Life has a looking glass quality at times. The Republicans are concerned about "voting fraud" but can't handle (as Rachel Maddow notes) to count votes properly in more than one state. They don't like abortion or threats to religious liberty or wasting money, but a means to save money, further the religious liberty of employees and cut down abortions is a problem. Over at Volokh Conspiracy, we even have talk about how prevention isn't really part of health care, really, it is sort of a "liberal" ideological trick. BTW, talk about judicial activism -- January 1, 2014 is the due date here and court challenges are up already.
Unwanted "penetration of a woman’s vagina without her consent is sexual assault" (to cite a RH Reality Check story linked). Such a threat to "bodily integrity" was a key aspect cited by Planned Parenthood v. Casey as a reason for the right to choose an abortion. If removal of a bullet or pumping the stomach to expel contraband swallowed is problematic, this should be too. As with other cases, including biased informed consent requirements or religiously slanted funding moves, this problematic above and beyond merely being an undue burden on abortion. The argument is that the medically unnecessary procedure is important for full informed consent, but it is clearly not compelling on that front since it is not common practice or anything.
[Update: informed consent material inserted here.]
I abbreviated that last paragraph for editing purposes but it really should be added that this type of regulation is a direct effect of Casey, particularly when it burdens early abortion choices and is largely about prenatal life. Casey removed the trimester scheme which blocked legislation that was only about the last interest, except in the third trimester and when it didn't directly block abortion choices (funding was seen as not doing this, since poverty is not the government's fault). Now, you can do that sort of thing, unless there is a substantial burden on abortion. The ultrasound law adds expense and hardship and should be considered "undue," but it seems to me to be debatable enough that the non-abortion "liberty" concerns must be added to put it over the top.
Casey also shoehorned women's health here though Blackmun and Stevens were wary about some of the material provided given its slanted quality. Also, as Stevens noted, the fact an interest in potential life might be present does not mean it can trump the woman's interests here. Do we require newly pregnant women to hear about the costs and hardships of pregnancy and children, particularly for certain people, since it might lead them to be upset about carrying it to term later on? Perhaps, pictures of children in foster homes, after their parents couldn't care for them? Some do (as in marriage and so forth) after all regret their decision and when it comes to teenagers (and probably others), it is particularly important for them to know what is coming. Spoiler alert: we do not compel that sort of thing; we trust the women.
Informed consent is not a bad thing, but the below sentiment from Casey should be evenhandedly applied with the full interests of the patient (client) taken into consideration, including other constitutional interests:
Next month some alleged big threat to individual medical choices (inactively done) will be heard by the Supreme Court. Meanwhile, the right of women with her doctor to make a health choice following her conscience will be continuously invaded by the same side that uses this as a big issue. Women are not trusted here to make their own choices, adding a choice to have an ultrasound not the point here. The refusal to accept the amendment requiring consent when a transvaginal (never a good idea to have "vagina" as club against you) was involved underlines the point. As with the contraceptives situation, trusting the individual is not the rule here. We yet again await the true libertarians.
Also, as seen today in NJ, same sex marriage should be left to the legislature, except when it should not, moving past "civil unions" to same sex marriages must for some reason be done by public referendum. After all, if given the chance, wouldn't blacks have done that in the 1960s contra using the legislature to pass civil rights acts? Unfortunately, I'm not just being snarky -- the governor who vetoed it made that comparison.
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* According to the Guttmacher Institute, twenty states have ultrasound laws as of 2/12/12, a "mid-90s" (post-Casey) trend. Seven states require it though only Texas (two other states in legal limbo) require showing and explaining the image. If performed, nine states say the provider must allow the woman to see the image while five others require such an opportunity even if the physician would not normally perform it.
Since it often is not normal procedure (adding cost and time), particularly for early abortions, this would add costs. A report on informed consent linked by the above notes that it "can add $50–$200 to the cost." Images also might be misleading, which might be a problem at biased crisis pregnancy centers, not there to give full information and not necessarily staffed by those fully trained in prenatal development. This is why full disclosure upfront, something they repeatedly resist doing, is so important. Not just when it might promote one viewpoint.
So the problem is not just that the woman and her physician (the core relationship protected in Roe) no longer matter at all in deciding whether an abortion is proper. It is that the physician is being commandeered by the state to perform a medically unnecessary procedure upon a woman, despite clear ethical directives to the contrary.Dahlia Lithwick (via here) is but one person who shows us more situational ethics (and you thought it was some sort of leftist thing). The non-mandated insurance requirement ("mandate" = some people paying more income taxes) is according to some a nefarious "commandeering" of the people, per Paul Clement a means to avoid "upfront" accountability. Yeah, because no one knows what is going on there. Meanwhile, Virginia wants to join the "forced ultrasound" club* and who but the choir knows? A procedure as DL's links note will sometimes require an actual vagina penetration, an amendment to require consent there rejected.
Unwanted "penetration of a woman’s vagina without her consent is sexual assault" (to cite a RH Reality Check story linked). Such a threat to "bodily integrity" was a key aspect cited by Planned Parenthood v. Casey as a reason for the right to choose an abortion. If removal of a bullet or pumping the stomach to expel contraband swallowed is problematic, this should be too. As with other cases, including biased informed consent requirements or religiously slanted funding moves, this problematic above and beyond merely being an undue burden on abortion. The argument is that the medically unnecessary procedure is important for full informed consent, but it is clearly not compelling on that front since it is not common practice or anything.
[Update: informed consent material inserted here.]
I abbreviated that last paragraph for editing purposes but it really should be added that this type of regulation is a direct effect of Casey, particularly when it burdens early abortion choices and is largely about prenatal life. Casey removed the trimester scheme which blocked legislation that was only about the last interest, except in the third trimester and when it didn't directly block abortion choices (funding was seen as not doing this, since poverty is not the government's fault). Now, you can do that sort of thing, unless there is a substantial burden on abortion. The ultrasound law adds expense and hardship and should be considered "undue," but it seems to me to be debatable enough that the non-abortion "liberty" concerns must be added to put it over the top.
Casey also shoehorned women's health here though Blackmun and Stevens were wary about some of the material provided given its slanted quality. Also, as Stevens noted, the fact an interest in potential life might be present does not mean it can trump the woman's interests here. Do we require newly pregnant women to hear about the costs and hardships of pregnancy and children, particularly for certain people, since it might lead them to be upset about carrying it to term later on? Perhaps, pictures of children in foster homes, after their parents couldn't care for them? Some do (as in marriage and so forth) after all regret their decision and when it comes to teenagers (and probably others), it is particularly important for them to know what is coming. Spoiler alert: we do not compel that sort of thing; we trust the women.
Informed consent is not a bad thing, but the below sentiment from Casey should be evenhandedly applied with the full interests of the patient (client) taken into consideration, including other constitutional interests:
It cannot be questioned that psychological well being is a facet of health. Nor can it be doubted that most women considering an abortion would deem the impact on the fetus relevant, if not dispositive, to the decision. In attempting to ensure that a woman apprehend 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. If the information the State requires to be made available to the woman is truthful and not misleading, the requirement may be permissible.In the so-called "partial abortion" case, there was a fear that if the procedure was allowed, doctors would (for the sake of the sensitive women) avoid fully informing them of the procedure, so perhaps, it was best just not to have it at all. This approach is a tad better, though we are not merely talking about "information" (see footnote for a link to the importance of "ethical" use of informed consent) here, but forced medical procedures on patients. It is one thing to require abortion providers to offer ultrasounds for those who want them (some find patients appreciate the option, so do so voluntarily) but forcing the issue is different, particularly when probes need to be put in vaginas. The effects on abortion decisions are at best cloudy, so there is (even if we accept them at face value) no compelling need to force the women here. The implication that the main value is to shame women and force them to serve as conduits of a certain ideological / moral viewpoint is rather strong.
Next month some alleged big threat to individual medical choices (inactively done) will be heard by the Supreme Court. Meanwhile, the right of women with her doctor to make a health choice following her conscience will be continuously invaded by the same side that uses this as a big issue. Women are not trusted here to make their own choices, adding a choice to have an ultrasound not the point here. The refusal to accept the amendment requiring consent when a transvaginal (never a good idea to have "vagina" as club against you) was involved underlines the point. As with the contraceptives situation, trusting the individual is not the rule here. We yet again await the true libertarians.
Also, as seen today in NJ, same sex marriage should be left to the legislature, except when it should not, moving past "civil unions" to same sex marriages must for some reason be done by public referendum. After all, if given the chance, wouldn't blacks have done that in the 1960s contra using the legislature to pass civil rights acts? Unfortunately, I'm not just being snarky -- the governor who vetoed it made that comparison.
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* According to the Guttmacher Institute, twenty states have ultrasound laws as of 2/12/12, a "mid-90s" (post-Casey) trend. Seven states require it though only Texas (two other states in legal limbo) require showing and explaining the image. If performed, nine states say the provider must allow the woman to see the image while five others require such an opportunity even if the physician would not normally perform it.
Since it often is not normal procedure (adding cost and time), particularly for early abortions, this would add costs. A report on informed consent linked by the above notes that it "can add $50–$200 to the cost." Images also might be misleading, which might be a problem at biased crisis pregnancy centers, not there to give full information and not necessarily staffed by those fully trained in prenatal development. This is why full disclosure upfront, something they repeatedly resist doing, is so important. Not just when it might promote one viewpoint.