HarvardCRCL.org is proud to post submissions from our newly selected General Board members.  The following post from one of those new members discusses the Fifth Circuit’s recent decision upholding a Texas requirement to show a woman a sonogram before she can choose to have an abortion.

The United States Circuit Court of Appeals for the Fifth Circuit on January 10 upheld a Texas law requiring doctors to show sonograms to patients seeking abortions. The decision, Texas Medical Providers Providing Abortion Services v. Lakey functions as an unfortunate emblem of the court’s tendency to treat abortions as quasi-criminal acts rather than a legal medical procedures and improperly infringes upon the privacy and autonomy of patients’ and doctors’. The court cited the Supreme Court decision in Planned Parenthood v. Casey (1992) as grounds for its judgment: “States may further the ‘legitimate goal of protecting the life of the unborn’ through ‘legislation aimed at ensuring a decision that is mature and informed, even when in doing so the State expresses a preference for childbirth over abortion.’” . As long as required disclosures are truthful, non-misleading, and relevant, states are permitted to impose their use as regulation of medical practice, the court said. Information about both the fetus and the mother’s health is considered relevant. Again quoting Casey, the Fifth Circuit insisted: “In attempting 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.”

Two key ideas underlie the court’s reasoning in this case: 1) the unborn are citizens of the state, and 2) legislation of this kind is reasonably calculated and reasonably necessary to ensure mature and informed decisions by would-be mothers.

While the first idea represents one answer to an ongoing scientific, legal, and social debate regarding the definition of personhood, the second encapsulates troubling assumptions that could implicate other legal rights of doctors and women, more generally. The suggestion that a woman visiting a doctor for the purpose of obtaining an abortion is inherently at risk for making – in the words of the Casey opinion – an “immature or uninformed decision” is blatantly condescending to female patients.

The strong strain of paternalism underlying the Texas law has manifested itself elsewhere as well in recent weeks. It has surely shown itself in the contours of a roiling national debate over health insurance coverage for contraceptives — both in the vehement response of an all-male body of religious leaders who treated the issue as a matter of religious principle without any reference to women’s health, and in the stunning display of a congressional panel on birth control at which appeared not a single woman. The same strain evident in the Texas law is also present in a new Virginia proposal which would require women to subject themselves to transvaginal ultrasounds so that they might be better “informed” of the consequences of their decisions. Like Casey and Gonzalez themselves, the Fifth Circuit’s recent ruling provides troubling precedent for these types of intrusive, humiliating rituals to pass muster.

The court supported its judgment by invoking both Casey and Gonzalez v. Carhart, the 2007 Court decision affirming the essential holding of Casey and asserting that a state government “may use its voice and regulatory authority to show its profound respect for the life within the woman.” Relying on this language, the court asserts that state regulation of medical practice—insofar as “deciding that information about fetal development is ‘relevant’to a woman’s decision-making” regarding an abortion—is justified. It is unclear how the state is to determine relevance—what support it needs in the form of justifying scientific proof and/or what due process should be required. Unlike decisions made by administrative agencies, the court articulates no procedural or evidentiary requirements for rules created by the legislature.

In what other private medical proceeding are patient-doctor interactions so prescribed? The intimacy of state involvement that courts have allowed for abortion consultations enforces the false idea that abortion is not so much a medical procedure as it is a borderline criminal act. The court should recognize the legality of performing medical abortions in this country and should act accordingly.