Juneau Empire, “This will cause such a burden on teachers [and] our partners in health education, including parents [and] health [professionals].”

An Anchorage parent and grandparent described her opposition to the bill in an op-ed, writing, “There is no doubt that HB 156 is designed to make it harder to access real sexual health education …. Although our state faces its largest budget crisis in history, certain members of the Legislature spent a lot of time worrying that teenagers are receiving information about their own bodies.”

Jessica Cler, Alaska public affairs manager with Planned Parenthood Votes Northwest and Hawaii, called Walker’s decision a “crushing blow for comprehensive and medically accurate sexual health education” in a statement.

She added that Walker’s “lack of action today has put the education of thousands of teens in Alaska at risk. This is designed to do one thing: Block students from accessing the sex education they need on safe sex and healthy relationships.”

The law follows the 2016 Legislative Round-up released this week by advocacy group Sexuality Information and Education Council of the United States. The report found that 63 percent of bills this year sought to improve sex ed, but more than a quarter undermined student rights or the quality of instruction by various means, including “promoting misinformation and an anti-abortion agenda.”

Analysis Law and Policy

After ‘Whole Woman’s Health’ Decision, Advocates Should Fight Ultrasound Laws With Science

Imani Gandy

A return to data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous "informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

Whole Woman’s Health v. Hellerstedt, the landmark U.S. Supreme Court ruling striking down two provisions of Texas’ omnibus anti-abortion law, has changed the reproductive rights landscape in ways that will reverberate in courts around the country for years to come. It is no longer acceptable—at least in theory—for a state to announce that a particular restriction advances an interest in women’s health and to expect courts and the public to take them at their word.

In an opinion driven by science and data, Justice Stephen Breyer, writing for the majority in Whole Woman’s Health, weighed the costs and benefits of the two provisions of HB 2 at issue—the admitting privileges and ambulatory surgical center (ASC) requirements—and found them wanting. Texas had breezed through the Fifth Circuit without facing any real pushback on its manufactured claims that the two provisions advanced women’s health. Finally, Justice Breyer whipped out his figurative calculator and determined that those claims didn’t add up. For starters, Texas admitted that it didn’t know of a single instance where the admitting privileges requirement would have helped a woman get better treatment. And as for Texas’ claim that abortion should be performed in an ASC, Breyer pointed out that the state did not require the same of its midwifery clinics, and that childbirth is 14 times more likely to result in death.

So now, as Justice Ruth Bader Ginsburg pointed out in the case’s concurring opinion, laws that “‘do little or nothing for health, but rather strew impediments to abortion’ cannot survive judicial inspection.” In other words, if a state says a restriction promotes women’s health and safety, that state will now have to prove it to the courts.

With this success under our belts, a similar return to science and data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous “informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

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In Planned Parenthood v. Casey, the U.S. Supreme Court upheld parts of Pennsylvania’s “informed consent” law requiring abortion patients to receive a pamphlet developed by the state department of health, finding that it did not constitute an “undue burden” on the constitutional right to abortion. The basis? Protecting women’s mental health: “[I]n an attempt to ensure that a woman apprehends the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”

Texas took up Casey’s informed consent mantle and ran with it. In 2011, the legislature passed a law that forces patients to undergo a medical exam, whether or not their doctor thinks they need it, and that forces them to listen to information that the state wants them to hear, whether or not their doctor thinks that they need to hear it. The purpose of this law—at least in theory—is, again, to protect patients’ “mental health” by dissuading those who may be unsure about procedure.

The ultra-conservative Fifth Circuit Court of Appeals upheld the law in 2012, in Texas Medical Providers v. Lakey.

And make no mistake: The exam the law requires is invasive, and in some cases, cruelly so. As Beverly McPhail pointed out in the Houston Chronicle in 2011, transvaginal probes will often be necessary to comply with the law up to 10 to 12 weeks of pregnancy—which is when, according to the Guttmacher Institute, 91 percent of abortions take place. “Because the fetus is so small at this stage, traditional ultrasounds performed through the abdominal wall, ‘jelly on the belly,’ often cannot produce a clear image,” McPhail noted.

Instead, a “probe is inserted into the vagina, sending sound waves to reflect off body structures to produce an image of the fetus. Under this new law, a woman’s vagina will be penetrated without an opportunity for her to refuse due to coercion from the so-called ‘public servants’ who passed and signed this bill into law,” McPhail concluded.

There’s a reason why abortion advocates began decrying these laws as “rape by the state.”

If Texas legislators are concerned about the mental health of their citizens, particularly those who may have been the victims of sexual assault—or any woman who does not want a wand forcibly shoved into her body for no medical reason—they have a funny way of showing it.

They don’t seem terribly concerned about the well-being of the woman who wants desperately to be a mother but who decides to terminate a pregnancy that doctors tell her is not viable. Certainly, forcing that woman to undergo the painful experience of having an ultrasound image described to her—which the law mandates for the vast majority of patients—could be psychologically devastating.

But maybe Texas legislators don’t care that forcing a foreign object into a person’s body is the ultimate undue burden.

After all, if foisting ultrasounds onto women who have decided to terminate a pregnancy saves even one woman from a lifetime of “devastating psychologically damaging consequences,” then it will all have been worth it, right? Liberty and bodily autonomy be damned.

But what if there’s very little risk that a woman who gets an abortion experiences those “devastating psychological consequences”?

What if the information often provided by states in connection with their “informed consent” protocol does not actually lead to consent that is more informed, either because the information offered is outdated, biased, false, or flatly unnecessary given a particular pregnant person’s circumstance? Texas’ latest edition of its “Woman’s Right to Know” pamphlet, for example, contains even more false information than prior versions, including the medically disproven claim that fetuses can feel pain at 20 weeks gestation.

What if studies show—as they have since the American Psychological Association first conducted one to that effect in 1989—that abortion doesn’t increase the risk of mental health issues?

If the purpose of informed consent laws is to weed out women who have been coerced or who haven’t thought it through, then that purpose collapses if women who get abortions are, by and large, perfectly happy with their decision.

And that’s exactly what research has shown.

Scientific studies indicate that the vast majority of women don’t regret their abortions, and therefore are not devastated psychologically. They don’t fall into drug and alcohol addiction or attempt to kill themselves. But that hasn’t kept anti-choice activists from claiming otherwise.

It’s simply not true that abortion sends mentally healthy patients over the edge. In a study report released in 2008, the APA found that the strongest predictor of post-abortion mental health was prior mental health. In other words, if you’re already suffering from mental health issues before getting an abortion, you’re likely to suffer mental health issues afterward. But the studies most frequently cited in courts around the country prove, at best, an association between mental illness and abortion. When the studies controlled for “prior mental health and violence experience,” “no significant relation was found between abortion history and anxiety disorders.”

But what about forced ultrasound laws, specifically?

Science has its part to play in dismantling those, too.

If Whole Woman’s Health requires the weighing of costs and benefits to ensure that there’s a connection between the claimed purpose of an abortion restriction and the law’s effect, then laws that require a woman to get an ultrasound and to hear a description of it certainly fail that cost-benefit analysis. Science tells us forcing patients to view ultrasound images (as opposed to simply offering the opportunity for a woman to view ultrasound images) in order to give them “information” doesn’t dissuade them from having abortions.

Dr. Jen Gunter made this point in a blog post years ago: One 2009 study found that when given the option to view an ultrasound, nearly 73 percent of women chose to view the ultrasound image, and of those who chose to view it, 85 percent of women felt that it was a positive experience. And here’s the kicker: Not a single woman changed her mind about having an abortion.

Again, if women who choose to see ultrasounds don’t change their minds about getting an abortion, a law mandating that ultrasound in order to dissuade at least some women is, at best, useless. At worst, it’s yet another hurdle patients must leap to get care.

And what of the mandatory waiting period? Texas law requires a 24-hour waiting period—and the Court in Casey upheld a 24-hour waiting period—but states like Louisiana and Florida are increasing the waiting period to 72 hours.

There’s no evidence that forcing women into longer waiting periods has a measurable effect on a woman’s decision to get an abortion. One study conducted in Utah found that 86 percent of women had chosen to get the abortion after the waiting period was over. Eight percent of women chose not to get the abortion, but the most common reason given was that they were already conflicted about abortion in the first place. The author of that study recommended that clinics explore options with women seeking abortion and offer additional counseling to the small percentage of women who are conflicted about it, rather than states imposing a burdensome waiting period.

The bottom line is that the majority of women who choose abortion make up their minds and go through with it, irrespective of the many roadblocks placed in their way by overzealous state governments. And we know that those who cannot overcome those roadblocks—for financial or other reasons—are the ones who experience actual negative effects. As we saw in Whole Woman’s Health, those kinds of studies, when admitted as evidence in the court record, can be critical in striking restrictions down.

Of course, the Supreme Court has not always expressed an affinity for scientific data, as Justice Anthony Kennedy demonstrated in Gonzales v. Carhart, when he announced that “some women come to regret their choice to abort the infant life they once created and sustained,” even though he admitted there was “no reliable data to measure the phenomenon.” It was under Gonzales that so many legislators felt equipped to pass laws backed up by no legitimate scientific evidence in the first place.

Whole Woman’s Health offers reproductive rights advocates an opportunity to revisit a host of anti-choice restrictions that states claim are intended to advance one interest or another—whether it’s the state’s interest in fetal life or the state’s purported interest in the psychological well-being of its citizens. But if the laws don’t have their intended effects, and if they simply throw up obstacles in front of people seeking abortion, then perhaps, Whole Woman’s Health and its focus on scientific data will be the death knell of these laws too.