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John W. Whitehead

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There Is Nothing Constitutional About State-Mandated Transvaginal Ultrasounds

Posted: 02/24/2012 10:36 am

"Women might consider this bill a TSA pat-down inside their vagina."--Jon Stewart, The Daily Show

Contraception and abortion are shaping up to be mobilizing issues in this year's presidential election. From disputes over whether the federal health care mandate should cover contraception and abortion to state-led efforts to undermine abortion by, among other things, requiring that women seeking to have abortions be subjected to invasive transvaginal ultrasounds without their consent, these highly partisan issues keep us divided and distracted, and incapable of doing anything to prevent the steady erosion of our rights by the powers that be.

The latest political kerfuffle to make national headlines comes out of Virginia, where women's rights advocates are mobilizing over legislation requiring that doctors act as agents of the state and subject women seeking abortions to ultrasound procedures, which in many cases would mean an invasive transvaginal probe, without their consent. This legislation encapsulates exactly how disrespectful of life and freedom the dialogue on abortion has become.

HB 462 requires that "as a component of informed consent to an abortion, to determine gestation age, every pregnant female shall undergo ultrasound imaging and be given an opportunity to view the ultrasound image of her fetus prior to the abortion." While the legislation does not specify what kind of ultrasound procedure should be used, transvaginal ultrasounds are often the primary means of detecting gestational age in the early stages of pregnancy. In carrying out a transvaginal ultrasound procedure:

The health care provider will place a probe, called a transducer, into the vagina. The probe is covered with a condom and a gel. The probe sends out sound waves, which reflect off body structures. A computer receives these waves and uses them to create a picture. The doctor can immediately see the picture on a nearby TV monitor. The health care provider will move the probe within the area to see the pelvic organs.

Bill supporters insist that the legislation's purpose is to ensure that women choosing to abort their pregnancies are fully cognizant of the ramifications of their life-changing decisions, which they aim to accomplish by presenting them with a sonogram of their unborn child. Yet as Tracy Weitz, assistant professor in the Department of Obstetrics, Gynecology & Reproductive Sciences at the University of California, San Francisco, concluded after conducting a study on how women are affected by viewing a sonogram before an abortion: "Women do not have abortions because they believe the fetus is not a human or because they don't know the truth." As Professor Weitz notes, 60 percent of abortion patients have already delivered a child, with most women having abortions because of the "material conditions of their lives."

The issue, however, is not even whether or not a transvaginal ultrasound is widely used or is medically necessary in order for a doctor to carry out an early-stage abortion. The point is that requiring doctors to carry out such invasive probes on a woman without her consent, thereby intruding upon the physician-patient relationship and reducing doctors to agents of the state, violates the Fourth Amendment's prohibition against searches by government agents. Frankly, no medical actor, doctor or otherwise, should be coerced by the state into probing a woman's body. By mandating that doctors carry out such invasive probes on a woman without her consent, the bill's sponsors trade one misdeed (abortion) for another (violating a woman's Fourth Amendment right to be free from searches by government agents).

If the Fourth Amendment to our Constitution stands for one thing, it is the right to privacy and bodily integrity. As the U.S. Supreme Court has ruled, "The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State." In order to violate an individual's right to bodily integrity, the state has to show probable cause -- that is, the state must have some evidence that the person who is subject to government scrutiny is engaged in criminal activity. Unless the Supreme Court declares otherwise, the fact remains that in getting an abortion, an individual is not engaging in criminal activity but in lawful activity in keeping with the U.S. Supreme Court's declaration in Roe v. Wade that abortion is a constitutional right.

Even those who are committed to advocating for the rights of the preborn must recognize this as the law and work within its parameters. This is not the case with HB 462 which, if enacted, would ensure that women seeking to exercise their court-sanctioned right to an abortion would be treated as if they were suspects and forcefully subjected to an invasive technique in violation of the Fourth Amendment. Doing so will render them as little more than criminal suspects in terms of this legislation.

No medical actor, doctor or otherwise, should be coerced by the state into probing a woman's body, especially not without informed consent. And by informed consent I mean that women have a right to be informed in writing that the procedure they are being forced to undergo violates their Fourth Amendment right not to be searched by a government agent -- which is exactly what the doctor would become in that instance. As such, they should also be advised that they have a right to legal counsel. In fact, if this non-consensual probe occurred anywhere outside of a doctor's office, the individual operating the probe would be charged with rape, or at the very least, criminal assault.

Moreover, sponsors of the ultrasound bills claim they are aimed at "merely bring[ing] in line the current informed-consent rules with current reproductive technology." However, their understanding of informed consent falls way short of what the Constitution requires. Rather than providing the patient with written information about the state-mandated violation of the patient's Fourth Amendment rights in the form of an ultrasound and gaining her consent, the legislation provides for informed consent only as it relates to the actual abortion procedure. In other words, the women violated by this procedure must be informed that they have a right to refuse a search of their body in the performance of a government-mandated act.

Should this particular piece of legislation be enacted as is, the future ramifications will be far-reaching. Rapid advances in science and technology without corresponding constitutional limits on the government's use of these emerging technologies have already resulted in a steady erosion of Americans' Fourth Amendment rights. We have seen this on almost every front, from the use of whole-body scanners in airports and mobile body scanners on police cars to facial-recognition software on law enforcement smart phones and surveillance drones flying over American cities.

In the absence of rigid constitutional guidelines against such orifice probes now, this legislation will open the door to the government's ability to mandate further invasions of the body for a variety of purportedly well-intentioned purposes, and it will be applied to both men and women.

While all of us who value the sanctity of life hope to see the day when life at all stages is protected, this legislation, well-meaning though it may be, is a misguided attempt at bringing about a change of heart in women opting for an abortion. Compelling women to undergo invasive and unconstitutional ultrasounds in order to have an abortion will only further politicize and polarize an issue that has little to do with politics and everything to do with human rights.

As the renowned author and ethicist C.S. Lewis observed:

Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.
 
 
 

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