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In Defense of the Sacred Fetus: Court Orders Enforcement of Texas Abortion Law

The attack on reproductive rights in the United States is likely to heat up in 2012, and we have an early entrant in the race to the bottom in the form of a court decision that went through on Friday, ordering the immediate enforcement of a mandatory sonogram law in Texas. More specifically:

The law, enacted in 2011, requires abortion providers to perform an ultrasound on pregnant women, show and describe the image to them, and play sounds of the fetal heartbeat. Though women can decline to view images or hear the heartbeat, they must listen to a description of the exam…unless she qualifies for an exception due to rape, incest or fetal abnormality.

This is not the first state with such a law and I fear it’s going to become a growing trend in the US, right along with dismembered fetus anti-abortion ads on television. The right wing is bent on making abortions as difficult to access as possible through every possible means, and that includes coercive, invasive, and unwanted interference from their medical providers. As spelled out under the law, this is yet another hoop in the series people with unwanted or dangerous pregnancies must jump through to get access to medical care, and it’s a humiliating and shaming one.

It’s also, as was argued by reproductive rights advocates, a potential free speech infringement on abortion providers, who would be required to comply with the law even if they didn’t agree with it. The court felt this was not the case; apparently, if you want to be a doctor, nurse, or other care provider involved in the provision of abortion services, you need to comply with laws you vehemently disagree with. The government, affirmed by the court, can order you to shame and humiliate your patients before you can proceed with the treatment they are requesting.

Laws of this nature literally put mouths in the words of abortion providers. I cannot even begin to understand how this does not violate free speech rights; making someone say something is just as bad as denying someone the opportunity to say something. Legal scholars among us, I suspect, will have more insight into this aspect of the decision and I’d be curious to hear their thoughts.

Meanwhile, pharmacists can refuse to dispense medications because doing so would violate their beliefs, claiming a “conscience clause.” Care providers can refuse to participate in abortion services (including treatment for miscarriages) under the same “conscience clause” protection. But people who feel subjecting a patient to an invasive and cruel proceeding can’t refuse because it violates their conscience. There is a clear double standard here, and one I am not terribly impressed with.

Sparks [a US District Judge who originally put enforcement on hold] wrote the law “compels physicians to advance an ideological agenda with which they may not agree, regardless of any medical necessity, and irrespective of whether the pregnant women wish to listen.” (source)

Texas, and other states with coercive pre-abortion sonogram laws, has written ideology directly into the law books. And it’s an anti-reproductive justice, anti-autonomy, anti-sound medicine ideology. It’s an ideology that directly endangers patients, partners, and family, and it constitutes a significant interference in the practice of medicine. It’s curious that many of the people advocating for such laws make a lot of noise about “state’s rights” and “independence,” except, apparently, for any circumstances involving pregnancy and medical services related to it.

According to the Guttmacher Institute, “routine ultrasound is not considered medically necessary as a component of first-trimester abortion.” The only reason to have such a law, in other words, is to attempt to coerce people into not getting abortions. Advocates for such laws, of course, claim that people don’t know what they really want, and thus need one last chance to back out of the procedure; this despite the fact that at facilities offering abortion with a reproductive justice focus, patients are provided with counseling, opportunities to talk, and numerous chances to decline the procedure and pursue alternatives, in a pressure-free environment. The goal is not to churn out abortions, but to make sure patients get the medical care they need, whatever that might be.

Guttmacher also points out that ultrasound laws add substantially to the cost of abortion, making it further inaccessible to low-income people. Yet another tactic to make it harder for people to get the safe and compassionate health care services they need. It doesn’t just create problems for patients, but also for providers, some of whom may be effectively forced out of business by increasingly byzantine regulations that make it harder and harder for them to operate within the law. This, too, is deliberate; lawmakers claim it is to protect the public, but of course what they really want is to make it impossible for people to get abortions by closing down abortion providers and creating an endless series of obstacles for patients that limits their access to the few providers available.

The fight for full access to safe and compassionate abortion services has never really stopped, but 2012 is going to be particularly vicious. As Akiba Solomon points out, it will also be heavily focused on women of colour, as indeed the war on reproductive rights has been all along. We cannot allow anyone to become a casualty of a vicious political agenda that is designed to dehumanise and turn pregnant people into a second class, and it looks like we’re going to be putting out fires in all corners of the country this year.

I value access to health services for all, and that is something we should all be fighting for, which means considering the complex intersections involved in reproductive rights at the same time we don’t lose track of the larger picture. That means talking about disability, talking about race, talking about class, talking about gender, in the ongoing efforts to protect access to reproductive health services for everyone. These things are not divisive and they are not side issues. They are central to the fight. We cannot erase people in our haste to oppose ideological, agenda-driven laws, and that means listening closely, valuing all voices with a stake in this conversation, and working together to ensure that everyone who needs sex education, or birth control, or adoption counseling, or abortion, can get it without shame or judgment.

Here’s Presidential candidate Rick Perry on the law, pandering to his base:

“The sooner we start providing sonograms to those considering abortions, the more lives we can save,” Perry added in a statement. “The Fifth Circuit’s decision requires abortion providers to immediately comply with the sonogram law, appropriately allowing Texas to enforce the will of our state, which values and protects the sanctity of life.”

This is what we’re up against. All of us. Together. Excuse me while I vomit violently for a moment, and then go donate to the Center for Reproductive Rights.


  1. Jenny Wren wrote:

    The comparison with pharmacists refusing to provide birth control medications is one I thought of about a paragraph before you mentioned it, and is a tricky one. I haven’t heard of any courts backing the pharmacists in these cases, although I may be wrong- living in the UK means I’m not 100% up-to-date on US health law.

    But if we require pharmacists to do things that go against their conscience like dispense birth control medicines, then surely the same standard must apply to doctors? Unless you argue the First Amendment, that the government won’t uphold your religious view? That seems to be to be pretty shaky.

    I’ve heard much better arguments against this law, including the one you mentioned about it not being medically necessary. I believe I even read one article (possibly on the Perry Street Palace blog) about it violating doctors’ rights not to be forced to rape women, since most of these early sonograms will probably be done transvaginally. Anyway, I still agree with you on this, even if we quibble about the reasons why.

    Monday, January 16, 2012 at 12:33 pm | Permalink
  2. Evan wrote:

    A further horror that most people don’t realize about this law is that a fetal sonogram in earlier stages of pregnancy is an invasive procedure with an internal vaginal probe. And then there is the process of answering questions to prove that you qualify for a rape or incest exception, which many victims may be unwilling to do leaving them with the option of having a triggering sonogram experience or carrying the pregnancy to term.

    Monday, January 16, 2012 at 12:43 pm | Permalink
  3. s.e. smith wrote:

    Jenny, I wouldn’t say that conscience clauses for pharmacists are an argument against this law, I’m just pointing out a double standard–that pushing ideology on patients is legally acceptable in some cases and apparently providers can’t exercise their conscience in others, which I find repellent.

    Personally, I am vehemently opposed to pharmacists deciding which medications they do or do not dispense on grounds of ideology; medical providers who do not want to be involved in abortion services can choose other specialties, while pharmacists have an obligation to dispense prescriptions as written unless they pose a threat to the health or safety of a patient (e.g. a prescription clearly has an inappropriate dosage).

    The arguments against this legislation are that it is invasive, dehumanising, wildly inappropriate, and shaming.

    Monday, January 16, 2012 at 12:59 pm | Permalink
  4. Helen wrote:

    As a non-USian, who thankfully has access to Teh Evil Socialised Medicine, I’m bemused by the idea that the US has such a massive problem providing healthcare to its citizens that people have to sell their houses when they fall ill, yet the state can impose an invasive and costly *unnecessary* procedure for purely ideological reasons. Will the state pay for its own medical rape of women in the first trimester, or will the women be made to pay for this?

    Monday, January 16, 2012 at 5:58 pm | Permalink
  5. Jenny wrote:

    Jenny Wren:
    I think it’s also important to remember that both birth control and abortion are legal in the US. So a pharmacist is required to provide legal medication, even if it’s “against their conscience.” A Jehovah’s witness couldn’t legally deny someone a blood transfusion, even though that goes against their conscience. There are no laws (that I’m aware of) that limit the pharmacist’s speech when dispensing said legal medication. And I’ve heard plenty of anecdotal stories of pharmacists who freely practice their protected speech to shame women, especially when dispensing the day-after pill.

    There is also a legal right to privacy in this country, which a medically unnecessary – and invasive – procedure clearly violates. (unfortunately, some judges do not respect this) These ultrasound laws are based upon the assumption that they will “save lives” by changing the woman’s mind. But, fetuses are not legally considered “lives,” and voters (when it’s been presented) don’t seem interested in giving fetuses that legal designation. So it’s not really an issue of “conscience” on the side of the abortion provider. We don’t tell doctors to show videos of the side effects of chemo therapy before the patient accepts that as a course of treatment. We don’t require doctors to counsel men on all of the possible emotional (and relationship) problems that can be caused by obtaining Viagra. They aren’t required to administer a medically invasive procedure to ensure the man won’t experience priaprasm. It’s clearly unconstitutional to require abortion providers to attempt to change a woman’s mind, against her and her medical care-giver’s wishes, before a medically safe (and legal, how many times can I say legal?) procedure. So I don’t really think it can be equated with requiring pharmacists to fill a prescription. The former is driven by ideology and a clear violation of church and state. The latter is driven through requirements of a job. There aren’t too many Jehovah’s witnesses working in emergency rooms here for that very reason.

    Monday, January 16, 2012 at 9:04 pm | Permalink
  6. Amy wrote:

    Ach! Last comment was mine, and I mistakenly wrote “Jenny” in the name:)

    I’d like to add that I really enjoy this:

    “This is what we’re up against. All of us. Together.”

    Monday, January 16, 2012 at 9:11 pm | Permalink
  7. Catherine wrote:

    I like that you brought together the conscience rule and the sonogram rule. I can make better arguments that Christ was very clear about not shaming and not humiliating than I can about Christ and the denial of care and denial of birth control. Were I a provider I would be relentlessly using the first to get around the second.

    Thursday, January 19, 2012 at 9:08 am | Permalink
  8. With all the problems we have going on right now, it always amazes me how this one ends up front and center in our politics. You can’t leave other people’s beliefs alone…you have to go creating problems instead of solving real ones.

    Saturday, January 21, 2012 at 12:40 pm | Permalink
  9. Anne wrote:

    Several others have already caught this point, but I just want to echo that the majority of these ultrasounds will be transvaginal scans; meaning that if the patient is not a rape victim when she sought treatment, the state-mandated, unwanted penetration would certainly make her into one before the abortion ever took place.

    Monday, January 23, 2012 at 4:59 pm | Permalink
  10. John M. Burt wrote:

    And let us not forget this law next timethe a Repub accuses someone else of wanting the government to stand between people and their doctors.

    Wednesday, January 25, 2012 at 1:36 pm | Permalink
  11. Amy wrote:

    This is kind of an interesting response from a lawmaker in Virginia. Of course, it was defeated, but she attached a mandatory rectal exam and and cardiac stress test before men could be prescribed viagra.

    Tuesday, January 31, 2012 at 12:28 pm | Permalink