On March 21, 2007, the South Carolina House passed an “Ultrasound Bill” that requires physicians to perform an ultrasound on a woman seeking an abortion and then compel her to “review” the image before proceeding with the abortion. According to both proponents and opponents of the legislation, the legislature hopes that requiring a woman to view ultrasound images of her fetus will discourage her from having an abortion. If this bill ultimately becomes law, it would be the first of its kind in the country.
While the Supreme Court generally gives states wide latitude to regulate abortion, this bill should be found unconstitutional. It creates an “undue burden” on a patient’s right to choose whether to have an abortion, for three reasons. First, it creates a mechanism for imposing certain “information” on patients that is coercive. Second, viewing an ultrasound does not provide the patient with any new or helpful information and thus does not facilitate informed decision-making. Finally, requiring a woman to undergo an ultrasound and view the image presents a psychological obstacle to women seeking abortion that could jeopardize their physical and mental health.
The “Undue Burden” Test
The Supreme Court established the current test for determining when government regulation of abortion is unconstitutional in Planned Parenthood v. Casey. Under Casey, states can enact laws that ensure a “thoughtful and informed” choice and provide a “reasonable framework” for a woman to make a decision about abortion. The state may also enact rules and regulations designed to “encourage [the woman] to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term.” On the other hand, regulation that “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” would be considered an undue burden, and therefore unconstitutional. In short, while the state can express a preference for childbirth through its laws, it can only do so in a way that is reasonable and respects the woman’s right to make an informed choice.
As written, the South Carolina bill undermines both of these constitutional requirements. First, it is not clear from the bill what “information” becomes available to the patient from viewing an ultrasound image. South Carolina already requires physicians to make available to the patient information about fetal age and viability, which can be done effectively through a conversation between the physician and patient. This bill goes further, however, by requiring the patient to have an ultrasound that may not be medically necessary and to view the ultrasound image of the fetus.
No reasonable or scientifically sound basis for this provision has been offered. Rather, this viewing requirement seems to be a psychological tool designed to provoke a strong emotional response that will cause women to change their minds and decide not to have the abortion. The only purpose of such a requirement could be to force a woman to contemplate that she is about to terminate the life of a human fetus. The implicit assumption underlying such a requirement is that women do not or cannot appreciate this fact without state interference. Unless one truly believes that women seeking abortions are oblivious to this fact, this assumption is condescending to women and makes an already incomprehensibly traumatic and difficult decision-making process even more traumatic.
Second, the bill’s language seems to eliminate the patient’s choice to refuse to review the mandated ultrasound. This coercive structure is inconsistent with the current framework established by the Court. Whenever the Court discusses the limits of states’ rights in regulating abortion counseling, it affirms a regulatory paradigm that encourages the flow of information to enable an informed choice. Forcing the woman to view an ultrasound against her will does not facilitate informed choice. Rather, the mandate evidences a desire to discourage women from having abortions by forcing them to undergo a psychically traumatic and undesired event as a prerequisite to exercising their rights. This coercive language is also inconsistent with the regulatory structure found in other state regulations that have been upheld by the Supreme Court. Under these laws, physicians have the responsibility to inform women of the availability of certain information, but the patient retains the right to decide whether to review the information.
Beyond Abortion Rights
One of the most troubling aspects of this bill is neither unique to abortion nor derivative of the special constitutional protections for protecting women’s privacy rights. The bill violates the most fundamental principles of medical ethics by forcing physicians to act in a way that undermines patient autonomy and potentially jeopardizes patients’ physical and emotional health. It is these ethical violations that provide the most compelling support for why the bill is an unreasonable regulation and an undue burden on women seeking abortion.
There are three foundational principles of medical ethics that govern every physician-patient relationship: beneficence, autonomy, and justice. The first one is pretty simple – physicians have an ethical obligation to use their expertise to help patients by healing them or enhancing their quality of life, while avoiding doing harm. Because most medical treatment has some inherent risk of harm, physicians must minimize the risk of harm and make sure that any risk is commensurate with the potential benefit of treatment.
The autonomy principle protects a patient’s right to bodily integrity and ensures that the patient will be the final decision-maker about what medical treatment is undertaken. Autonomy is enforced through the legal requirement of informed consent, which requires physicians to provide patients with relevant information about the risks, benefits, and alternatives of treatment before getting consent to treat. Autonomy and informed consent are usually used to ensure that the patient has received enough information to make an informed decision to consent to treatment. However, this principle has also been used to allow patients to refuse to hear certain information when they believe it would do more harm than good. For example, when a patient believes that certain information could trigger an irrational fear or an emotional response that would undermine his or her ability to seek treatment, the patient can refuse to hear this information. In such cases, the patient is obviously aware that information relevant to the decision-making process exists, but the patient believes that reviewing the information will hamper his or her decision.
To illustrate the importance of this principle and its practical effect, I would like to share a personal experience that is outside of the emotionally charged issue of abortion. Not long ago, a relative of mine had to have surgery that required general anesthesia. While physicians typically must disclose a list of the risks associated with surgery and the use of anesthesia, my relative did not want this information. She already had such an extreme fear of anesthesia (even she acknowledged it was irrational) that nothing the physician could tell her would rise to the level of risk she already imagined. She felt strongly that she should have the operation for sound medical reasons and was generally aware of the types of risks that existed. Nonetheless, she feared that getting more information about the risks, even if the purpose was to give her a more optimistic perspective, would only exacerbate her fears. She refused to hear this information because she believed that it would either frighten her too much to go through with the operation or that it would put her in such a state of dread that it could jeopardize her recovery. The physician respected her decision and performed the surgery successfully.
This example illustrates how the first two ethical principles work together to encourage the kind of communication between a physician and patient that engenders trust, respects the patients’ values, and facilitates agreement on the most appropriate form of treatment in every medical decision-making process. Violations of these principles are not only unethical; they can jeopardize patients’ health care. The South Carolina bill is a violation of these principles in the abortion context.
On its face, the South Carolina bill claims to justify its ultrasound viewing requirement in the autonomy principle when it states that a physician must review the ultrasound with the patient in order to secure “informed consent.” Even assuming for the sake of argument that a mandatory viewing of the fetus actually yields meaningful information, eliminating a patient’s right to refuse such information is inconsistent with established informed consent and autonomy principles. Using physicians to force this on patients is particularly dangerous because it subverts the elements of choice and trust critical to every patient-physician relationship.
Moreover, forcing a woman to view an ultrasound of her fetus against her will creates an environment that is intimidating, hostile, and psychologically coercive. No relevant information can be discerned from this viewing that could not be communicated in other less hostile ways. Requiring a medically unnecessary ultrasound and viewing of the image unjustifiably creates a risk to the woman’s emotional well-being during an already difficult time. It is particularly noteworthy that amendments exempting victims of rape or incest from the mandatory viewing were rejected.
Perhaps most importantly, this bill creates the potential for serious physical harm, especially in women for whom abortion is recommended to save their health or life. As I tried to illustrate in my example above, this bill could jeopardize women’s physical health if the trauma of the viewing causes a woman to avoid an abortion that is otherwise medically necessary or causes her to delay treatment until a time when the risks to her health are much greater. To the extent that the South Carolina bill forces physicians to participate in creating such emotional and physical risks to their patients, it puts physicians in a horrible position of either violating their ethical obligation to avoid doing harm to patients or violating the law.
The essential problem with the South Carolina bill is that it tries to discourage abortion through coercive, psychically traumatic means and with utter disregard to the emotional or physical health needs of the individual patient. If the goal or effect of the South Carolina bill is to create an environment that is so intimidating, hostile, and psychologically coercive that it would effectively prevent a patient from seeking an abortion that she had determined was otherwise necessary, then the bill is unreasonable and falls squarely within the Supreme Court’s prohibition on laws that have the “purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion.”