We hear the talks about government intrusions into health care – that this represents an extraordinary step about liberty. And I just cannot, any longer, refrain from making the observation that it is really ironic and disturbing to hear that liberty lecture come from people talking about [a] government takeover of medical care, many of whom would legislate the imposition upon women of unnecessary waiting periods, government scripted lectures, compulsory sonogram viewings, and government mandated unsafe medical procedures.The court of appeals, in an opinion written by strong anti-Roe Judge Edith Jones, overturned a a partial victory against a forced sonogram law. The biggest problem with the law was that it interfered with the doctor/patient relationship, particularly in such a way that it requires forced medical procedures. Justice Douglas in Poe v. Ullman noted the importance of free discussion between doctors and patients,* noting the privacy concerns in Doe v. Bolton: "The right of privacy has no more conspicuous place than in the physician-patient relationship, unless it be in the priest-penitent relationship." Some regulation is involved here, and allowed under precedent, more post-Casey (too much, probably), but sonograms take things to something of a new level. As do various other laws by Republican legislatures these days.
-- Walter Dellinger
The appellate court thought that district court wrong differentiated what Casey allowed, citing another appellate court's acceptance of a law requiring a woman be told that an abortion would "terminate the life of a whole, separate, unique, living human being." Well, yes, it's better than that. If that is what "accurate" means under Casey, the word (notwithstanding the appellate court rejecting its use here) is being used in an "ideological" way. Still, Casey concerned a law requiring the "physician inform the woman of the nature of the procedure, the health risks of the abortion and of childbirth, and the "probable gestational age of the unborn child." Also, the physician is to tell the woman, if she wants to see it, "the availability of printed materials published by the State describing the fetus and providing information."
The district court notes that Texas already had a law that covered this sort of thing. Requiring a sonogram and the woman to have the resulting image explained to her is a step beyond. Casey barely dealt with the First Amendment implications of the law at issue there, which the two courts here used to their advantage in contrasting ways. This includes recognizing on some level that the issue here has an ideological cast, so that coerced speech must be carefully examined. Casey leaves open some degree of lower court discretion, discretion the Supreme Court as a whole doesn't want to handle. This includes determining being required to on record say you are a victim of rape and incest before you are able to avoid this sort of thing. Ditto dispute over the vagueness of a myriad of at times confusing laws that at some point results in an "undue burden" on the right to have an abortion.
The lower court did not rest on fact that a forced ultrasound is an infringement of liberty in itself, an illicit "intrusion upon the individual's dignitary interests in personal privacy and bodily integrity." The logic of the appellate ruling would entail it being a legitimate medical test to promote state interests, including to help the patient decide whether or not to abort an embryo or fetus at a certain state of development. Still, the character of the requirement underlines that First Amendment of vagueness concerns, both of importance, is not ultimately what upsets people here. Having read discussions of this sort of law, the specific requirement of a forced medical procedure particularly appalls.
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* "The right of the doctor to advise his patients according to his best lights seems so obviously within First Amendment rights as to need no extended discussion." The limits to this right is raised in various contexts, including the right of a physician to discuss with a patient the medicial value of marijuana. When the limit is ideological in nature, red flags arise.