Ultrasound legislation is sweeping the country. This year alone 14 states have introduced bills, and eight already have them. Here’s how it took off.
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If there was a seminal moment in the ongoing ultrasound fight, it came five years ago on a spring day in Oklahoma City. That’s when a Republican-dominated Oklahoma legislature overrode Democratic Gov. Brad Henry’s veto of a bill mandating ultrasounds in order to end a pregnancy.
The 2008 law was struck down just a year later on a legal technicality – a judge ruled the omnibus bill dealt with too many subjects. But experts say that legislation served as a template for the raft of proposed ultrasound mandates now sweeping across the country. “It became the model that states have been trying to adopt either entirely or in bits and pieces,” said Elizabeth Nash of the Guttmacher Institute, a reproductive health research organization respected on both sides of the abortion debate.
At present, eight states have some type of ultrasound requirement prior to an abortion. But in just the first three months of this year, an additional 14 have introduced copycat legislation. “The issue of ultrasounds really didn’t kick off until the mid-2000s,” said Nash. “But the movement on the state level wasn’t anything like we’re seeing today.”
For instance, in Kentucky, the state Senate has again cleared a bill requiring a woman to view an ultrasound, though it faces a steep climb in the Democratic-controlled House. Earlier in the year, Governor Mike Pence of Indiana made headlines for attempting to require a double-ultrasound – one before and one after an abortion. Following a blitzkrieg of negative headlines, that idea was scrapped, but abortion rights activists are still fighting the watered down version. Until recently, Tennessee had considered a bill requiring providers show or describe an ultrasound image to a woman prior to any abortion. The only reason the sponsors dropped the bill was so it wouldn’t divert attention from a separate anti-abortion constitutional amendment drive.
“It’s the latest attempt to try to intimidate or frighten a woman who’s dealing with a difficult situation,” said Betty Cockrum of Planned Parenthood Indiana (which was defunded by lawmakers in 2011).
In the ultrasound argument, the anti-abortion movement believes it has found a trump card in its incremental battle against the right to choose. “The whole abortion debate can come down to, ‘I’m pro-life, I’m pro-choice, let’s agree to disagree and walk away with each other,’” explains Marjorie Dannenfelser, president of the anti-abortion Susan B. Anthony List. “Where the common ground is found is where we look very closely at what the act really is. Ultrasound helps answer the question: what is that thing that we’re debating about?”
For those opposed to abortion, the ultrasound offers a vivid, graphic reminder that the debate is ultimately about the unborn – and pivots away from the more abstract debate centered around rights. It’s an effective strategy. In July 2011, a Gallup survey found public opinion in favor of the ultrasound requirement – albeit narrowly – 50 to 46 percent. Duly emboldened, GOP Gov. Bob McDonnell of Virginia introduced legislation a year ago which would have required women to undergo medically unnecessary transvaginal ultrasounds.
But it backfired. Amid the firestorm, Gov. McDonnell had the transvaginal requirement stripped – instead signing a law ordering abdominal ultrasounds before abortions – and a throng of progressive and women’s groups crowed. McDonnell’s approval rating fell and the image of the anti-woman GOP hardened in an election year. One poll last year found 52 percent of Virginia residents opposing the new law.
Even Dannenfelser concedes her side lost the public perception campaign. “[Our opponents] really did a fabulous job worthy of any P.R. campaign academic class, making this all about requiring an invasive procedure. It’s the first time they’ve gained the upper hand,” she said.
The Virginia maelstrom demonstrated that the ultrasound strategy holds significant political risk. Up until the furore, Governor McDonnell had been spoken of as a potential running mate for Mitt Romney – he soon fell out of consideration after that. But in reality, much of this debate is occurring at the margins. Ultrasounds are already very commonly provided before abortions. What these laws do is essentially subvert a doctor’s discretion and force a woman to undergo an invasive procedure and take a glimpse at what she’s deciding to terminate. And that’s no small moment for a woman in a fragile emotional state.
Dannenfelser predicts legislatures will continue the push because the public sees the logic in giving women more information before such a heart-wrenching decision. “If it were an appendix, no one would even think about it . . . The doctor would explain what the result actually was,” she said. “It’s like I just did a diabetes test on you, would you like to see the results? If you say no, I don’t need to see it, then fine. It defies common sense to me to not be offered the results of a test.”
But Nash offered another motive. “It is a way for the pro-life movement to say to the public, they don’t think women are getting good information on abortion,” she countered.
Abortion rights activists are well aware that their opponents are resilient. Oklahoma is enough of a reminder. After that initial court setback in 2008, the GOP legislature rammed through another ultrasound requirement in 2010, which again wound up being struck down by a court. Both sides are girding for more political and legal fights, with Dannenfelser predicting it won’t truly be settled for years.
“I would be surprised if it doesn’t get [to the Supreme Court,] she said.
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