Archive | February, 2012

The Problem with Mandatory Ultrasounds

25 Feb

Last week the Virginia state House approved a bill that would have required women seeking an abortion to undergo a transvaginal ultrasound, a procedure in which sonogram images are generated by a probe inserted into a woman’s vagina, rather than by rubbing the device on her abdomen.  Thankfully, Virginia’s governor, Bob McDonnell, withdrew support for the bill and the Virginia GOP followed.  With an eye on a future presidential run, the governor likely did not want to appear to be the kind of conservative extremist who would say things such as “”Leaders must correct the conventional folklore about the separation of church and state” or who would refuse to recognize an exception in his opposition to abortion for victims of rape or incest.

I found out about this bill the same day I learned that Rep. Darrell Issa had refused to allow any female to testify at a House hearing on contraception–claiming the hearing was reserved only for “leaders of different faiths,” Issa, in addition to his obvious disregard for women’s input on contraception, also implied that no religious leader is female.  However, it was the Virginia bill that really unnerved me, and, complaining to an acquaintance about not only the bill but the assumption that an ultrasound is necessary to a safe abortion, I heard the following response: “What’s so bad about requiring a woman to have an ultrasound?  Doesn’t the doctor do one anyway?  Shouldn’t the woman want to have all the information possible to make an informed decision?”

These are important questions because they encourage advocates for reproductive justice to undertake a little self-examination about the reasons we believe what we do.  Setting aside Virginia’s law for a moment, what exactly is the problem with mandatory ultrasounds and, more importantly, what role do they play in the arsenal of tactics used by abortion opponents?  Obviously, there is the hope that, by requiring a pregnant woman to view the ultrasound, as some states do, she will choose not to go through with the abortion.  Yet 11 states merely require that women seeking an abortion undergo an ultrasound.  As my acquaintance rightly pointed out, since doctors do use ultrasound as a diagnostic tool before performing an abortion, what could be the problem with a statute requiring it?

Professor Carol Sanger’s 2008 article, “Seeing and Believing: Mandatory Ultrasound and the Path to a Protected Choice” (56 UCLA L. Rev. 351) begins with this very question.  In exploring exactly what is wrong with mandatory ultrasound, Sanger analyzes the intersection of politics, culture, and the law, explaining how fetal ultrasounds have become part of our visual culture and how requiring a woman to undergo the experience of ultrasound as a condition of exercising her right to choose not only infringes on her “decisional autonomy”–her right to choose the mental processes by which she will arrive at her decision whether or not to have an abortion–but requires her to submit her own body and its contents to fulfill such a law’s mandate, whether she wants to look at the ultrasound or not.

As Sanger describes, in the context of a wanted pregnancy, the sonographer plays an important role, welcoming the pregnant woman into the first contact with her child–for example, characterizing the fetus as “hiding” or being “shy” if the sonogram is unable to capture it, or being “a good baby” if it does–and interpreting the image on the screen, since the woman undergoing the ultrasound often cannot tell which smudge is the head and which indicates a supposedly anthropomorphic gesture such as waving, smiling or “clowning around.”  Although the fetus is not usually visually or emotionally identifiable without the help of the sonographer, the ultrasound photo takes on enormous symbolic value as cultural proof that a “baby” is real and that it is a part of the family.  These attitudes, in the context of an unwanted pregnancy, have grave implications.

Sanger points out that ultrasound has become part of the definition of informed consent, which is indeed how my acquaintance, in originally posing the question, articulated it.  The ultrasound is masked as necessary to make a medical decision, despite the fact that, for the overwhelming majority of women who seek it, abortion is not a non-essential medical decision for which the patient needs “all the facts” to decide whether or not to sign up, but a decision that may be based on her financial state, capacity to emotionally handle a child, or life goals, among as many other reasons as there are women who make abortion one of the most common surgical procedures in the country.  Having the facts necessary to make a choice with such personal foundations, then, does not involve much in the way of information given in the clinical context.  Sanger further notes that mandatory ultrasounds don’t just inform the woman about a fetus, as many informational requirements for abortion already do, but about “her fetus”: “This particular fetus, the visible one right there on the monitor, is not just a life, it is a relative…This is who she must confront, either by looking it in the eye or by signing a paper saying she has refused to do so.”  Whether the woman chooses to view the fetus or not, the act of forcing her to participate in the sonogram has, as with wanted pregnancies, already made the fetus real.

More importantly, in requiring a woman to undergo an ultrasound and expose herself to the symbolism therein, such laws also force her to undergo a certain thought process spurred on by the force of a photographic (or sonographic) image, even if it is only in her proximity.  The path to deliberative choice, Sanger writes, is part of the protected right to choose, just as the right to vote includes the right to read any literature one chooses, or none, before heading to the ballot box.  However, in the case of mandatory ultrasound, not only must the woman perform a certain mental act by recognizing the existence of her fetus as embodied in an image, but she is forced to be complicit in the image’s production–to ensure that the state meet its goals in protecting the unborn child the patient wishes to abort, the woman “must lie down on a table, partially disrobe, expose her abdomen, have lotion applied, and be stroked with a scanning wand.”  Even without the added humiliation of a transvaginal ultrasound–already a stealth requirement in states that require ultrasounds so early in pregnancy that abdominal ultrasounds will not suffice–the central act of mandatory ultrasounds in disconnecting the woman’s personal, decisional world from her body is deeply disturbing.  The purpose of the ultrasound is therefore that the woman will see herself not as a patient, but as the mother to whom the fetus is “waving” above, and abandon her choice to go through with the abortion.

As women’s rights continues to make the news in the form of misogynistic stunts such as Virginia’s bill or more serious laws defining personhood at conception, those of us who continue to call for reproductive justice should rise to the challenge by examining the roots of our beliefs beyond naked opposition to a law only because the other side is for it (although often rightly so).  In doing so, we may find, as Sanger’s article illustrates, that underlying deceptively simple and agreeable laws like mandatory ultrasound are complex symbolic landscapes and incursions into women’s mental and physical rights that are far more insidious, difficult to dismantle and therefore demanding of our attention than they initially appear.

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