The Fifth Circuit Court of Appeals denied a request to reconsider a lawsuit challenging a Texas law that forces doctors to perform an ultrasound on a woman, whether she wants one or not, before an abortion. That means the law can take effect as soon as state officials set a start date to begin enforcing the law.
The law requires women seeking abortions to be presented an ultrasound image and a fetal heartbeat before they can have the procedure. Since the vast majority of abortions are performed prior to the 12th week and traditional ultrasounds cannot capture reliable fetal images for many weeks later, compliance with the law will require vaginal ultrasounds, an extremely intrusive procedure that serves the single purpose of trying to dissuade a woman from having the abortion.
Doctors challenged the law arguing it unconstitutionally overrode their medical opinions, interfered with patient relationships, and made them “a mouthpiece” of the state by requiring certain tests and instructing how those tests should be presented to patients. If the doctors do not or refuse to follow the law they lose their medical license.
But all of this seems just fine to the Fifth Circuit Court of Appeals. What’s worse, the judges decimate the notion of informed consent to justify the intrusion. The court held that compelling doctors to make “factual statements” to a patient is permitted under informed consent, so presumably from the court’s perspective, compelling doctors to run a specific battery of tests, under every situation whether medically indicative or not, is also part of informed consent. “The required disclosures of a sonogram, the fetal heartbeat, and their medical descriptions are the epitome of truthful, non-misleading information,” the three judges wrote.
Much of the decision is grounded in the 1992 Supreme Court decision Planned Parenthood v. Casey that allows states to require certain factual, informative materials be provided to abortion patients. Fifth Circuit Chief Justice Edith Jones held that ordering these tests and mandating doctors describe the results to their patients is the logical legal extension of that ruling.
The Fifth Circuit’s willingness to extend Casey so far that mandated intrusive tests are now to be considered a routine part of receiving abortion care may have done more to set women’s health back then all the attacks launched by Republicans in the last year combined. This decision further ingrains into our jurisprudence a worldview that now has the force and effect of law that women simply cannot be trusted to make informed medical decisions on their own without coercion and manipulation by the state.
If given the opportunity, I’m sure Justice Scalia would agree. So women’s health advocates now must ask whether we offer the Justice the chance (and hope that mandatory vaginal penetration by the state is even too much and too offensive for Justice Kennedy) or whether we let this abomination in the 5th Circuit stand. Either way women’s status as second-class citizens stands in at least one federal appellate circuit while our national political conversation remains fixed on outlawing contraception.
Time to dig in for the fight because it’s getting nasty.
Photo from steakpinball via flickr.
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