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Coercion, not Consent

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Whatever happened to a woman's right to make her own decisions about reproduction? Recent enactments raise the issue in sharp relief. The Arkansas legislature just passed a clearly unconstitutional law that prohibits abortions after 12 weeks. Not to be outdone, lawmakers in North Dakota just signed and sent along to the governor a measure that would prevent almost all abortions after a fetal heartbeat can be detected -- at around six weeks. The law will effectively require all women seeking early abortions to have a transvaginal ultrasound, because until around the 10th week of pregnancy, fetal heartbeats can only be detected in that way.

Similar measures have been tried before, but cooler heads had prevailed. Virginia tried requiring a transvaginal ultrasound for all pregnancies a couple years ago, but that proposal drowned in a whirlpool of bad press. And Indiana recently threatened to double down on a constitutional bet by requiring two separate ultrasounds of each woman choosing to terminate her pregnancy. Only after a national outcry did the state senate withdraw the bill that would have mandated one ultrasound before the procedure, and another one afterwards.

These initiatives are part of a larger surge of laws either enacted or proposed during the past two years. In creative ways unimagined just a few years earlier, states have recently been drafting and often passing an unprecedented number of measures designed to make women's access to abortion much more difficult. In a few cases, such as the laws in North Dakota and Arkansas, these statutes are sure to be struck down -- the Supreme Court has been quite clear that abortions can't be banned before the point of fetal viability. (A federal court in Idaho has already struck down that state's ban on abortions performed after 20 weeks, which is still pre-viability.)

But most other cases aren't as clear, and something quite serious is going on here. The situation isn't helped by inaccuracies or hyperbole in many accounts of the effects of these laws. If we want to understand what's at stake for women's reproductive rights, it's important to get the facts right -- starting with the ultrasound laws. Only then can the best argument against these statutes be properly framed: In the long-term, they will undermine the physician-patient relationship by making the doctor the mouthpiece of the state.

So what's the truth about ultrasounds? In the weeks of early pregnancy when many women find themselves making important decisions about whether to continue a pregnancy, a transvaginal sonogram provides the most accurate assessment of the gestational age of the fetus, which in turn informs the counseling of risks associated with terminating the pregnancy -- so that's the standard procedure. After around ten weeks, though, an abdominal ultrasound will suffice, so the less invasive procedure is then equally effective.

So, is the ultrasound outrage misplaced? Not completely. Ultrasound laws aren't designed to follow the best medical practice, but to impose the state's view on the pregnant woman. That's typical of many of the restrictive measures being enacted. Consider the Texas ultrasound law, passed in 2011. In addition to mandating a sonogram, it also requires the doctor to "display" the image and to "make audible" the fetal heartbeat. A woman has to affirmatively opt out of these requirements, and in any case she must sit through an explanation of the images (unless she falls within a few narrow exceptions, including pregnancy resulting from rape).

With rich irony, the Texas law is called "Voluntary and Informed Consent." But the consent the law requires is neither voluntary nor informed. It's deliberately coercive, and everyone knows it. When the law was temporarily blocked, Texas Gov. Rick Perry called the decision a "tragedy"for the unborn, somehow failing to mention the woman whose informed consent was supposed to be at stake. Similarly, the federal judge who struck down Idaho's 20-week law pointed out that the measure was passed over the constitutional objection of the state's attorney general - "compelling evidence" of an improper purpose to disregard women's rights to make their own decision about whether to abort, pre-viability.

Since it's obvious that the laws are really intended to compromise women's decisions, how can they be constitutionally justified? For that, we can blame the Supreme Court.

We need to start with the 40-year-old Roe v. Wade, which was the culmination of a series of cases that began in the mid-1960s involving the right to contraception. As the Supreme Court stated in Roe, the rights recognized in those earlier cases are "broad enough to encompass a woman's decision whether or not to terminate her pregnancy." And in a series of subsequent cases, the Court struck down laws that, under the guise of "informing" a woman's consent, attempted to stack the deck to influence her choice. For example, in Akron v. Akron Center for Reproductive Health (1983), the court rejected an ordinance that required physicians to disclose all sorts of information about the fetus and possible effects on the women's long-term emotional health.

But this bedrock concern about a woman's decision was fundamentally eroded in 1992, when the Supreme Court decided Planned Parenthood v. Casey. The case is best known for the Court's then-surprising decision to affirm Roe rather than to overrule it outright.But the justices watered down Roe's commitment to a woman's right to make her own reproductive choices. In particular, the Court pointedly permitted the state to place its hand on the scales a woman must balance in making her decision, and rejected the framework constructed by cases like Roe and Akron. The state could now express its "preference" for fetal life, as long as it did not impose an undue burden -- whatever that is -- on a woman's ability to terminate her pregnancy.

By that move, Casey gave the state the tools to warp the principle of informed consent, which is a requirement that comes from tort law, and is designed to ensure that patients are armed with the information they need to make intelligent decisions about their medical options. Now, under the pretext of informing a woman's choice, the state can make the woman's physician and other health care providers the government's unwilling spokespeople in expressing a "preference" for fetal life. The only restriction that remained afterCasey was that the state could not thereby create "an undue burden" on the woman's constitutional right.

What's fair game for the state to express this "preference" for life? The Court said little, except that the information must be "truthful and not misleading." The justices were mum about what methods or means might be used to acquire such information, and legislatures have exploited this silence to impose "knowledge" requirements on women that have increasingly been used to justify procedures that aren't even medically indicated -- like the proposed second ultrasound law. And if medical practice doesn't matter, what's the limit? Could a state require, say, five ultrasounds, spaced out so as to more dramatically show the fetus's gestational development? After all, the information gained would be "truthful and not misleading."

The corrosive effects of these requirements extend well beyond the fraught issue of abortion. Mucking with the physician-patient relationship by skewing informed consent will over time erode the trust that patients must place in their health care providers. The problem is even more acute when the laws aren't backed up by good, peer-reviewed science, expressed in standard medical practice. In North Dakota, for example, the law has been "justified" by the statement that a heartbeat is "a sign of life." That's true in one sense, but irrelevant to the viability issue: Could the fetus survive, on its own, outside the woman? At six weeks, the answer is of course "no," but the law is an effort to muddy the analysis.

And to the extent that these laws involve ob-gyns in performing invasive procedures that aren't otherwise indicated, they call back the not-so-distant past, when "undesirable" women and men alike were forcibly sterilized, also under the shield of "science" that was known to be wrong even at the time. Physicians are rightly concerned about losing the trust of their patients.

At a minimum, the Supreme Court needs to step in to declare that any physically invasive procedures that aren't independently justified constitute an "undue burden" on a woman's right to terminate her pregnancy. And lawmakers should think harder about what they're doing to the physician-patient relationship in the name of informed consent.