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The Abortion Series: Oklahoma, Ultrasound Laws, and New Abortion Restrictions

2010 June 19
by Jacqueline Moss

Hot on the heels of the new abortions laws passed in Nebraska, Oklahoma has instituted some of its own disturbing restrictions on abortion, the most invasive and alarming of the new laws is House Bill 2780.  HB 2780 makes it a legal requirement for a woman getting an abortion to have an obstetric ultrasound, and for the physician or technician to provide a simultaneous explanation of what the ultrasound depicts.  Further, the physician or technician must display the ultrasound images so that the woman may clearly see them, and provide a medical description of the images “which shall include the dimensions of the embryo or fetus, the presence of cardiac activity, if present and viewable, and the presence of external members and internal organs, if present and viewable.”  The woman must then sign a certificate testifying that she has been subject to this gross violation of her privacy before the abortion can be legally performed.

The other laws that were passed include HB 2656, which states that “the birth of a child does not constitute a legally recognizable injury and that it contrary to public policy to award damages because of the birth of a child or for the rearing of that child.”  Essentially, this will prohibit “wrongful life” lawsuits brought by parent(s) suing for damages for a child born with birth defects when the mother was unable to obtain an abortion.  There is also HB 3070, which requires any medical facility providing abortions to post a sign stating that is against the law to be coerced or forced to have an abortion, and HB 3284, which requires a woman to answer thirty-eight questions – including why she is seeking an abortion – before the procedure can be performed.  HB 3290 prohibits state health plans from covering elective abortion.  Finally, then there is Senate Bill 1891 which created the Freedom of Conscience Act, which protects medical employees who refuse to participate in abortion procedures due to a religious or conscientious belief from being forced to participate in such procedures and from retaliation from their employers.

The overall trend in Oklahoma is a massive restriction on access to abortion, and the development of a mass bureaucracy to oversee, monitor, and collect data on abortions, the women having them, and the doctors performing the procedure.  The bureaucratic red tape the Oklahoma legislature has wrapped around abortion procedures is intended to make access to abortion an exercise in bureaucratic masochism in order to deter women from seeking abortions and doctors from performing them.  All these new restrictions and regulations serve to make obtaining an abortion even more difficult than it already is, but what is truly disturbing is that Oklahoma has become one of twenty states to require that a woman be required to view an ultrasound–while listening to a description of the fetus’ development–before being able to have a legal abortion.  These ultrasound laws invade the privacy of patients, and the confidential nature of the patient-doctor relationship.  While the State has a legal interest in regulating medicine–making sure medical procedures are safe, doctors properly licensed and credentialed, etc.–it has no place dictating medical procedures.  If these laws are challenged in the Courts, it will be likely that the State will assert it has legitimate interest in protecting prenatal life, but, legally, this is a murky area in the law.

To me, the most obvious legal argument against the spate of ultrasound requirement laws in various states is that it’s a violation of a person’s privacy.  But privacy, in the legal sense, is a tricky thing.  There is no explicit guarantee to the right of privacy in the Constitution or the Bill of Rights.  The right to privacy exists in a legal penumbra, meaning that it is a “body of rights held to be guaranteed by implication from other rights explicitly enumerated in the U.S. Constitution.”  The right to privacy–or, as it is legally defined, the zone of privacy–is “an area or aspect of life that is held to be protected from intrusion by a specific constitutional guarantee (as of the right to be secure in one’s person, house, papers, or effects against unreasonable searches or seizures) or is the object of an expectation of privacy.”  The right of privacy is tricky, because

Although not explicitly mentioned in the U.S. Constitution, a penumbral right of privacy has been held to be encompassed in the Bill of Rights, providing protection from unwarranted governmental intrusion into areas such as marriage and contraception. A person’s right of privacy may be overcome by a showing that it is outweighed by a compelling state interest.

Because even the legal definition of privacy is murky, it means that the right to privacy is a right that can be changed and interpreted differently.  Indeed, the right to privacy has changed drastically with advent of modern technology and the changing zeitgeist of society.  The only thing that can abridge one’s right to privacy is a “compelling state interest” which is “a governmental interest (as in educating children or protecting the public) which is so important that it outweighs individual rights.”  And that is the argument the Oklahoma–and other states with invasive abortion laws–will most likely present if their laws are challenged in the courts.  For example, in Justice Blackman’s majority opinion in Roe v. Wade the Court stated

…we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes ‘compelling.’

It is under the guise of a compelling state interest that Oklahoma–and states with similar ultrasound laws–can make a compelling legal argument for the legitimacy of laws like HB 2780 by asserting the States’ legitimate interest in protecting the health and welfare of mother and fetus.  This is why abortion is illegal after the point of viability, and only if there is a substantial risk to the life and health of the mother can a late-term abortion be legally performed.  But requiring that women be required to view ultrasounds of the fetuses they plan to abort while listening to detailed oral description of the fetus is abhorrent not only because it violates privacy, but also because it implies that a woman is not capable–or rational enough–to make the serious decision of having an abortion.  Interestingly, there are signs that being offered or required to view an ultrasound has a minimal impact on a woman’s decision to have an abortion, as reported in the New York Times article “In Ultrasound, Abortion Fight Has New Front”.  We can only hope that the legal psychological bullying that is HB 2780 will not scare women into making choices they did not really choose, or would regret.  Deciding to have an abortion is never an easy decision–it is always emotional–and it is insulting that states like Oklahoma believe women are not capable of making an informed choice.

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