Op-Ed: Va.'s Ultrasound Bill Is Unconstitutional

Read Dahlia Lithwick's Slate op-ed "Virginia's Proposed Ultrasound Law Is An Abomination"

Virginia state legislators passed a bill requiring women to receive an ultrasound — which is conducted via transvaginal probe in the first 12 weeks of pregnancy — before having an abortion. Dahlia Lithwick, senior editor for Slate magazine, calls the proposed law "an abomination."

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NEAL CONAN, HOST:

A law that would require women to undergo ultrasound examination prior to abortion is set to pass the Virginia legislature, and Governor Bob McDonnell is expected to sign it. Similar laws are on the books in seven other states and under legal review in two more.

In a piece for Slate.com, Dahlia Lithwick described the Virginia law as an abomination, in particular because it could require a procedure she compares to state-sponsored rape. She joins us in just a moment in a conversation that will necessarily include clinical terminology that may not be appropriate for children.

We'd like to hear from women in those states with ultrasound laws. What effect did they have? Give us a call, 800-989-8255. Email talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION. Dahlia Lithwick is a senior editor and legal correspondent for Slate.com and joins us now from a studio at the University of Virginia in Charlottesville. It's nice to have you back.

DAHLIA LITHWICK: Hi, there, Neal. Thanks for having me.

CONAN: And this is like - similar to laws in these seven other states?

LITHWICK: Well, you know, one thing about the Virginia law that makes it different - other states have ultrasound laws, but most of them can be taken care of what we sort of colloquially call the jelly-on-the-belly ultrasound, the benign one that you see on TV where they squirt a water-based jelly on the mother's stomach, and then they manipulate the ultrasound from outside.

What's different about both the Texas and now the Virginia law is that it mandates a level of specificity in the image that really is going to mean that certainly in early pregnancies - and let's recall 90 percent of abortions happen in early pregnancies - that external ultrasound is not going to give sufficiently detailed information, and the Virginia statute requires the doctor to know what the gestational age is. And that's where you get this extra layer, which is that it's going to have to happen through this transvaginal procedure where a probe is actually inserted into the woman's body through her vagina and then manipulated internally, and so that's the difference. The Texas and Virginia ultrasound laws can't be kind of glossed over by saying this happens outside the woman's body.

CONAN: And you, in your piece for Slate.com - and you certainly say you're not the first to note this - say that is forcing a woman to undergo an invasive procedure, the details of which, under other circumstances, would be described as rape.

LITHWICK: That's quite right, Neal. And it's worth noting that the FBI just changed their definition of rape in January, so that the new definition is, quote, "the penetration, no matter how slight, of the vagina or anus with any body part of object or oral penetration without the consent of the victim." So that dovetails pretty perfectly with the procedure we're seeing here.

In Virginia, we have something called an object sexual penetration statute that is more precisely than our rape statute applicable to the situation. But I think in either situation you're looking at the real possibility that when doctors, for no medical reason and without the consent of the woman, are actually physically penetrating someone's body, whether it's rape or object sexual penetration, they certainly look like they're complicit in something that under any other set of facts would be a crime.

CONAN: And this is - your primary objection, of course, is, as you say, the violation of women's rights, but of course there could be doctors who object to this too.

LITHWICK: Well, and I think doctors do object to this. I think there has been a real pushback against all the ultrasound laws, not simply because doctors don't want to be commandeered by the state into doing something that's going to be an unnecessary medical procedure - and it's really important to notice here that both sides stipulate this isn't medically necessary. This is being done under the guise of an informed consent law, but there's no medical reason this needs to happen. But it's been pushback by doctors for other reasons.

For instance, in Texas the law was challenged by doctors who didn't want to have to read from a script or say things that were not medically indicated. Remember, I think the critical thing to remember is that Roe v. Wade is still good law, and the relationship that is protected in Roe is the relationship between a physician and her patient. And so the idea that you're going to turn those two against each other, you're going to have the state make the doctor do things that aren't in the patient's best interest and aren't what the doctor wants to do has really engendered an enormous amount of resistance from the medical community, for good reason.

CONAN: There are - your piece has prompted some pushback. This is a comment from Tina Korbe - I hope I'm pronouncing that correctly - at a blog called Hot Air: To equate a medical procedure that carries no real risk of negative consequences like emotional trauma or STDs with rape, which does carry such consequences, does an enormous injustice to true rape victims.

LITHWICK: And to that, I would say look at the FBI definition of rape. I think it's fairly clear that it's not just an analogy, that under the FBI's own terminology, this is a crime, and that whether or not you accept the FBI's definition or other definitions, the idea that a woman - and by the way, there is no exception in the Virginia law as it now stands for women who are themselves victims of rape, so that even they have to be arguably penetrated by their own doctors. And so it seems to me that to suggest that these are in opposite is just wrong because it's quite clear that when your doctor, without your consent - and that's really critical, Neal - Delegate David Englin tried to introduce into this discussion amendment that would've, at the very least, allowed women to consent to this procedure. So that if you were going to intrude on their bodies - not do the jelly-on-the-belly procedure but do the internal one, that they would consent and that would have also allowed doctors to opt out. That amendment was defeated, so you've taken out the component of this discussion, which is a woman's consent. And it seems to me that once you are entering a woman's body without her consent, you are in the realm of a criminal violation.

CONAN: We want to hear from women in states where the ultrasound laws are in effect. How has it changed things? Give us a call: 800-989-8255. Email: talk@npr.org. Lisa is on the line with us from Houston.

LISA: Hi. I'm an ultrasound tech in Houston, Texas, and I've dealt with a clinic that performs abortions. I just have to say that having - making the decision to have an abortion is a very difficult one for a woman no matter what the circumstance, and this law - this makes it almost impossible for a woman who's already made a very, very difficult decision. It's impacted women in a way that I wish that our male lawmakers - I don't think that they will ever understand.

CONAN: Can you tell us of a patient that had such an effect?

LISA: Women - when the probe has to be inserted, they're not ready for that. They think an ultrasound, like they said, is the jelly on the belly. And when you come with this - I'm trying to be PC - rather large probe and you tell them that you have to do this and you have to listen to the heartbeat, they're already emotionally upset, and it becomes more visible as the procedure happens, that they are visibly emotionally upset. And it just - it makes our job in the medical profession - and me as a woman and a mother - even more challenging than it really needs to be, you know?

CONAN: Does it - has it, in your experience, had women changed their mind?

LISA: I've had one woman who did change her mind, yes.

CONAN: Thanks very much for the call.

LISA: Thank you.

CONAN: Appreciate it. There's a call in from Texas. And again, if you're in a state where one of these ultrasound laws is in effect, call and tell us what change made there. And I think that gets to, Dahlia Lithwick, the point that you say these laws have in common - no matter what the individual details are - is that they are designed to prevent abortions.

LITHWICK: They are. And one of the components of the Virginia law that haven't gotten nearly as much attention and press it should, Neal, is a provision that says that whether or not you choose to watch the ultrasound - in Texas, you actually have to watch the screen. In Virginia, you can choose not to watch, but the doctor is meant to make a notation of whether you avail yourself of the opportunity to look or not. And then believe it or not, that goes on your medical record, your private medical record. Again, this is not for medical reasons, and so you have to query what is the point of having a law that serves no medical purpose, but almost exclusively, at least when it comes to putting a scarlet letter on your medical file, serves as a device to sort of shame and delegitimize the choices of women.

So I think that there's a lot, you know, there's also a waiting period in this law. So it starts to look like an unholy set of different provisions, all of which are geared, as Lisa said, to making women change their minds and to making them deeply embarrassed about a decision that's already so fraught. But also, I think when you're actually physically entering someone's body, there's an extra component of just absolute, abject humiliation that we haven't seen before in abortion statutes.

CONAN: Let's go next to Chris, and Chris is on the line with us from Norfolk in Virginia.

CHRIS: Hi, how are you?

CONAN: I'm well. Thanks.

CHRIS: I'm so astonished that the term rape is being, in any way, equated with a procedure that is meant to protect the health of both the mother and the child. I've had children. I have a father who is a doctor. My mother is an OB-GYN. And that stats that she would, in any way, qualify what they're doing in the interest of the health of the patient. You know, vaginal entry also happens during routine exams, annually, to make sure that you're healthy. I cannot believe that this is even part of the dialogue.

CONAN: Dahlia Lithwick?

LITHWICK: I mean, to Chris, I would simply say, again, when you have a routine vaginal exam, you do it consensually. The doctor asks permission and you do it. When you have sex with a partner, you do it consensually. What's missing from this bill, what is expressly been taken out of this bill is the opportunity for a woman to consent. You can use the word rape. You can use the word...

CHRIS: Well, I think that - I think that you have to also understand that for a medical professional, to ensure that no one is strapping a woman down and forcing - the tech is not going to force the instrument into her to have it. If the patient does not want that, she chooses another OB-GYN. And I think to any - in any way equate the fact that this is some sort of a violent procedure, where a woman is being thrust in, I just - I can't even tell you how bad your take is. I mean, you have young girls that you're lucky if you can get them to an annual exam, and here you are characterizing a woman's health and a doctor's ability to offer that service as some sort of a violation, you're doing such a disservice.

LITHWICK: Chris, I guess the only thing I would just say in response is that you can't go to another obstetrician, at least not in Virginia. If you opt not to have this procedure - certainly no one's strapping you down. You are not able to have an abortion. So the way to solve this...

CHRIS: Well, you know what then, maybe OB-GYNs wouldn't want to be held responsible for the medical implications that that may have in a difficult pregnancy, whether it's the health of the fetus or the mother. But, I mean, there are medical professionals that are behind this bill and to - in any way insinuate that this is somehow a violation on women is so ignorant.

CONAN: Well, I think we'll just - I think we'll have to agree to disagree on that point, Chris. Thank you very much for the phone call.

CHRIS: Absolutely. Thank you for the time.

CONAN: Dahlia Lithwick is our guest, senior editor and legal correspondent for Slate magazine. And you're listening to TALK OF THE NATION from NPR News. You're talking about informed consent. It was a point that was raised by Tim Griffin in a piece that he wrote on redstate.com. Informed consent is very important. Virginia Democrats are calling Governor McDonnell to allow women to have the power to opt out of the test through refusing consent. In many ways, this goes against our medical culture. When we, as Americans, visit our local health care providers, we like to know all the facts before undergoing a procedure.

In fact, if a doctor withholds important facts from you on a medical procedure, the doctor can be held civilly liable or worse. This test merely requires informed consent. An ultrasound performed from the outside of the mother to be at eight weeks comes out looking very unclear. Seeing an unclear photo or not seeing one at all doesn't truly give women the necessary informed consent.

LITHWICK: And, again, I would say that informed consent has that critical word consent in it. So it's amazing to me that we're talking about this as though it's voluntarily offering information to a willing patient. If it were that, the amendment to make it a consensual procedure would've passed. It didn't pass because this has nothing to do with consent, and that really is the distinction here. And one other thing that's really worth pointing out is that the studies that have been done, and there have been studies, to determine whether seeing an ultrasound image - because as you mentioned, this has existed in various states on various ways over the years - whether the effect of seeing an ultrasound is that women change their minds.

And the data is really quite amazing, Neal. One study that I cited in my piece by someone called Tracy Weitz suggests that it almost never happens that a woman cancels her procedure upon seeing an ultrasound. Dr. Jen Gunter, who's a gynecologist in California, similarly cites a 2009 study, where she says that given the option, 73 percent of the women will choose to view the image. Eighty-five percent of them thought it was actually a positive experience. This is the jelly-on-the-belly ultrasound. And then she goes on to say that not one woman changed her mind about having an abortion.

So the very predicate idea here that this somehow preserves life because women are reminded of that, which they did not know, which is that they have a life inside them, in fact, is wrong. And that the data seems to show overwhelmingly that seeing...

CONAN: And I don't mean to cut you off, I just wanted to get one more caller and if we - we have time for one more caller. Catherine's(ph) on the line calling us from Frederick, Maryland.

CATHERINE: Hello?

CONAN: Hi, Catherine. Maryland, not a state where there's an ultrasound law.

CATHERINE: No, but the Virginia law has been in our Washington Post paper, and I've been reading about it. I wanted to make a comment because I'm a strong supporter of women's rights. I'm a strong supporter of people who are fighting against laws like this. I do want to say that the issue of consent and equating this process of forcing a woman to view an ultrasound before she proceeds with an abortion is not tantamount to rape. A woman who does this procedure, who goes through all of this, is giving her consent to have this procedure done as a part of an abortion. It is not right. I think it's coercion.

But it is not the same as non-consensual penetration in a rape event. And I really wanted to make that point so clearly because I think it weakens our point to use the rape term. I think psychologically, maybe...

CONAN: And I don't mean to cut you off. I just wanted to give Dahlia a few seconds to reply.

LITHWICK: No. I would just simply say the same thing I said, which is this does, unfortunately, track the language of the Virginia object sexual penetration statute. It simply does. We can talk about the value of the rhetoric, but I think it does track the language of the FBI rape definition and the Virginia statute. And so, you know, we can call it whatever we want to call it. But the fact is it is an intrusion, and there is no consent.

CONAN: Catherine, thanks very much for the phone call. We appreciate it. And Dahlia Lithwick, thank you for your time today.

LITHWICK: Thank you, Neal.

CONAN: Dahlia Lithwick, senior editor and legal correspondent for slate.com with us from a studio in Charlottesville in Virginia. Tomorrow, Political Junkie Ken Rudin joins us for his weekly rundown on who is on top of the Republican race, and we'll look ahead to that next debate. It's the TALK OF THE NATION from NPR News.

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