To date, 23 states have enacted laws requiring that abortion providers either perform an ultrasound before abortion or provide information about the availability of ultrasound. Specifically, 8 states require that abortion providers perform an ultrasound before abortion.[1] No provision requiring an ultrasound before abortion has ever been challenged in court.[2]
In Virginia, an ultrasound must be performed prior to abortion, and a woman must be verbally offered an opportunity to view the image. It is not required that the image be displayed or that the woman receive a description of the image.[3]
Questions have arisen in public debate regarding whether a state can “mandate” an ultrasound before abortion, comparing such a “mandate” to the individual mandate in the Affordable Care Act (requiring private citizens to buy insurance). However, ultrasound is the “gold standard” of care in the abortion context, and it is the state’s historic role to regulate the medical profession to ensure that patients are provided the best medical care. To the contrary, it is not the government’s role to force private citizens to pay for health insurance. Moreover, the U.S. Supreme Court has explicitly stated that abortion can be treated differently than any other medical procedure.
Ultrasound is the “gold standard” of care in the abortion context.
Ultrasound is necessary to accurately determine the gestational age of the unborn child. Because different procedures are riskier or even contraindicated later in pregnancy, maternal health is protected by determining gestational age in the most accurate manner. Further, ultrasound is necessary to accurately determine the location of the pregnancy, and specifically to ensure that there is not an ectopic pregnancy which, if left undiagnosed, can result in infertility, rupture of the fallopian tube, and even fatal blood loss.[4]
Abortion providers routinely admit to using ultrasound before performing abortions. In 2012, a Virginia League for Planned Parenthood voice message informed patients that an ultrasound would be performed prior to either surgical or chemical abortion.[5] More tellingly, abortion providers have never challenged in court the actual requirement that an ultrasound be performed. Laws requiring ultrasound before abortion do not change the current practice of those abortion providers currently providing ultrasound; but such laws do ensure that other providers—who are not providing ultrasound and are not protecting woman’s health—begin providing them.
It is the historic role of the state to regulate the medical profession.[6] When physicians are licensed by the state, they consent to oversight and regulation by the state.
For example, states require that physicians have certain qualifications before performing various procedures and regulate who may administer anesthesia. States also require that physicians’ offices be equipped with particular equipment. States license medical facilities in various ways, with some facilities elevated to surgical center status (where certain surgical procedures can be performed), and other basic facilities are prohibited from providing some surgical treatments.
The U.S. Supreme Court has stated, “[u]nder our precedents it is clear the State has a significant role to play in regulating the medical profession.”[7] This role, or “police power,” is not limited to medicine. For example, it is the state’s role to regulate the practice of law. When attorneys are admitted to a state bar, they agree to state oversight and to abide by certain rules and regulations.
Even in the abortion context, the role of the state in regulating medicine has been consistently affirmed. In Gonzales v. Carhart, the Court stated, “[t]he government may use its voice and its regulatory authority to show its profound respect for the life within the woman.”[8] This role of the state goes hand in hand with its “legitimate interests from the outset of the pregnancy in protecting the health of the woman….”[9]
It is not the role of government to force private citizens to purchase insurance—and only government-approved insurance.
Regulating medicine is part of the state’s police power. The purpose of licensing healthcare providers and facilities and providing oversight through regulations and state medical boards ensures that patients—as consumers—are receiving quality medical care. This is much different than mandating that an individual become a consumer of medical care. Regulating medicine for the safety of the public cannot be analogized to mandating the purchasing of health insurance—and then only that health insurance that the government approves.
Again, an analogy to the legal profession is instructive. The state can require that attorneys be admitted to the bar and practice certain procedures in order to protect the clients as consumers; but it cannot mandate that individual citizens hire certain attorneys and become consumers.
Finally, the U.S. Supreme Court has explicitly held that states can regulate abortion differently than any other type of medical care.
In Harris v. McRae, the Court held that a state can distinguish between abortion and “other medical procedures” because “abortion is inherently different” and that “no other procedure involves the purposeful termination of potential life.” 448 U.S. 297, 325 (1980). Thus, even if a state does not require an ultrasound in any other medical context, it is not prevented from requiring a medically-necessary ultrasound in the abortion context.
[1] These states are Alabama, Arizona, Florida, Kansas, Louisiana, Mississippi, Texas, and Virginia.
[2] In Texas Medical Providers Performing Abortion Services v. Lakey, abortion providers challenged aspects of Texas’ law requiring the display and description of the ultrasound picture—but not the provision requiring the ultrasound itself. Moreover, the Fifth Circuit Court of Appeals rejected the challenge, holding that the “required disclosures of a sonogram, the fetal heartbeat, and their medical descriptions are the epitome of truthful, non-misleading information.” 667 F.3d 570, 577-78 (2012).
[3] Va. Code § 18.2-76.
[4] See, e.g., Mayo Clinic, Ectopic Pregnancy (updated Feb. 9, 2012), available at http://www.mayoclinic.com/health/ectopic-pregnancy/DS00622 (last visited Jan. 25, 2012).
[5] See A. Goodman, Ultrasounds Already Part of VA Planned Parenthood Abortion Procedure, Commentary (Feb. 21, 2012), available at http://www.commentarymagazine.com/2012/02/21/ultrasounds-va-planned-parenthood-abortion-procedure/#more-784472 (last visited Feb. 7, 2013).
[6] See, e.g, J.E. Galva et al., Public Health Strategy and the Police Powers of the State, Pub. Health Rep. 120(Supp. 1):20-27 (2005), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2569983/ (last visited Feb. 7, 2013) (“Historically, the exercise of public health police power was enforced with strong support of the courts and restraint of police power occurred only when there was open disregard for individual rights.”).
[7] Gonzales v. Carhart, 550 U.S. 124, 157 (2007).
[8] Id.
[9] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 846 (1992); see also Gonzales, 550 U.S. at 145 (quoting this central holding of Roe v. Wade and Casey).
