One of the justifications that anti-choice activists and politicians give when it comes to proposing or supporting mandatory ultrasound bills is, “It’s not a big deal, doctors already provide them before most abortions, anyway.”
If it weren’t a big deal, and they really believed that doctors almost always do one already, there would be no reason to put a mandatory law in place. But, it’s not about the ultrasound, it’s about the chance to insert government into the doctor/patient relationship only when it comes to women’s reproductive choices, health, and lives. And, as one doctor notes, it’s about turning what is usually just a part of the medical procedure into an “implement of torture.”
Dr. Pablo Rodriguez, a Rhode Island doctor who performs abortions, explains the difference to the Woonsocket Call:
“All this bill does is turn the ultrasound into a torture machine,” Rodriguez added. “You have to start turning the machine around and start describing every little part of the screen, which is hard to begin with and would serve no purpose other than to scare woman and make them change their minds. The result is to get the gestational age (of the fetus), that’s why we do the ultrasound. It’s not to be identifying parts of the fetus.
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“For the most part, under 10 weeks, it is difficult,” he added, “you have to have a knowledge of embryology and anatomy to even comprehend what you are seeing. To pretend that we can give women a course on ultrasound images in the 10 minutes it takes to do an ultrasound, it serves no purpose. It is an intrusion in the patient-physician relationship.”
Some lawmakers Rhode Island, too, has proposed a mandatory ultrasound bill for the state. Unlike many others, they have proposed the same bill for multiple years, but this year sponsors feel it may have more of a chance at passing due to all of the other bills across the country.
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’sHealth, 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.
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”?
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.
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.
Although individual states have attempted to ban abortions that are supposedly motivated by diagnoses of fetal disabilities, the latest move by the Americans United for Life represents a push to expand that strategy to legislatures nationwide.
In 2016, the anti-choice lobbying group Americans United for Life is launching the Infants’ Protection Project, a chillingly comprehensive package of cut-and-paste legislation and plans for litigation with the aim of further eroding reproductive freedoms in the United States. Folded into AUL’s plan is a distressingly common anti-choice tactic: using disabled people as pawns in an attempt to close off options to patients in need. Although individual states have attempted to ban abortions that are supposedly motivated by diagnoses of fetal disabilities, this move by the AUL represents a push to expand that strategy to legislatures nationwide.
Like many other anti-choice groups, AUL uses numerous tactics to accomplish its aims of chipping away at abortion access, but one of the most damaging is the development of generic legislation packagesdesigned for anti-choice lawmakers to use in capitals across the country. The Infants’ Protection Project includes a variety of suggested legislative templates, with examples like the “Prenatal Nondiscrimination Act” and “Perinatal Hospice Information Act,” both explicitly designed to limit abortion on the basis of disability—something that is a virtual non-issue in the United States.
The AUL template for the “Prenatal Nondiscrimination Act,” which also includes a ban on sex-selective abortion, includes a section stating that: “No person may intentionally perform or attempt to perform an abortion with knowledge that the pregnant woman is seeking the abortion solely because the unborn child has been diagnosed with either a genetic abnormality or a potential for a genetic abnormality.” This would have the effect of criminalizing any abortion based on concerns about viability, potentially including a fetal death that was threatening the life of the mother.
Meanwhile, the “Perinatal Hospice Information Act” requires that “at least twenty-four (24) hours before the abortion,” in the case of a fetus diagnosed with a lethal abnormality, “the physician who is to perform the abortion or the referring physician has informed the woman, orally and in person, that perinatal hospice services are available and offered this care as an alternative to abortion.” This kind of legislation is calculated to shame patients, much like mandatory ultrasound and counseling laws.
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Every time a law restricts abortion—by limiting the procedures available, banning abortions after a certain period or for specific reasons, or requiring that clinics meet tough standards—it interferes with the relationship between patient and provider. Every pregnancy is different, and doctors need to be able to communicate openly with patients and make decisions that are best for a given pregnancy. If a law states that a patient may not receive an abortion on the basis of a prenatal diagnosis of disability, it may discourage the use of valuable screenings, make providers afraid of performing the procedure, further stigmatize abortion, and reinforce the popular anti-choice myth that abortion providers are engaging in “eugenics.”
These laws also perpetuate stereotypes about disability: Namely, that disabled people are not themselves autonomous and need to be “protected” by anti-choice groups, and that parents would choose to abort a fetus with a diagnosis of a disability without contemplation. Such commentary positions disability as inherently lesser, but also doesn’t speak terribly well of expecting parents, who can presumably make the best choices for themselves and their families.
Such stereotypes also tend to center on Down syndrome, regarding those with Down syndrome as “angels” placed on Earth as inspirational objects rather than real people. People with Down syndrome are often used by anti-choicers to present the image of someone sweet, non-threatening, innocent, and especially “worthy” of protection. Activists and public figures who have Down syndrome and push back on Down syndrome stereotypes, like Jamie Brewer, tend to be ignored in the rush to present Down syndrome as a symbol of cute, harmless innocence.
For that matter, most studies on the subject of disability-related abortion also focus specifically on prenatal diagnosis of Down syndrome. Trends in neonatal medicine certainly play a role, as diagnoses for other genetic impairments weren’t available until relatively recently, making it difficult to conduct longitudinal studies. As commentator David Perry noted to me via email, “Down syndrome is the most common genetic condition and it’s relatively easy to detect. So lots of people know someone with Down syndrome, perceive them as significantly disabled, but likely also regard them with affection or sympathy.”
Many anti-choice advocates rely on a literature review that examined 24 studies between 1995 and 2011 for their arguments. Those researchers concluded that 67 percent of pregnancies involving Down syndrome were terminated, and that in eight studies looking at genetic anomalies in general, the termination rate varied from zero to 100 percent. That 100 percent isn’t evidence of ruthless heartlessness, but of anomalies so severe that the fetus wouldn’t, or didn’t, survive the pregnancy. What anti-choicers leave out is the fact that this study reflects a small sample size and the data is five years old. It’s highly deceptive to use the study to claim that 67 percent of disabled, or potentially disabled, fetuses are aborted overall, as the review refers to just one impairment. But anti-choicers often do just that.
In general, it is notoriously difficult to access statistics about how many people do seek abortions after obtaining a diagnosis of fetal disability. We do know, however, about the demographics of abortion in general. Ninety percent of abortions are performed in the first 12 weeks of pregnancy, with prenatal screening for genetic impairments not even being an option until after week ten at the earliest. That primary screening only assesses the risk of such impairments and doesn’t offer a definitive diagnosis. Fewer than 5 percent of abortions are performed after about 16 weeks, when more accurate diagnoses are possible. These include cases in which a fetus is nonviable, has such severe impairments that it likely won’t survive after birth, or is endangering the pregnant person. Thus, it’s likely that disability is the sole determining factor in less than 5 percent of abortions, and probably even fewer—many variables can go into reproductive health decisions, including the fact that limited clinic access forces patients to get abortions later in pregnancy.
Regardless of the actual numbers, though, there are some hard truths about abortion and disability that many on both sides glance over instead of addressing head-on.Ableism—discrimination on the basis of disability—is an acknowledged problem in the United States, and it’s one reason why parents have limited resources and may not understand the opportunities available to their children. In addition, it is extremely expensive to live with disability, and to raise a disabled child. It can cost around $250,000 to raise a nondisabled child from birth to 18. For autism alone, for example, the costs for disability services, accommodations, and other needs can cause that to balloon to $2.4 million. Raising disabled children, regardless of the impairment, tends to be more expensive, and many of those expenses are not covered with social services—in part thanks to vicious funding cuts from politicians who identify themselves as “pro-life.”
With abortion rights in particular under attack, some mainstream reproductive rights organizations have tended to focus on abortion specifically, rather than comprehensive health-care needs, including realistic concerns about the cost of raising disabled children and how to address them to ensure that money never has to be a factor in making termination decisions. Disability is not a burden and parents of disabled children are not heroic martyrs for taking on the cause, but disability is expensive, and that’s because of ableist social structures that make it so.
In an ideal world, finances wouldn’t be a contributing factor in abortion decisions—parents who want to have children would be able to have them, and could rely on social supports, fair wages, family backup, and a welcoming community to raise their children. However, that’s not the real-world truth, and finances are a repeating theme in interviews with patients who choose to terminate pregnancies. Patients interested in giving children a good chance at life may recognize that they are incapable of providing sufficient economic support, and that’s a factor in a personal medical choice that should be respected—and addressed, if the anti-choice movement truly cares about pregnancy termination. For parents looking at a prenatal diagnosis, the choice is even more acute, thanks to an awareness that from birth, a disabled child will be more expensive to raise, and few social supports will be available.
For some parents, these abortion decisions are extremely difficult and wrenching to make—whether they’re terminating a wanted pregnancy because the fetus will die, or because they understand that they don’t have the financial resources to adequately care for a child, or because they’ve seen the grim statistics on disability and sexual assault and physical abuse. However, making a termination solely because parents fear or are repulsed by a prenatal diagnosis is relatively rare, though the anti-choice movement wants to make people think otherwise with laws like these.
Unfortunately, that shift is having an effect. Disability discrimination laws don’t just turn disabled people into pawns and objects that need to be “protected.” They also raise fears in the disability community itself, with some disabled people supporting anti-choice legislation because the anti-choice movement has constructed the idea of an artificial eugenics spree.
Disabled people could be a valuable ally in the fight against assaults on reproductive freedoms. However, nondisabled people often overlook their fears, as well as the use of disability as a blunt instrument in anti-choice abortion policy. In an era where disability advocates are growing both more vocal and more frustrated with being ignored, this drives some to the side of the anti-choice camp, where at least they feel as though someone is looking out for their interests. This is driven home when nondisabled people argue passionately that abortion for disability is justified without exploring any of the nuances of such reproductive rights decisions, or without exploring their own biases.
Abortion should be available on demand and without apology, period.The pro-choice movement needs to hold its ground: Abortion is a private medical procedure that should be available to all patients who need it, regardless of the reason, and patients should not have to justify their abortions to anyone. Moreover, the left should be pushing back against cynically targeted bills like these, recognizing them for what they are: another stealthy tactic to reduce abortion access. At the same time, mainstream reproductive rights organizations must not ignore the fact that living disabled people are being sexually assaulted, forcibly sterilized, denied the right to be parents, and refused even the dignity of being able to marry their partner—and work to address those injustices even as they hold fast against assaults on rights from conservatives.